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                         July 19, 1957

Hon. Rdbert 9. Calvert         Opinion No. WW-199
Comptrollerof Public Account.6
Capitol Station                Re: Motor Fuel Tax Refund
Austin, Texas
De&r Mr. Calvert:
          You have reque8ted an opinion a8 M     whether you
are authorized to pay a Motor FuIl Tax Refund.     You refer
to Article        Verhon’s Civil Btstutee, Mb     particularly
subdivlei6n (g of Seatlon 13 of #ald~Artiole.     aa laet
amended by Acta, 1951, 52nd %egisiature,iage     695, Chapter
402, Section XXII, Secsion 4.
           You eet forth the pertinent facts aa follovis:
           “A rancher onerates a 200’000 aCre
      ranch irjKing Courit$,Texas which is
      b$ected North to S6uth by State Hi way
      No. 83, and Bast to Weet by State Hsi”ghway
      NO. 82, on which truoka, plctipS and
      power wagons are umed for all general
      ranch purposes. A power wagon is & truck
      upon which ie lnatalled a separate unit ured
      for lifting purpoeee.
            “In the CourBe of, the rcinchw&k
      these vehiclel), which are all licensed
      for highway uee by the State Highway
      Department travel doily or frequently
      over the bleectlng hlP;hwaJrs  n moving
      such vehiglea from one diviri, on bf the
      ranch to another. They trrvel from
      short dietancee  up to and ab far &s
      22 inlleslper trip between entrance# to
      the ranch divisions. The Cotiptroller
      ha8 declined to pay a tax refund claim
      filed by said rancher becauee ;norecord
      ~88 kept of the travel over the bigecting
      state highways and the refund motor fuel
      used in euch travel was not deducted fPom
      the claim.
Ron. Robert S. Calvert, page 2 (WW-199)


        "The rancher contends that such vehicles
    are used entirely on the ranch (off the high-
    way) except for Incidentaltravel necessary
    to move the vehicles from one ranch property
    to another, and that such highway travel is
    so Incidentalto the basic ranch or non-highway
    use of such vehicles that it does not constitute
    a taxable use within the intent of the Legislature.
         8,
              .   .   .


         II
              .   .   .



         "Will you please advise whether the
     Comptrollermay, under the existing law,
     approve a claim for tax refund In which the
     claimant has failed to deduct motor fuel
     used on the highway In incidentaltravel
     from one division of his ranch to another?"
          It is our opinion, based on these facts, that you
properly declined to pay the tax refund claim for the reason
that no record was kept of the travel over the public highway,
and the refund motor fuel charged to travel over the public
highway was not deducted from the claim.
          Subdivision (f) of said Section 13 of Article 7065b,
as last amended by the same Act of the 52nd Legislaturewhich
last amended subdivision (g) of this Article is also applicable.
          The first paragraph of subdivision (g) of Section
13 of said Article 7065b, as last amended In 1951, reads as
follows:
         I'(g) No tax refund shall be paid on
     motor fuel used in automobiles,trucks, pick-
     ups> Jeeps, station wagons, buses, or similar
     motor vehicles designed primarily for highway
     travel, which travel both on and off the high-
     way except as hereinafterprovided. (a) If
     any such motor vehicles are used entirely for
     non-highwaypurposes except when propelled
     over the public highway to obtain repairs,
     oil changes, or similar mechanical or main-
     tenance services, or when propelled over the
     public highway for other incidentalpurposes,
     or (b) if any such motor vehicles are operated
     exclusivelyduring the period covered in any
  .    .




Hon. Robert S. Calvert, page 3 (WW-199)


      refund claim
      .       ^. _.over prescribed
                        . .        courses Wnf3
                                            . . .
      between rixea terminals or cases, in wnlcn
      such vehicles travel the same mileage on
      the highway on each trip and the same mile-
      %ae off the hiahwav on each such trio.




