Untitled Texas Attorney General Opinion ( 1952 )

. .
July 30,1952
Hon. Robert 6. Calvcrt Opinion No. V-1487
Comptroller of Public Accounk
Auetin, Texam Ret Authority of the Comptroller
of Public Account6 to honor
niotor fuel tax refund claim6
which have been revised to
exclude those based on ex-
emption invoke6 falsified by
Dear Sir; claimant’0 boohheeper .
Your request for an opinion of thk office ia based on the
following fack:
Your office hag received two refund claims in the amount6
of $743.35 and $574.53, which were filed under the provkions of
Article 7065b-l3, V. C. S. The fir& claim k for refund of tax on
motor fuel ueed by the claimant in hi6 own farming operations, and
the second ta for refund on motor fuel used by the estate of a de-
ceaned perron, the farming operations of which are under the muper-
vkion and management of the firrt claimant.
Attached to and flied a8 a part of the firet claim were four
duplicate invoicee of exemption which had been falrified by altera-
tionm of the dakr of purchase and delivery, to bring them within the
six montha’ limiktion fixed by law for the payment of tax refunds.
Attached to and filed a8 a part of the second claim were sfx dupti-
cate invoiceB of exemption falrified in the mame manner and for the
Bame parpone. All ten of the alkred invoice& of exemption were
precluded by law from tax refund becauee deliveries, as shown by
the date8 on the original copies of Bach exemption6 mainkined by
the refund dealer, were made more than six month8 prior to the
date the ciaimr were executed and filed.
You have been informed that both claim8 were prepared
by an employee who keeps the books of ‘the two farming operations.
Both claims were eubecribed and aworn to by another employee who
ack as farm manager of the two operations. Payment of both claims
was denied under the provkione of mtbdivkion (f) of Article 706513-13.
The attorney for these claimant* har e&ted in rubstance
that the boohheeper, not realiuiug the seriousneBB of the offenne and
in order to avoid censure for letting the exemptions become pant due,
had changed the dates on the exemptioau of her own volition and
Hon. Robert ~6. Culvert, Rage 2, (V-1487)
i I: ;,, ,,: _
without the authority, direction, or knowledge of ths individnal
claimant or anyone else in the organination of either claimant, and
that neither the individual claimant nor the executor of the estate
would have condoned such act.
On the basis of the above facts, you ask whether your
department can legally permit the claims here involved to be re-
vised to exclude the altered invoices of exemption and then pay
them in the amounts computed from the unaltered exemption in-
voices.
The pertinent parts of Article 7065b-13. V.C.S., read as
followsr
“(a) In all refund claims filed under this section the
burden shall be on the claimant to fur&h sufficient and
satisfactory proof to the Comptroller of the claimant’s
compliance with all provisions of this Articlei otherwist,
the refund claim shall be denied.
s(b) Any person, (except as hereinafter provided)
who shall use motor fuel for the purpose of operating or
propelling any stationary gasoline engine, motor boat,
aircraft, or tractor used for agricultural purposes, or
any other purposes except in a motor vehicle operated
or intended to be operated upon the public highway of this
State, and who shall have paid the tax imposed upon said
motor fuel by this Article, either directly or indirectly,
shall, when such person has fully complied with all pro-
visions of this Article and the rules and regulstions pro-
mulgated by ,the Comptroller, be entitled to reimburse-
ment of the tax paid by him less one pe.r cent (1%) allowed
distributors for collecting and remitting the tax and com-
plying with other provisions of the law. . . .
.
. . .
s(d) When motor fuel is ordered or pnrchased for
refund purposes the purchaser or recipient thereof shall
state the purposes for which such motor fuel will be used
or is intended to be used, and shall request an invoice of
exemption which shall be made out by the 6elling refund
dealer at the time of such delivery, or, if the motor fuel
is appropriated for use by a refund dealer it shall be
made out at the time the motor fuel irr appropriated or set
aside for refund purpose,s. The invoice of exemption shall
state: the refund dealer’s license numberi the date of pur-
chase and the date of deliveryi the names and addresses of
the purchaser and the selling dealer@ the purpose for which
. ., .
Hon. Robert S. Culvert, page ~3.(V-1487)
such motor fuel wlll be used or is intended to be usedi the
number of gaIlonr.delivered, or appropriated for use1 and
any other information theComptroller~ may prescribe., No
refund shall be allowed unless an invoke of exemption is
made out at, the time of delivery, except as hereinafter pro-
vided. . . .
,.
. . .
s(f) Any person entitled to file claim for tax refund
under the terms of this Article shall file such claim with
the Comptroller on a form prescribed by the Comptroller
within six (6) months from the date the motor fuel was de-
livered to him, or from the date the.motor fuel was lost,
exported or sold to the United States Government, and no
refund of tax shall ever be made where it appears from the
invoice of exemption, or from the affidavits or other evi-
dence submitted, that the sale or delivery of motor fuel
was made more than six (6) months Drier to the date the
and closing dates of the periods covered in the r:fund
claim filed. . . .
.
. . .
“It shall be the duty of every person claiming tax
refund to ver e contents 0 e claim filed and an
sue: p”r’sF %othall file cla:z for i refund on a110 P.2d
651 (Colo. Sup.7941).
The tax refund section of the act conkim detailed reporting
I
and recording provisions which were designed to prevent kz evasion,
fraud, and the filing of stale claims and to aid in a uniform and ef-
ficient administration of the law. The forfeiture pr.ovisions of sub-
division (f) of Article 7065b-13, V.C.S., here involved, were only
recently enacted by the Legislature (Section XXII of Chapter 402,
Acts 52nd Leg., R.S. 1951, p. 695) in an obvious attempt to strengthen
the act with regard to the filing of falsified or altered refund claims.
In construing this statute, it is apparent to us that the clear
intent of the Legislature was set forth in plain wording in the pro-
vision that the claimant sshall forfeit his right to the entire amount
of the refund claim fileds where the invoices, of sxempfionre al-
tered or falsified with regard to dates, figures, or other material
information. Responsibility for the acts of the claimant’s agent or
employee in falsifying or altering the invoices of exemption must
be imputed to the claimant, otherwise the particular forfeiture pro-
vision could, as a practical .matter, be circumvenkd with impunity.
There is no statutory provision which would authorize the
Comptroller to waive this forfeiture provision on equltable or other
grounds and he, therefore, has no authority to do so. Att’y Gen.
Op. V-835 (1948).
Your request did not present any questions with regard to,
and we are not passing upon, the possible applicability of various
other statutory provisiozs for fines, penalties, or criminal prose-
cution in this instance.
It is our opinion that the person claiming the taz refunds
in question,, which included certain altered or falsified invoices
of szemption. forfeited his right to the entire claims which were
filed.
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Hon. Robert S. Calvert, page 5 (V-1487)
SUMMARY
The right of a claimant to the refund of motor fuel
taxes which is based in whole or in part on’altered or
falsified invoices of exemption must be forfeited in its
entirety. Art. 7065b-13(f), V.C.S.
APPROVED: Yours very truly,
W. V. Geppert PRICE DANIEL
Taxation Division Attorney General
Mary K. Wall
Reviewing Assistant
?izkEGk
Charles D. Mathews Assistant
First Assistant