Untitled Texas Attorney General Opinion ( 1958 )

Hon. Robert S. Calvert OPINION NO. WW-437
Comptroller of Public Accounts
Capitol Station Re: Whether Comptroller
Austin, Texas, may permlt correction of
Inaccurate claim for re-
fund of motor fuel taxes
Dear Mr. Calvert: subsequent t6 Its filing.
We ,q&te the followlng,excerpt from your letter of
April 29, '1958,requesting our opinion on the above cap-
tioned matter:
"The claimant filed a claim, duly sworn to,
for refund of tax paid on 8,465 gallons of motor
fuel shown In the claim form to have been used
entirely off the roads and highways, refundable,
and In the space on the claim form headed, 'Qallons
Used on Roads and Highways, No Refund', the word
'none' had been typ:d In.
"Investigation of the claim In the field re-
vealed that a considerable part of said motor fuel
Chad beerIused taxable In trucks, pickups and a Jeep
on the highways.
"The claimant stated that the claim had been
prepared by a new bookkeeper aided by the local
Farm Bureau Office, and that he signed the claim
without noticing that the taxable highway fuel
had not been deducted. All previous claims filed
over the years showed careful preparation and large
deductions for taxable highway use. Obviously, the
claim was filed without wllful Intent to obtain tax
refund to which he was not entitled."
The Comptroller's form 7065-11 for farmers and ranchers
making an affidavit for claim of refund also contains the
following question: "Have you used any fuel covered by
Invoice of exemption on the roads and highways In any ve-
hicle (,lncludingtractors hauling products, or doing c:stom
work)?' To this question the applicant answered "yes.
Thus the claim was Inconsistent on Its face. The Invoices
of exemption which were attached to the application and
Hon. Robert S. Calvert, page 2 (WW-437)
which were made out at the time the gas was used correctly
stated the amount and purposes for which It was used.
You ask whether the entire claim has become forfeited
or whether the Comptroller may allow a revlslon of the
application so as to permit recovery of the amount of refund
to which applicant was actually entitled.
Article 7065b-13, Vernon's Civil Statutes, authorizes
a refund of motor fuel taxes In certain Instances. We quote.
the following pertinent provisions of this article:
"(a) In all refund claims filed under this section
the burden shall be on the claimant to furnish suffl-
,,clent and satisfactory proof to the Comptroller.of the
clalmant~s compliance with all provisions of this
Article; otherwise, the refund claim shall be denied.
"(b) Any person (except as hereinafter provided),
who shall use motor fuel for the purpose of operating
or propelling any~statlonary gasoline engine, motor-
boat, aircraft, or tractor used for agricultural pur-
poses, or for any other purpose except In a motor
vehicle operated or Intended to be operated upon the
public highways of this State, and who shall have'pald
the tax Imposed upon said motor fuel by this Article,
either directly or Indirectly, shall, ivhensuch person
has fully complied with all provisions of this Article
and the rules and regulations promulgated by the
Ce tax
paid by him less one and one-half per cent (l&6) allowed
distributors. wholesalers and jobbers, and retailers
under the provisions of Section 2 (b)of this Article
. . .
I,
. . .
"(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 delivered 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 ,theaffidavits or other evidence submitted,,
that the sale or delivery of the motor fuel was made
more than six (b) months prior to the date.the refund
claim was actually received In the Comptroller's office.
Ron. Robert S. Caivert, page 3, (,>X-437)
The refund.clalm, with all dupXcate Invoices of
exemption required by law to be Issued with the
sale of refund motor fuel Included as a part of
said claim, shall be verified by affidavit of the
claimant, or a duiy authorized agent of the clalm-
ant, and shall show the quantity of refund motor
fuel acquired and on hand at the beginning and
closing dates of the period ccvered in the refund
claim filed.
"It shall be the duty of every person claiming
tax refund to verify the 'contentsof the claim filed
and any such person who shall file claim for tax re-
fund on any motor fuel which has been used to propel
a motor vehicle, tractor or other conveyance upon the
publ:c highway of Texas for any purpose for which a
tax refund is not akthor:zed herein, or who shail
file anv duollcate invoice of exemntion In a claim
for tax refund on which any date, ‘figureor other
material Information has been falslfled or aitered
after said duplicate Invoice OF exemption has been
duly issued by the refund dealer and delivered to
the claimant, shall forfeit his right to the entire
amount of the refund clainafiled." (Emphasis supplied
throughout.)
We think that Article 7065b-13 is plain and unambiguous.
Under Its specific terms the claimant has the burden of show-
ing compliance with all of the provisions of the article and
the rules and regulations promulgated by the Comptroller.
Such full compliance is requisite to reimbursement .ofthe tax.
The claim for refund In this case did not fuliy comply, but,
on the contrary, speclficaliy failed t0 exclude the amount Of
gas which had been used in operating motor vehicles upon the
public highways of this State.
Hon. Robert S. Calvert, page 4, (W-437)
The
". statute
--_ speaks
. -~ in clearly
- mandatory
. terms In stating
that
ciaim for tax
In Cpini.onNo. v-1487 this office sdvl.sedyou that the
tax refunds authorized by the Motor Fuel ?;ax :~aware in the
nature of exemptions or exceptions and must be &trlctly con-
strued. The statutory procedure mustbe strlct;y complied
with in order to entitle the cfaims,nttc the right granted
h?m by the statute.
The results which ensue in thl.scase are no harsiierthen
those which ensue In many cases where a taxpayer mistakenly
or unintentionally fails to comply wlr,hthe provls:ons of t,ne
law. Section ff) of Artl.c?e*(065b-13expressly provides
that no refund of tax shail ever be mad? in those cases in
wnich the sale or delivery of the motor fuei was made more
than six months prior to the date the refund claim was rec~eived
In the Comptroller's office. No one would question the manda-
tory nature of this provision, yet a taxpayer tight aa lnno-
cently and mistakenly fall to file his claim for reftlndwlthln
the prescribed six months' period as he might mistake the
number of gallons of motor fuei on which the amount of his
refund should be based. As a practical matter, the taxpayer
rather t.hanthe-Comptrolier must shoulder the burden of
ascertaining the correctness of his claim, or the burdens
of enforcing the Motor Fuel Tax law would be immeasurably
Increased.
in any event, regardless of our vler;as to the deslrabil-
lty or undesirability of the result we have reached in this
case, it has been stated tha~tIt Is the proper function of a
court to enforce the law as made by the Legisiature rather
than to announce what the law should be or to speculate as to
why it Is as It Is. No court is authorized under any pretext
to nullify, repeal or rewrite an unambiguous act to conform
to its own notions of justice or wisdom. 39 Tex. Jur. 163,
164, Statutes, Sec. 89. Certainly this office could not do
that which is beyond the authority of a court of law. You are
therefore advised that the claimant in the case you have sub-
mitted for our consideration has forfeited his right to'the
entire amount of'the claimed refund.
Hon. Robert S. Calvert, page 5, (:/;5;-:.!>7>
SUMMARY
Where claim for refund of motor fuel
taxes included a claim for refund on motor
fuel which had been used for a purpose for
which a tax refund was not authorized,
claimant forfeited his right to the entire
amount of the.refund claim filed.
Very truly yours
WILL WILSON
Attorney General of Texas
APPROVED:
OPINION COMMITTEE:
George P. Blackburn, Chairman
Howard Nays
Leonard Passmore
REVIRWEDPORTHE ATTORNRYGENERAL
BY:
W. V. Geppert