B-150285, APRIL 24, 1963, 42 COMP. GEN. 593

B-150285: Apr 24, 1963

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TAXES - STATE - GASOLINE - CALIFORNIA - FEDERAL ROADS THE STATE OF CALIFORNIA HAVING AGREED THAT THE UNITED STATES IS ENTITLED TO REFUND UNDER SECTION 8101 (A) OF THE REVENUE AND TAXATION CODE OF CALIFORNIA OF THE MOTOR FUEL TAX THAT IS ASSESSABLE ON GASOLINE USED IN MOTOR VEHICLES OPERATED UPON PUBLIC HIGHWAYS AND WHICH WAS PAID ON FUEL USED IN GOVERNMENT VEHICLES OPERATED EXCLUSIVELY WITHIN THE CONFINES OF THE JOSHUA TREE NATIONAL MONUMENT. A FEDERAL ENCLAVE WHERE THE ROADS CONSTRUCTED AND MAINTAINED WITH FEDERAL FUNDS ARE NOT PUBLIC HIGHWAYS WITHIN THE MEANING OF SECTION 8101 (A). WE ADDRESSED THE FOLLOWING SELF-EXPLANATORY LETTER TO THE CONTROLLER OF THE STATE OF CALIFORNIA: A NUMBER OF CLAIMS BY THE UNITED STATES AGAINST THE STATE OF CALIFORNIA FOR REFUND OF MOTOR VEHICLE FUEL TAXES HAVE BEEN DENIED BY YOUR OFFICE.

B-150285, APRIL 24, 1963, 42 COMP. GEN. 593

TAXES - STATE - GASOLINE - CALIFORNIA - FEDERAL ROADS THE STATE OF CALIFORNIA HAVING AGREED THAT THE UNITED STATES IS ENTITLED TO REFUND UNDER SECTION 8101 (A) OF THE REVENUE AND TAXATION CODE OF CALIFORNIA OF THE MOTOR FUEL TAX THAT IS ASSESSABLE ON GASOLINE USED IN MOTOR VEHICLES OPERATED UPON PUBLIC HIGHWAYS AND WHICH WAS PAID ON FUEL USED IN GOVERNMENT VEHICLES OPERATED EXCLUSIVELY WITHIN THE CONFINES OF THE JOSHUA TREE NATIONAL MONUMENT, A FEDERAL ENCLAVE WHERE THE ROADS CONSTRUCTED AND MAINTAINED WITH FEDERAL FUNDS ARE NOT PUBLIC HIGHWAYS WITHIN THE MEANING OF SECTION 8101 (A), ALL GOVERNMENT AGENCIES OPERATING IN THE STATE OF CALIFORNIA SHOULD TAKE APPROPRIATE ACTION WITH RESPECT TO MOTOR VEHICLE FUEL TAX REFUNDS IN THAT STATE.

TO THE SECRETARY OF THE INTERIOR, APRIL 24, 1963:

ON JANUARY 25, 1963, WE ADDRESSED THE FOLLOWING SELF-EXPLANATORY LETTER TO THE CONTROLLER OF THE STATE OF CALIFORNIA:

A NUMBER OF CLAIMS BY THE UNITED STATES AGAINST THE STATE OF CALIFORNIA FOR REFUND OF MOTOR VEHICLE FUEL TAXES HAVE BEEN DENIED BY YOUR OFFICE. THESE CLAIMS COVER GASOLINE TAXES PAID WITH RESPECT TO FUEL USED TO PROPEL GOVERNMENT VEHICLES EXCLUSIVELY WITHIN THE CONFINES OF THE JOSHUA TREE NATIONAL MONUMENT. SEE YOUR LETTERS TO US OF NOVEMBER 22, 1961, AND OF FEBRUARY 15 AND OCTOBER 31, 1962. BUT NOTWITHSTANDING YOUR DENIAL OF THE CLAIMS, THE UNITED STATES IS RECOVERING THE AMOUNTS THEREOF THROUGH SET- OFF ACTIONS AGAINST FUNDS IT OTHERWISE OWES CALIFORNIA. RATHER THAN TO CONTINUE COLLECTION OF THESE AMOUNTS BY WAY OF SET OFF, WE WOULD PREFER, OF COURSE, TO HAVE THE STATE OF CALIFORNIA AGREE THAT THE UNITED STATES IS ENTITLED TO THE REFUNDS BEING CLAIMED. THE PURPOSE OF THIS LETTER IS, THEREFORE, TO SET FORTH THE BASIS FOR OUR POSITION AND TO INVITE AN EXPRESSION OF YOUR VIEWS.

