THE ATTORNEY GENEXZAL QF'TEXAS AUSTIN xi. - March 21, 1963 Honorable Robert S. Calvert Opinion No. C- 42 Comptrollerof Public Accounts Austin, Texas Re: Whether the failure to file refund claim wlthln the time prescribed by law, Article 10.14, Chapter 10, Title 122A, V.C.S., for taxes paid on special fuels used off the Texas highways will preclude credit beingtakeqfor such '. tax payments on sub- sequenttax accruals Incurred by the user Dear Sir: and related questions. You have requested an opinion from this department and In connectiontherewith have given ua the following facts: "A Texas motor carrier, llcensed'aaa user-importerof special fuels, operates a fleet of trucks In Interstate commerce on which he pays taxes to the dealer or seller of the special fuels and there- after reports and accounts for the taxes due on the use of special fuels on the Texas highways on a~mlleage basis, I.e., the.averagemlj.estraveled per gallon of fueJ~consuPied;~'aaprovld$d'.lnArticle 10.08.,ofti& .1aw. . . . 8, . . . "This user;importerha8 a credit, over and above his tax accruals, for several thousand.gallonsof tax paid.special fuels used bff the.Texas highways (In other States) on which he failed to file claim for tax refund within six (6) months from the date of such use, and which cannot now be refunded because ~of the SIX months llmltatlon above cited. -179- Honorable Robert S. Calvert, Page 2 (NON.C-42) "Our first question Is therefore as follows: "When a user falls to exercise his right to file claim for refund of taxes paid, over and above his tax accruals, on special fuels used off the Texas hlgh- ways within six months from the date of such use, as prescribed by law, Is such user precluded by law from taking credit for such amount on subsequenttax accruals Incurred after the six months period for filing the refund claim has expired? 8, . . . "If the Comptrollerdetermines to his a&tlsfactlonthat any user or other person~has purchased special fuels or motor fuel on which he Is required & ..~ .:law.to a Efietaxtothe sealer or seller attE wm- Fhase, and he thereafter uses so=fThe ax-paid fuel off the public highways of Texas and falls to exercise his right to file for tax .refundwithin the time prescribed bye law because he did not know of the time limit In whlch.clalm must be filed, would such lgnortice of the law or mistaken 'Ideaas to such time limit for filing refund claim constitute or be deemed to be an overpayment of taxes through a mls- take of law or fact as conte lated In mT: the above cited Article l.ll? The question of whether or not a refund may be paid after the elapse of six months from the time of delivery or use of motor fuel Is discussed In Opinions Nos. O-6086 and O-6195 formerly rendered by this department, copies of which are enclosed herewith. In Opinion No. o-6086, the claimant purchased 2,000 gallons of gasoline on January 1, 1944, from a regular licensed dealer and obtained Invoices of exemption at the time of delivery. Within four months he had used 1,500 gallons of the gasoline for which he filed claims for and received refund of tax on the 1,500 gallons. On May 1, 1944, when claim was filed for refund of tax on the 1,500 gallons, It was shown that 500 gallons Included In the purchase had not been used. The question was as to when the claim was barred by llmltatlonon the refund of the tax on the remaining 500 gallons. -180- Honorable Robert S. Culvert, Page 3 (No. C-42) The opinion held as to this question as follows: "Thereforewe answer to the first question, since the claimant purchased the motor fuel from a licensed dealer and had delivery thereof on January 1, 1944, and since he was not a distributor appropriatingsuch fuel-r use, he Is required to use all of such fuel upon which he req=ts a tax refund and file his affldavlt and claim therefor prior to July 1, 1944." Opinion No. O-6195 holds that claim for refund of tax on gasoline exported or lost by fire must be made within six months from the time of delivery of the gasoline. These two opinions deal with motor fuel.tax under Chapter 9 of Tltle'122A, Taxation-General,V.C.S., and this opinion request pertains to special fuels tax as provided for by Chapter 10 of Title 122A, V.C.S.; however, both chapters provide that the claim for refund of taxes paid must be made within six months from time It Is invoiced for sale or use and for that reason we think these opinions cited are pertinent. 