Untitled Texas Attorney General Opinion

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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 a<y mo or ue which has been used to propel a motor vehicle, tractor or other convevance uuon the public hishwav of ‘Texas for anv ourn&ePfor which a tax refund ii not au- thoriaed her&. 0; who shall file any duplicate invoice or exemption in a claim for tax refund on which any date, figure or other material information has been falslfled or altered 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 claun filed. (ISmphasis added.)

Under the’submitted facts the ten invoices of exemption which were altered involved sales or deliveries of motor fuel which were more. than six months prior to the receipt of the refund claim by the Comptroller.

_ . . Hon. Robert S. Calvert, page 4 (V;lrSn

There 16 no question but that the refund claims represented by the kn altered or falrifkd invoice6 of exemption are barred from payment by the six months’ limiktion provided by sktuk. The only question to be determined here is the legality of paying the portions of the two total refund claims which were properly filed within the slz months’ period and which were subskntiakd’by analtered lxx- voices of exemption.

The tax refunds authorized by the Motor Fuel Tax law are in the nature of exemptions or exceptions and must be strictly con- strued. The right of the claimant to mahe application for a refund is statutory and the procedure set out in the statute must be strictly complied with to entitle the claimant to that right. Att’y Gen. Op. O-6363 (1945)i Armstrong v. Driscoll Construction Co., 110 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