A-9869, JUNE 12, 1925, 4 COMP. GEN. 1041

A-9869: Jun 12, 1925

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STATE TAX ON THE SALE OF GASOLINE THE TAX IMPOSED ON THE SALE OF GASOLINE BY THE STATE OF KANSAS IS A TAX PAYABLE BY THE DEALER AND THE UNITED STATES MAY NOT OBJECT TO THE AGREED PRICE PER GALLON ON GASOLINE PURCHASED WITHIN THE STATE EVEN THOUGH SUCH PRICE INCLUDES THE STATE TAX. THE UNITED STATES IS NOT. WHEN GASOLINE PURCHASED IN KANSAS IS USED IN STATIONARY GAS ENGINES. SUCH REFUNDS AS RECEIVED MAY BE CREDITED TO THE APPROPRIATION FROM WHICH THE PURCHASE PRICE WAS PAID. PHRASES IN THIS ACT ARE. IS HEREBY IMPOSED ON THE SALE OR USE OF ALL MOTOR-VEHICLE FUEL USED IN THIS STATE FOR ANY PURPOSE WHATSOEVER. THAT SAID TAX SHALL BE PAID BY THE DEALER TO THE STATE OIL INSPECTOR AT THE SAME TIME THAT THE STATEMENT PROVIDED FOR IN SECTION 4 HEREOF IS RENDERED TO THE OIL INSPECTOR.

A-9869, JUNE 12, 1925, 4 COMP. GEN. 1041

STATE TAX ON THE SALE OF GASOLINE THE TAX IMPOSED ON THE SALE OF GASOLINE BY THE STATE OF KANSAS IS A TAX PAYABLE BY THE DEALER AND THE UNITED STATES MAY NOT OBJECT TO THE AGREED PRICE PER GALLON ON GASOLINE PURCHASED WITHIN THE STATE EVEN THOUGH SUCH PRICE INCLUDES THE STATE TAX. THE UNITED STATES IS NOT, HOWEVER, LIABLE FOR THE STATE TAX AS A DEALER OR AS A PURCHASER IN ORIGINAL CONTAINERS. WHEN GASOLINE PURCHASED IN KANSAS IS USED IN STATIONARY GAS ENGINES, OR IN TRACTORS USED EXCLUSIVELY FOR AGRICULTURAL PURPOSES, REFUNDS OF AMOUNTS EQUAL TO THE STATE TAX PAID AS PART OF THE PURCHASE PRICE SHOULD BE APPLIED FOR BY PURCHASING AGENTS OF THE UNITED STATES WITHIN THE TIME LIMIT ALLOWED BY THE STATE LAW, AND SUCH REFUNDS AS RECEIVED MAY BE CREDITED TO THE APPROPRIATION FROM WHICH THE PURCHASE PRICE WAS PAID.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JUNE 12, 1925:

THERE HAS BEEN RECEIVED YOUR REQUEST OF MAY 27, 1925, FOR DECISION OF THE QUESTION PRESENTED BY THE COMMISSIONER OF INDIAN AFFAIRS WITH RESPECT TO THE PAYMENT OF THE STATE TAX OF 2 CENTS PER GALLON ON GASOLINE PURCHASED IN THE STATE OF KANSAS. THE KANSAS STATUTE WHICH BECAME EFFECTIVE MAY 1, 1925, PROVIDES IN PART:

SEC. 1. THAT THE WORDS, TERMS, AND PHRASES IN THIS ACT ARE, FOR ALL THE PURPOSES THEREOF, DEFINED AS FOLLOWS: * * * (C) "DEALERS" MEANS AND INCLUDES ANY PERSON OR PERSONS, FIRM, ASSOCIATION, OR CORPORATION WHO RECEIVES FROM ANY SOURCE MOTOR-VEHICLE FUEL IN TANK CARS OR OTHER ORIGINAL CONTAINERS AND WHO UNLOADS OR BREAKS SUCH ORIGINAL CONTAINERS FOR THE PURPOSE OF STORING, SELLING, DELIVERING, OR USING ALL OR ANY PART OF MOTOR -VEHICLE FUEL THUS RECEIVED, BUT DOES NOT INCLUDE SUCH MOTOR-VEHICLE FUEL AS MAY BE RECEIVED BY REFINERIES OR PLANTS FOR THE PURPOSE OF BLENDING OR COMPOUNDING.

