Untitled Texas Attorney General Opinion ( 1957 )

-;...J.,. ‘. Honorable Robert S. Calvert Comptroller of Public Accounts Capitol Station Austin, Texas Opinion Ro. WW-172 Re: The legality of paying tax refunds on motor fuel Dear Mr. Calvert: to the Civil Air Patrol. You request an opinion of this office as to the le- gality of paying motor fuel tax refunds to the AustLn'Squad- ron of the Civil Air Patrol under certain conditions which are eet out below. Your letter of May 13, 1957, containing your request for an opinion, together with the enclosed letter of Dewitt C. Rogues, Commander of the locp,lCivil Air Patrol Squadron, dated April 22, 1957, and addressed to your office, indicate the following lnformatfon. The local squadron fs a part of the Civil Air Patrol, a volunteerscivilian organization chartered by Congress (the Civil Air Patrol Is established as a volunteer civilian aux- lliary of the United States Air Force under the provisions of Sectfon 626-L, Tftle 5, and Section 201, Title 36, U.S.C.). You indicate that there are four classifications of missions which are flown by the Patrol which you describe as indicated below: "1. At times the Austin Squadron performs observaXon missions for the Civilian Defense Ground Cnrps, for which mlssione the pilots or plane owner8 are usually reimbursed by the Federal Government for the cost of the gasoline and oil used. "2. The Squadron operates orientation flights over the area assigned to it a6 a training program for Its cadets. Hon. Robert S. Calvert, page 2 (WW-172) ‘3* It makes miscellaneous flights to transport sick Andyinjured person5, to trans- port blood plasma5 and serums, and to co- operate with Sheriff's departments and State Highway Pa%rols in searching for lost or drowned persons and lost airplanes. '4. Each of +h "*e members of and volunteers to the Squadron make personal trips in their privately-owned planes but the Civil Air Patrol regard these personal business or pleasure trips as also constituding official activities of the Patrol since each member of the Squadron is requfred to perform a minimum flying operation each month to keep in training and practice for the duties directed by the Civil Air Patrol." On Air Force ordered search and rescue missions and on civil defense Ground Observer Corps missions, under orders from higher headquarters, the pilot is usually reimbursed from Federal funds for gasoline and 011 purchased and used. There is no reimbursement for gasoline and oil used on any other flights of this Civil Air Patrol, On no flights do Civil Air Patrol personnel receive pay or per diem from any source. The Austin Squadron of the Civil Air Pa%rol is com- posed sf thirty-six members, each of whom owns an airplane which is used to fly %he mfssi~onsof the Civil Air Patrol. The squadron also mainlains two airplanes of its own which were donated by the Air Force, and which are used to accomplish the purposes of the Civil Air Patrol. In addi%ion to the flights flown by Patrol members, other local airplane owners, no% members of the Civil Air Patrol, 'arecalled upon and volunteer their services and air- planes in acoompifshing some of the missions of the Civil Air Patrol, particularly emergency missions. The question 7 ou pose in your request for an opinion is substantially this: 'To whom may the tax on motor fuel (pur- chased in the name of the Civil Air Patrol and used on Patrol flights) be legally refunded under the terms of Article 7065b- 13, Vernon's Civil Statutes, which article provides in part for the refund of the motor fuel tax on fuel used in airplanes. Since the tax on gasoline used in airplane5 is refundable under Art. 7065b-13, the question resolves itself into whether the tax on motor fuel used on Civil Air Patrol flights should be Hone Robert S. Calvert, page 3 (WW-172) refunded to the Patrol or to the airplane owner5 who fly the particular Patrol missions. To justify the refund of all the taxes to the Patrol, it is necessary to find that the Patrol is the purchaser of the gasolfne and therefore entftled to the refund. Texas'Com- pans v. Miller, 165Fed, 2d ill,?cert. den. 333U.S. WO. When Civil Air Patrol missions are flown, the gas, of course, is being used for Patrol purposes, and hence, it would follow that the Patrol is the user and, In effect, the purchaser of the mo%or fuel consumed. The flier, who purchases gasoline in the name of the Civil A%r Patrol for Patrel mis- sfons fs, accordfngly, merely the agent for %he Patrol. Therefore, the tax on motor fuel which has been pur- chased fn the name of the CSvil Air Patrol can be refunded le- gally to the Patrol w%thout v%ola%%ng subsection (1) of Arti- cle 7065b-139 whfch forbids the assfgnment of the right to receive a tax refund, fn the following instances; 1. Where motor fuel is purchased in the name of the Civil Air ?a%rol to opera+ the two airplanes which are as- sfgned to the Austin squadron. 2. Where mo%or fuel is purchased in the name of the CfvLelALr Patrol by members of the Patrol to fly any of the mlssfons assfgnrd to '-hePatrol, Including training flights to ma$ntain proficiency, even though the fl9ght may also be for business OP personal reasons of the Patrol member making the flight. 3. Where motor fuel is purchased in the name of the Cfvil Afr Patrol.by non-members who have volunteered their services, which services are accepted by the Patrol, and who fly any of the first three missions set out above. How- ever9 non-members cannot make purchases of motor fuel in the name of the Civil Air Patrol for training flights as pres- cribed by the fourth mission set out above so that the Pat- rol can receive the tax refund, since they are no% members of the Patrol and have no duty to maintain proficiency by making training flights. Thus, the Civil Air Patrol cannot receive tax refunds for any private, personal or business trips of non-member flfers even though these flights would have a tendency to increase the proffeiency of the fliers in the event they are called upon a% a subsequent date to fly other types of misseons under the authority of the Pat- rol. Hon. Robert 5. Calvert, page 4 (WW-172) SUMWiRY The tax on motor fuel purchased in the name of the Civil Pfr Patrol by Its members and by non-members flying Patrol missions can be refunded to the Civil Air Patrol, except the tax'pafd by non-members cannot be 80 re- funded where the non-member makes a personal or business trip. Very truly yours, WILL WILSON Attorney General BY o Zwfe& r Assistant LFZ:bk APPROVED: OPINION COWTTEE: H. Grady Chandler, Chairman Wallace P. Ffnfrock .---- Houghton Brownlee. Jr. REVIEWED FOR THE ATTORNEY GENERAL BY: Geo. P. Blackburn