'Section(1) of Article 10.14 of Title 122A, V.C.S., readssas~follows: "(1) Except as otherwise provided by Article 10.15 of this Chapter, any ,llcensed dealer who shall have paid the tax imposed by this Chapter upon any liquefied gas or distillate fuel which has beenused or sold for use by suqh dealer for any purpose other than propelling a motor vehicle upon the public highways of this State;/or which has been sold to the United States Govern- ment for the exclusive use of said govern- ment, and any licensed user who shall have paid said tax upon any liquefied gas or distillate fuel which has been used by such user for any purpose other than pro- pelling a motor vehicle upon said public 'highways,may file claim for a refund of the tax or taxes so paid, less one per cent (1%) allowed suppliers for the expense of collecting and reporting such taxes to this State. Such claims shall be filed with the Comptroller on forms prescribed by the Comptrollerand -181- Honorable Robert S. Calvert, Page 4 (No. C-42) shall show the date of filing and the period covered In the claim, the gallons of liquefied gas and the gallons of dls- tlllate fuel sold or used for purposes subject to tax refund, and shall show such other facts and Informationas the Comptrollermay by rule and regulation require. Rvery such claim shall be sup- ported by an Invoice or Invoices Issued by the claimant, 88 hereinafterprovided, and shall be verified by affidavit of the claimant and filed In the office of the Comptrollerwithin six (6) months from the date the special fuels were Invoiced .orrequired to be Invoiced for sale or use, and no claim shall be made by the claimant or approved by the Comptroller when the sale of such special fuels or the appropriationfor use occurs more than six (6) months prior to the dates .~ ~,:.. the claim-la filed." . In accordance with these opinions we are now of the opinion that when the user mentioned In your request falls to exercise his right to file claim for refund of taxes paid, withlrisix.monthsfrom the date of such use, then he Is not entitled to a refund of those taxes; and this being true,~he Is precluded by law from taking credit for such amount on. subsequenttax accruals Incurred after the six-monthperiod for fl&lng the refund claim has expired. Your next question relates to tax.credltsauthorized by Article 1.11 of Title 122A which reads In part aspfollows: "(2) When the Comptrollerdeterminesthat any person, firm or corporationhas through mistake of law or fact overpaid the amount due the State on any tax collected or admlnl- stered by the Comptroller,the Comptroller may with the consent of the taxpayer credit the person, firm or corporationoverpaying the tax with the amount of such overpayment. "(e) Credits expire at the end bf five (5) years from date of Issuance by the Comp- troller." This section of the statute provides that when a per- son, firm or corporation has, through mistake of.law or fact, overpald the amotintdue the State, then he may be allowed -182- Honorable Robert S. C+lvert, Page 5 (No. C-42).. credit on taxes later becoming due to the State for the amount whlc.hhe has overpaid on prior tax accruals. In %he'facts glven.ln your request there has been no overpayment of taxes. The proper amount of taxes were paid and the user merely did not comply with the law as required to get a refund of taxes paid and this did not amount to an overpayment. This would not authorize the purchaser to take credit for the taxes paid which might have been refunded had the pur- chaser filed his claim In proper time, for taxes accruing on fuel bought after the six-monthperiod had expired. There was not an overpayment of taxes as Intended by Section 2 of Article 1.11 above mentioned but only taxes paid on fuel purchased; and,when the purchaser failed to file his claim for refund within the time prescribed by law, then any claim for those taxes ceased to exist and the taxes accruing on fuels purchased after the six-month period had explred Is a separate and distinct transaction and no claim fqr credit may be allowed on these taxes because of the failure of the purchaser to file his claim timely In the prior transaction. SUMMARY A user of special fuels as defined In Chapter 10 of Title 122A, Taxation-General, V.C.S., who falls to file claim for tax refund within six-monthperiod from date of use Is not entitled to take credit for such amount on sub- sequent tax accruals Incurred after the slx- month period for flllnga refund claim has expired. The failure of a purchasir of spe- cial fuels or motor fuel to file a claim for refund of taxes paid because he did noteknow of the time limit, Is not a mistake of law or fact such as to constitute an overpay- ment of taxes as provided In Article 1.11 of Title 122A, V.C.S. Yours very truly, WAGGONER CARR Attorney General of Texas -183- Honorable Robert S. Calvert, Page 6 (No. C-42) JHR:pw ' Enclosures APPROVED: OPINION COMMI'M'RE W. V. Geppert, Chairman 0. L. Snow Cecii Rotach Murray Jordan ,,-Tobert Lewis APPR~DK'~TRRATTORNEYfX3NERAL By:~ Stanton Stone -184-