SEC. 2. THAT A TAX OF 2 CENTS PER GALLON, OR FRACTION THEREOF, IS HEREBY IMPOSED ON THE SALE OR USE OF ALL MOTOR-VEHICLE FUEL USED IN THIS STATE FOR ANY PURPOSE WHATSOEVER, PROVIDED SAID TAX SHALL BE PAID BUT ONCE. SAID TAX SHALL BE COMPUTED UPON ALL MOTOR-VEHICLE FUEL RECEIVED BY EACH DEALER IN THIS STATE AND PAID IN A MANNER HEREINAFTER PROVIDED * * *.

SEC. 3. THAT EVERY DEALER PAYING SUCH TAX OR BEING LIABLE FOR THE PAYMENT THEREOF SHALL BE ENTITLED TO CHARGE AND COLLECT THE SUM OF 2 CENTS PER GALLON ON SUCH MOTOR-VEHICLE FUEL SOLD BY HIM OR THEM, FOR ANY PURPOSE WHATSOEVER, AS A PART OF THE SELLING PRICE THEREOF, AND EVERY SUCH DEALER SHALL POST IN A CONSPICUOUS PLACE AT HIS PLACE OF BUSINESS A PLACARD, NOT LESS THAN 12 INCHES IN LENGTH AND 7 INCHES IN HEIGHT, UPON WHICH SHALL BE SHOWN IN LETTERS AND FIGURES NOT LESS THAN 2 1/2 INCHES IN HEIGHT, THE SELLING PRICE OF GASOLINE PER GALLON AND THE AMOUNT OF THE TAX CHARGED THEREON.

SEC. 5. THAT SAID TAX SHALL BE PAID BY THE DEALER TO THE STATE OIL INSPECTOR AT THE SAME TIME THAT THE STATEMENT PROVIDED FOR IN SECTION 4 HEREOF IS RENDERED TO THE OIL INSPECTOR.

SEC. 8. THAT WHENEVER ANY SALE IS MADE BY A DEALER OF MOTOR-VEHICLE FUEL IN THE ORIGINAL PACKAGES IN WHICH THE SAME WAS IMPORTED, SUCH DEALER SHALL DELIVER TO THE PURCHASER THEREOF AN INVOICE OF SUCH MOTOR VEHICLE FUEL, STATING THE NAME AND ADDRESS OF THE PURCHASER, THE QUANTITY AND KIND OF FUEL SOLD, AND WHETHER OR NOT SAID DEALER ASSUMES AND AGREES TO PAY THE LICENSE TAX ON SAID FUEL ABOVE SPECIFIED, AND SUCH DEALER SHALL TRANSMIT TO THE STATE OIL INSPECTOR, AT THE SAME TIME HE SHALL RENDER THE STATEMENT ABOVE SPECIFIED, DUPLICATE COPIES OF ALL SUCH INVOICES ISSUED AND DELIVERED BY HIM DURING THE PERIOD COVERED BY SUCH STATEMENT.

SEC. 9. THAT IT SHALL BE UNLAWFUL FOR ANY PERSON OR PERSONS, FIRM, OR CORPORATION TO PURCHASE, RECEIVE, OR ACCEPT ANY MOTOR-VEHICLE FUEL FROM ANY DEALER IN THE ORIGINAL PACKAGE, AS THE SAME WAS IMPORTED INTO THE STATE, AS PROVIDED HEREIN, OR TO PAY FOR THE SAME, OR SELL OR OFFER THE SAME FOR SALE, UNLESS AND UNTIL THE INVOICE PROVIDED FOR HEREIN SHALL HAVE BEEN BY SAID DEALER DELIVERED TO HIM AT THE TIME OF THE PURCHASE OR RECEIPT OF THE SAME MOTOR-VEHICLE FUEL. ANY PERSON, FIRM, OR CORPORATION WHO SHALL PURCHASE OR RECEIVE ANY MOTOR-VEHICLE FUEL FROM ANY DEALER IN THIS STATE IN THE ORIGINAL PACKAGE IN WHICH THE SAME SHALL HAVE BEEN IMPORTED, AND UPON WHICH FUEL THE SAID DEALER SHALL NOT HAVE ASSUMED TO PAY THE TAX, AS PROVIDED IN THIS ACT, SHALL, ON THE 25TH DAY OF EACH MONTH RENDER TO THE STATE OIL INSPECTOR THE SAME STATEMENT REQUIRED OF THE DEALER HEREINBEFORE SPECIFIED, AND AT THE SAME TIME SHALL REMIT AND PAY TO THE SAID STATE OIL INSPECTOR A TAX OF 2 CENTS PER GALLON ON SUCH MOTOR- VEHICLE FUEL UPON WHICH THE DEALER HAS NOT ASSUMED THE TAX.

