A-32996, AUGUST 28, 1930, 10 COMP. GEN. 100

A-32996: Aug 28, 1930

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TAXES - STATE - GASOLINE RESOLD TO GOVERNMENT EMPLOYEES THERE IS NO AUTHORITY FOR THE PAYMENT OF A STATE TAX ON GASOLINE SOLD TO THE UNITED STATES. THAT THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED TO PURCHASE PERSONAL EQUIPMENT AND SUPPLIES FOR EMPLOYEES OF THE NATIONAL PARK SERVICE. GASOLINE IS BOUGHT IN BULK FROM THE DEALERS AND THE STATE TAX IS DEDUCTED FROM PAYMENT FOR THE GASOLINE. IT IS FELT THAT THE EMPLOYEES OF THE PARK SERVICE IN PURCHASING GASOLINE FOR PERSONAL USE SHOULD PAY THE STATE TAX. YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER IT WOULD BE PERMISSIBLE IN THE SALE OF GASOLINE TO EMPLOYEES FOR THE DISBURSING AGENT TO INCLUDE THE STATE TAX IN THE PRICE AT WHICH THE GASOLINE IS SOLD TO EMPLOYEES.

A-32996, AUGUST 28, 1930, 10 COMP. GEN. 100

TAXES - STATE - GASOLINE RESOLD TO GOVERNMENT EMPLOYEES THERE IS NO AUTHORITY FOR THE PAYMENT OF A STATE TAX ON GASOLINE SOLD TO THE UNITED STATES, WHETHER THE GASOLINE BE USED FOR OFFICIAL GOVERNMENT BUSINESS OR FOR LEGALLY AUTHORIZED RESALE TO GOVERNMENT EMPLOYEES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, AUGUST 28, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 11, 1930, AS FOLLOWS:

"AN ACT TO FACILITATE THE ADMINISTRATION OF THE NATIONAL PARKS BY THE U.S. DEPARTMENT OF THE INTERIOR AND FOR OTHER PURPOSES," APPROVED MAY 26, 1930, CARRIES A PROVISION IN SECTION 1:

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED TO PURCHASE PERSONAL EQUIPMENT AND SUPPLIES FOR EMPLOYEES OF THE NATIONAL PARK SERVICE, AND TO MAKE DEDUCTIONS THEREFOR FROM MONEYS APPROPRIATED FOR SALARY PAYMENTS OR OTHERWISE DUE SUCH EMPLOYEES.'

IN CONNECTION WITH THE ABOVE AUTHORITY THE QUESTION HAS ARISEN AS TO THE PROPER PROCEDURE FOR HANDLING THE STATE TAX ON GASOLINE SOLD TO EMPLOYEES OF THE PARK SERVICE FOR PERSONAL USE.

GASOLINE IS BOUGHT IN BULK FROM THE DEALERS AND THE STATE TAX IS DEDUCTED FROM PAYMENT FOR THE GASOLINE, BUT IT IS FELT THAT THE EMPLOYEES OF THE PARK SERVICE IN PURCHASING GASOLINE FOR PERSONAL USE SHOULD PAY THE STATE TAX. YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER IT WOULD BE PERMISSIBLE IN THE SALE OF GASOLINE TO EMPLOYEES FOR THE DISBURSING AGENT TO INCLUDE THE STATE TAX IN THE PRICE AT WHICH THE GASOLINE IS SOLD TO EMPLOYEES, PLACING SUCH AMOUNT COLLECTED AS STATE TAX IN THE SPECIAL DEPOSIT ACCOUNT OF THE SPECIAL DISBURSING AGENT UNTIL THE CLOSE OF THE MONTH AT WHICH TIME A CHECK COULD BE DRAWN AGAINST THE SPECIAL DEPOSIT ACCOUNT AND SUBMITTED TO THE DEALER.

BY DECISION OF MARCH 14, 1929, A-23669, THIS OFFICE SUSTAINED THE DISALLOWANCE OF A CLAIM OF THE STANDARD OIL CO. FOR THE AMOUNT OF STATE TAX ON GASOLINE SOLD TO THE FEDERAL GOVERNMENT AND CLAIMED TO HAVE BEEN RESOLD IN A NAVAL COMMISSARY TO OFFICERS, ENLISTED MEN, AND NAVAL PERSONNEL, FOR USE IN THEIR PRIVATELY OWNED AUTOMOBILES. SEE ALSO DECISION OF UNITED STATES SUPREME COURT IN THE CASE OF THE PANHANDLE OIL CO. V. MISSISSIPPI, 277 U.S. 218, IN WHICH IT WAS HELD THAT "THE STATES MAY NOT BURDEN OR INTERFERE WITH THE EXERTION OF NATIONAL POWER NOR MAKE IT A SOURCE OF REVENUE OR TAKE THE FUNDS RAISED OR TAX THE MEANS USED FOR THE PERFORMANCE OF FEDERAL FUNCTIONS.'

UNDER THE CIRCUMSTANCES IT MUST BE HELD THAT THERE IS NO AUTHORITY FOR THE PAYMENT TO A STATE OF THE TAX IMPOSED BY IT UPON GASOLINE SOLD TO THE UNITED STATES WHETHER THE GASOLINE BE USED FOR OFFICIAL GOVERNMENT BUSINESS OR FOR LEGALLY AUTHORIZED RESALE TO GOVERNMENT EMPLOYEES.