          While the syntax of this paragraph might be altered
for more ready comprehension,still It Is evident that the
portion of this paragraph beginning with the first under;;;;lng
qualifies all the preceding portion of this paragraph.
portion ofxe law means just what It says: That a "cornlete
record of each trip traveled over an   art of th ub&-
wa&' must be kept, including all tri;s'for incidizal purposes.
   8 record furnishes the basis of the deduction for motor
fuel -on     the public highway In the claim for motor fuel
tax refund.
          The third paragraph of said subdivision (g) prescribes
definite and exact methods by which
           "A claimant may account for any part
      of refund motor fuel used upon the public
      highway, and not eligible for tax refund,. . .'I
          These methods are clearly described and just as
clearly require exact recorded measurement of gasoline or
mileage charged to use upon the public highway and deducted
from the refund motor fuel covered by any invoice of exemption
in the claim.
          The fourth and last paragraph of said subdivision (g)
reads as follows:
           "The records prescribed hereinabove
      shall be kept for a period of six (6) months
      from the date any claim, to which such records
      are pertinent, is filed in the Comptroller's
      office, and no tax refund shall ever be paid
      in whole or Iinpart when a part of the motor
Hon. Robert S. Calvert, page 4 (WW-199)


    fuel purchased on any invoice of exemption
    contained in the claim has been used to
    operate a motor vehicle, tractor, or other
    conveyanceof any kind or descriptionupon
    any public highway~forwhich a tax refund
    is not authorizedherein, unless the
    claimant has kept for the time and in the
    manner herein provided a complete record
    of all such uses for which no tax refund
    1s authorized.",(Underscoringadded)
          This fourth paragraph of s&d subdivision (g), like
the first paragraph thereof quoted %bove, is clear and unam-
biguous in requiring a complete record of every trip traveled
over any part of the public highway, irrespectiveof the pur-
pose of the trip.
          The second sentence of the second paragraph of aub-
division (f) of said Article 7065b, Section 13, is In harmonv
with the various provisions of subdivision (g)-of that Article
wherein it states:
         "The claim for tax refund shall Include
    R statement that the Informationshown in
    each duplicate invoice of exemption attached
    to the tax refund claim is true and,correct,
    and that deductionshave been made from the
    tax refund claim for all motor fuel used on
    the public highway of Texas %i@ for %ll motor
    fuel used,or otherwise dlsposed~of~in any
    manner ln'which:%'t&crefund ls:not author-
    ized herein:" :(Underscorlng%dded)
                         of said Section 13, of said Article
          Subdivision-"(a)
7065b requires no IaterpretatJonand reads as follows:
         "In all refund claims filbh"underthis
    section the ~burdenshall be on the Claimant
    to furnish sufficientand satisfactoryproof
    to the Comptrollerof the claimant18 compliance
    with all provisions of this Article; otherwise,
    the refund claim shall be denied."
          This opinion does not consider nor relate to any
type of tractor usage upon a public highway, In that your
Inquiry covers only trucks, pick-ups and power wagons.
(Paragraph2 of the quotation from yourinquiry).
             _     .
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          Hon. Robert S. Calvert, page 5 (WW-199)


                                       SUMMARY


                       When no record Is kept of "refund motor
                       fuel" used by trucks, pick-ups, or Bower
                       wagons while travelingupon a pub1j.c
                       highway between divisions of a ranch,
                       and such motor fuel is not deducted
                       from the claim, as required under the
                       various Sections of Article 7065b, no
                       tax refund on any part of such refund
                       motor fuel purchased %nd~covered by a
                       particular involc~ of exemption and
                       used off of a public highway ie authorized.
                                           Yours very truly,
                                           WILL WILSON
                                           Attorney oeneral


                                           BY
                                                 W. E. Allen
                                                 Assistant
          WBA:gs

          APPROVED:
          OPINION COMMITTEE
          H. Grady Chandler, Chairman
          Mary Kate Wall          'I
          Howard Mays
          W. R. Hemphill
          Wayland C. Rivers, Jr.