THE REFUNDS INVOLVED ARE BEING CLAIMED UNDER THE PROVISIONS OF SUBSECTION 8101 (A) OF THE REVENUE AND TAXATION CODE OF CALIFORNIA, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"TAX REFUNDS: PERSONS ENTITLED. THE FOLLOWING PERSONS WHO HAVE PAID A LICENSE TAX FOR MOTOR VEHICLE FUEL, EITHER DIRECTLY OR TO THE VENDOR FROM WHOM IT WAS PURCHASED, OR INDIRECTLY BY THE ADDING OF THE AMOUNT OF THE TAX TO THE PRICE OF THE FUEL, SHALL BE REIMBURSED AND REPAID THE AMOUNT OF THE TAX:

"/A) ANY PERSON WHO BUYS AND USES THE MOTOR VEHICLE FUEL FOR PURPOSES OTHER THAN IN MOTOR VEHICLES OPERATED OR LICENSED TO BE OPERATED UPON THE PUBLIC HIGHWAYS OF THE STATE * * *.'

THE JOSHUA TREE NATIONAL MONUMENT IS A FEDERAL ENCLAVE WHOSE ROADS ARE CONSTRUCTED AND MAINTAINED WITH FEDERAL FUNDS. NO FUNDS OF THE STATE OF CALIFORNIA NOR OF ANY POLITICAL SUBDIVISION OF THE STATE ARE USED IN CONNECTION WITH THESE ROADS. SINCE THE GASOLINE FOR THE TAX ON WHICH REFUNDS ARE BEING CLAIMED IS BEING USED BY THE UNITED STATES IN MOTOR VEHICLES OPERATED EXCLUSIVELY WITHIN THE MONUMENT, THE ONLY QUESTION INVOLVED IS WHETHER THE MONUMENT ROADS ARE PUBLIC HIGHWAYS WITHIN THE MEANING OF SUBSECTION 8101 (A). IF THEY ARE NOT, IT IS MANIFEST THAT THE CLAIMS FOR REFUND ARE JUSTIFIED.

THE PROPER INTERPRETATION OF THE TERM "PUBLIC HIGHWAYS" AS USED IN THE STATUTE IS ESSENTIALLY A MATTER INVOLVING THE INTENTION OF THE CALIFORNIA LEGISLATURE. YOU CONTENT THAT THE NATIONAL MONUMENT ROADS CLEARLY FALL WITHIN THE TERM "HIGHWAY" AS DEFINED FOR THE PURPOSE OF SUBSECTION 8101 (A) AND OTHER MOTOR VEHICLE FUEL TAX LAWS BY THE LEGISLATURE IN SECTION 7311 OF THE REVENUE AND TAXATION CODE OF CALIFORNIA:

" "HIGHWAY.' "HIGHWAY" INCLUDES A WAY OR PLACE, OF WHATEVER NATURE, PUBLICLY MAINTAINED AND OPEN TO THE USE OF THE PUBLIC FOR PURPOSES OF VEHICULAR TRAVEL.'