SEC. 11. THAT ANY PERSON OR PERSONS, FIRM OR CORPORATION WHO SHALL BUY OR USE ANY MOTOR-VEHICLE FUEL, AS DEFINED IN THIS ACT, FOR THE PURPOSE OF OPERATING OR PROPELLING STATIONARY GAS ENGINES, OR TRACTORS USED EXCLUSIVELY FOR AGRICULTURAL PURPOSES, ON WHICH THE MOTOR-FUEL TAX IMPOSED BY THIS ACT HAS BEEN PAID, SHALL BE REIMBURSED AND REPAID THE AMOUNT OF SUCH TAX PAID BY HIM UPON PRESENTING TO THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY WHERE THE SAID TAX WAS PAID ON A FORM PRESCRIBED BY THE STATE OIL INSPECTOR, A SWORN STATEMENT SETTING FORTH THE TOTAL AMOUNT OF SUCH FUEL PURCHASED AND PAID FOR AND USED BY SUCH CONSUMER FOR STATIONARY GAS ENGINES OR TRACTORS FOR AGRICULTURAL PURPOSES, AND THE PURPOSES FOR WHICH SAID MOTOR-VEHICLE FUEL UPON WHICH HE CLAIMS EXEMPTION FROM SAID TAX WAS USED. UPON THE PRESENTATION OF SUCH SWORN STATEMENT, IF SAID BOARD SHALL BE SATISFIED THAT SUCH REFUND IS DUE, IT SHALL CAUSE TO BE REPAID TO SUCH CONSUMER FROM THE TAXES COLLECTED ON MOTOR-VEHICLE FUELS THE SAID TAXES ON FUELS, PURCHASED OR USED OTHER THAN FOR MOTOR VEHICLES AS AFORESAID: PROVIDED, THAT SUCH APPLICATION FOR A REFUND OF SUCH TAXES SHALL BE MADE ON OR ABOUT THE BEGINNING OF EACH QUARTER OF EACH CALENDAR YEAR: PROVIDED, THAT ALL CLAIMS FOR REFUND PROVIDED FOR HEREIN NOT FILED IN 60 DAYS FROM LAST DAY OF THE QUARTER IN WHICH THE PURCHASE IS MADE SHALL BE FOREVER BARRED.

THE KANSAS STATUTE IMPOSES THE TAX ON THE DEALER AND IT IS IMMATERIAL THAT IT AUTHORIZES HIM TO INCLUDE THE TAX IN THE SELLING PRICE, AS IT WOULD NATURALLY BE REFLECTED IN THE SELLING PRICE WITHOUT SUCH AUTHORITY. PAYMENT OF THE AGREED PRICE PER GALLON ON ALL MOTOR VEHICLE FUEL PURCHASED WITHIN THE STATE IS THEREFORE AUTHORIZED IRRESPECTIVE OF WHETHER THAT PRICE INCLUDES THE STATE TAX. 1 COMP. GEN. 584; 3 ID. 348, 781.

THE TERM "DEALER" AS DEFINED IN THE STATUTE AND THE PROVISIONS OF SECTIONS 8 AND 9 OF THE STATUTE ARE BROAD ENOUGH TO COVER THE GOVERNMENT IN CASES WHERE THE GOVERNMENT PURCHASES MOTOR-VEHICLE FUEL IN TANK CARS OR ORIGINAL CONTAINERS. IT IS NOT, HOWEVER, WITHIN THE POWER OF THE STATE TO TAX THE FEDERAL GOVERNMENT EITHER AS A DEALER OR AS A PURCHASER IN ORIGINAL CONTAINERS. THE PAYMENT OF A TAX BY THE GOVERNMENT DIRECT TO THE STATE IS THEREFORE NOT AUTHORIZED.

ATTENTION IS ALSO DIRECTED TO THE PROVISIONS OF SECTION 11 OF THE STATUTE PROVIDING FOR THE REFUND OF AN AMOUNT EQUAL TO THE TAX PAID AS PART OF THE PURCHASE PRICE WHEN THE MOTOR-VEHICLE FUEL IS USED IN STATIONARY GAS ENGINES OR IN TRACTORS USED EXCLUSIVELY FOR AGRICULTURAL PURPOSES. THIS PROVISION SHOULD BE BROUGHT TO THE ATTENTION OF THE PURCHASING AGENTS WITHIN THE STATE OF KANSAS, AND THEY SHOULD BE INSTRUCTED TO MAKE APPLICATION FOR SUCH REFUNDS WITHIN THE TIME ALLOWED BY THE STATUTE. ANY REFUND SO SECURED, BEING IN THE NATURE OF A REBATE OR REDUCTION IN THE PRICE PAID, MAY BE CREDITED TO THE APPROPRIATION FROM WHICH THE PURCHASE PRICE WAS PAID.