A-20554, NOVEMBER 28, 1927, 7 COMP. GEN. 360

A-20554: Nov 28, 1927

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1927: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF NOVEMBER 8. IS PAYABLE BY THE FEDERAL GOVERNMENT ON GASOLINE PURCHASED FOR THE USE OF GOVERNMENT-OWNED VEHICLES OPERATED OVER ROADS IN THE MESA VERDE NATIONAL PARK. IT IS STATED IN THE SUBMISSION THAT 90 PERCENT OF ALL THE GASOLINE PURCHASED AND USED BY THE PARK IS USED ENTIRELY WITHIN THE PARK BOUNDARIES. 10 PERCENT OR LESS IS USED ON THE SHORT CONNECTING HIGHWAY FROM THE PARK ENTRANCE TO MANCOS. THE LIABILITY OF THE FEDERAL GOVERNMENT FOR THE PAYMENT OF A STATE TAX IN COLORADO WAS CONSIDERED IN MY DECISION TO YOU OF AUGUST 26. WHEREIN IT WAS DETERMINED THAT THE TAX WAS IMPOSED UPON THE DEALER AND NOT THE PURCHASER. THE PAYMENT IN CONNECTION WITH PURCHASES OR CONTRACTS THEREAFTER MADE WOULD BE GOVERNED BY THE PRIOR REPORTED DECISIONS OF THIS OFFICE WHICH HOLD GENERALLY THAT WHILE THE FEDERAL GOVERNMENT IS NOT LIABLE FOR STATE TAXES AS SUCH.

A-20554, NOVEMBER 28, 1927, 7 COMP. GEN. 360

TAXES - STATE - GASOLINE THE GASOLINE TAX IN COLORADO BEING IMPOSED ON THE DEALER, THE FEDERAL GOVERNMENT CAN NOT REFUSE TO PAY THE FULL QUOTED OR CONTRACT PRICE FOR GASOLINE PURCHASED IN THAT STATE. WHILE APPLICATION SHOULD BE MADE FOR REFUND OF AN AMOUNT EQUAL TO THE TAX ON ALL GASOLINE PURCHASED AND USED FOR PURPOSES OTHER THAN PROPELLING MOTOR VEHICLES UPON THE PUBLIC STREETS AND HIGHWAYS OF THE STATE, AND USE UPON THE ROADS IN THE MESA VERDE NATIONAL PARK WOULD APPEAR TO BE WITHIN THIS EXCEPTION, THE RIGHT TO RECOVER THE AMOUNT OF THE TAX HAS NO BEARING ON THE DEALER'S RIGHT TO COLLECT FROM THE GOVERNMENT THE AMOUNT OF THE CONTRACT PRICE FOR GASOLINE PURCHASED AND DELIVERED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, NOVEMBER 28, 1927:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF NOVEMBER 8, 1927, REQUESTING A DECISION UPON THE QUESTION WHETHER THE COLORADO STATE TAX ON GASOLINE IMPOSED BY THE STATE STATUTE OF APRIL 20, 1927, IS PAYABLE BY THE FEDERAL GOVERNMENT ON GASOLINE PURCHASED FOR THE USE OF GOVERNMENT-OWNED VEHICLES OPERATED OVER ROADS IN THE MESA VERDE NATIONAL PARK. IT IS STATED IN THE SUBMISSION THAT 90 PERCENT OF ALL THE GASOLINE PURCHASED AND USED BY THE PARK IS USED ENTIRELY WITHIN THE PARK BOUNDARIES, AND 10 PERCENT OR LESS IS USED ON THE SHORT CONNECTING HIGHWAY FROM THE PARK ENTRANCE TO MANCOS, A DISTANCE OF 6.4 MILES.

THE LIABILITY OF THE FEDERAL GOVERNMENT FOR THE PAYMENT OF A STATE TAX IN COLORADO WAS CONSIDERED IN MY DECISION TO YOU OF AUGUST 26, 1927, A-19528, WHEREIN IT WAS DETERMINED THAT THE TAX WAS IMPOSED UPON THE DEALER AND NOT THE PURCHASER, AND THAT WHILE THE STATE TAX COULD NOT BE ADDED TO THE PRICE ALREADY FIXED BY CONTRACT OR AGREEMENT BETWEEN THE FEDERAL GOVERNMENT AND THE DEALER, THE PAYMENT IN CONNECTION WITH PURCHASES OR CONTRACTS THEREAFTER MADE WOULD BE GOVERNED BY THE PRIOR REPORTED DECISIONS OF THIS OFFICE WHICH HOLD GENERALLY THAT WHILE THE FEDERAL GOVERNMENT IS NOT LIABLE FOR STATE TAXES AS SUCH, THE FACT THAT THE AMOUNT OF A STATE TAX WAS TAKEN INTO CONSIDERATION BY THE DEALER IN ARRIVING AT THE PRICE STIPULATED IN ITS BID DOES NOT PREVENT OR RELIEVE THE GOVERNMENT FROM PAYING THE FULL CONTRACT PRICE AGREED UPON. 1 COMP. GEN. 229, 584; 2 ID. 81; 3 ID. 348; 4 ID. 1041; 5 ID. 1022.

THE STATE STATUTE HERE INVOLVED PROVIDES FOR A PAYMENT BY THE STATE TO THE PURCHASER, IF APPLICATION THEREFOR IS FILED WITHIN 60 DAYS AFTER THE PURCHASE, OF AN AMOUNT EQUAL TO THE STATE TAX UPON ANY GASOLINE USED FOR A PURPOSE OTHER THAN PROPELLING MOTOR VEHICLES "ON PUBLIC STREETS OR HIGHWAYS.' UNDER THIS PROVISION OF THE STATE LAW, APPLICATION SHOULD BE MADE TO THE STATE FOR THE AMOUNT OF THE TAX ON ALL GASOLINE PURCHASED BY THE PARK AND USED FOR PURPOSES OTHER THAN PROPELLING MOTOR VEHICLES UPON THE PUBLIC STREETS OR HIGHWAYS OF THE STATE AND USE UPON THE ROADS IN THE PARK WOULD APPEAR TO BE WITHIN THIS EXCEPTION. BUT WHETHER THE GOVERNMENT CAN OR CAN NOT RECOVER THE AMOUNT FROM THE STATE WOULD HAVE NO BEARING UPON THE DEALER'S RIGHT TO COLLECT FROM THE GOVERNMENT THE AMOUNT OF THE CONTRACT PRICE FOR THE GASOLINE PURCHASED AND DELIVERED. SEE 5 COMP. GEN. 1022; DECISION OF NOVEMBER 23, 1927, A-20190, 7 COMP. GEN. 349.