WE CANNOT AGREE THAT THE ROADS IN JOSHUA TREE NATIONAL MONUMENT ARE "HIGHWAYS" UNDER THIS DEFINITION. WHILE WE WOULD CONCEDE THAT A LITERAL CONSTRUCTION OF THE STATUTORY LANGUAGE MIGHT LEAD TO THE CONCLUSION THAT NATIONAL MONUMENT ROADS FIT THE DEFINITION, WE BELIEVE THAT THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, DIVISION 1, CALIFORNIA, HAS ESTABLISHED THAT THE LEGISLATIVE INTENT WAS TO EXCLUDE SUCH ROADS FROM CONSIDERATION AS PUBLIC HIGHWAYS. IN THE CASE OF YOSEMITE PARK AND CURRY CO. V. DEPARTMENT OF MOTOR VEHICLES, 2 CAL.RPTR. 431 (1960), THE COURT CONCLUDED THAT THE CALIFORNIA STATUTES DO NOT REQUIRE REGISTRATION OF AND DO NOT IMPOSE REGISTRATION FEES AND MOTOR VEHICLE LICENSE FEES ON VEHICLES OWNED BY A CONCESSIONAIRE IN YOSEMITE NATIONAL PARK AND OPERATED EXCLUSIVELY ON THE FEDERAL GOVERNMENT ROADS IN SUCH PARK. IN REACHING THIS CONCLUSION THE COURT HELD THAT THE TERM "HIGHWAY" AS USED IN THE CODES, AND PARTICULARLY THE VEHICLES CODE, REFERS TO THOSE WAYS AND PLACES CONSTRUCTED, MAINTAINED, CONTROLLED, LOCATED AND POLICED BY OR UNDER THE AUTHORITY OF THE STATE OR ITS POLITICAL SUBDIVISIONS AND AGENCIES, AND NOT TO FEDERAL ROADS IN A NATIONAL PARK, WHICH ARE CONSTRUCTED, MAINTAINED, CONTROLLED, LOCATED, AND POLICED SOLELY BY THE FEDERAL GOVERNMENT. WE DO NOT FIND ANY REASONABLE BASIS FOR DISTINGUISHING THE YOSEMITE PARK CASE, WHICH CONCERNED REQUIREMENTS FOR VEHICLE REGISTRATION AND LICENSING FEES, FROM THE SITUATION HERE INVOLVING REFUND OF MOTOR VEHICLE FUEL TAXES PAID. BOTH SITUATIONS ARE WITHIN THE SAME OVERALL STATUTORY SCHEME AND THERE IS NO DISTINCTION BETWEEN YOSEMITE NATIONAL PARK AND JOSHUA TREE NATIONAL MONUMENT SO FAR AS CONCERNS FEDERAL JURISDICTION OVER THE ROADS WITHIN THEIR CONFINES.

MOREOVER, UNDER THE PROVISIONS OF SUBSECTION 8101 (A) A PERSON IS ENTITLED TO A REFUND OF MOTOR VEHICLE FUEL TAX PAID IF THE GASOLINE IS NOT BOUGHT FOR USE IN A VEHICLE OPERATED OR LICENSED TO OPERATE UPON THE PUBLIC HIGHWAYS OF THE STATE. CLEARLY, UNDER THE RULING LAID DOWN IN THE YOSEMITE PARK CASE, A LICENSE TO OPERATE MOTOR VEHICLES UPON SUCH HIGHWAYS IS NOT REQUIRED, IT FOLLOWS THAT OPERATION OF THE VEHICLES WITHIN THE MONUMENT CANNOT BE SAID TO BE OPERATION UPON ANY PUBLIC HIGHWAY. THEREFORE, UNDER THE PLAIN TERMS OF SUBSECTION 8101 (A), IN LIGHT OF THE JUDICIAL RULING AS TO LEGISLATIVE INTENT MADE BY AN APPEAL COURT OF THE STATE OF CALIFORNIA IN THE YOSEMITE PARK CASE, WE CANNOT BE CONCLUDE THAT THE UNITED STATES IS ENTITLED TO THE TAX REFUNDS BEING CLAIMED.

HOWEVER, RECOGNIZING THAT OUR POSITION IN THE MATTER HAS BEEN TAKEN WITHOUT A DETAILED ACCOUNT OF YOUR VIEWS, WE SHALL BE PLEASED TO CAREFULLY CONSIDER ANY ARGUMENTS YOU MAY WISH TO FURNISH IN OPPOSITION TO OUR POSITION.

IN RESPONSE TO OUR LETTER, THE STATE CONTROLLER, WITHOUT COMMENTING ON THE LEGAL ISSUES INVOLVED, REPLIED BY LETTER OF MARCH 26, 1963, THAT:

IN THE INTEREST OF FISCAL HARMONY THE CLAIMS FOR REFUND OF CALIFORNIA MOTOR VEHICLE FUEL LICENSE TAX FILED BY THE NATIONAL PARK SERVICE-JOSHUA TREE NATIONAL MONUMENT WHICH HAVE NOT ALREADY BEEN OFFSET BY THE FEDERAL GOVERNMENT, WILL BE PAID.

WE ARE BRINGING THE MATTER TO YOUR ATTENTION AND, THROUGH DISTRIBUTION AND PUBLICATION OF THIS LETTER, TO THE ATTENTION OF OTHER GOVERNMENT AGENCIES OPERATING IN THE STATE OF CALIFORNIA, FOR APPROPRIATE ACTION WITH RESPECT TO MOTOR VEHICLE FUEL TAX REFUNDS IN THAT STATE.