B-100300, FEB. 10, 1956

B-100300, FEB. 10, 1956

TO HONORABLE Z. D. ATKINS, COMMISSIONER, DEPARTMENT OF FINANCE AND TAXATION, STATE OF TENNESSEE:

REFERENCE IS MADE TO THE LETTER OF JUNE 29, 1955, FROM THE DIRECTOR OF YOUR GASOLINE TAX AND OIL INSPECTION DIVISION RELATIVE TO THE CLAIM OF THE UNITED STATES AGAINST THE STATE OF TENNESSEE FOR REFUND IN THE SUM OF $1,731.97 REPRESENTING THE AMOUNT OF GASOLINE TAX PAID ON 24,741.9 GALLONS OF GASOLINE PURCHASED DURING THE PERIOD MARCH 14, 1947, THROUGH APRIL 8, 1953, BY VARIOUS AGENCIES OF THE FEDERAL GOVERNMENT FOR USE IN THE PERFORMANCE OF ESSENTIAL GOVERNMENTAL FUNCTIONS. THE CLAIM WAS FILED WITH YOUR DEPARTMENT BY OFFICE LETTER OF OCTOBER 6, 1954.

VARIOUS AGENCIES OF THE GOVERNMENT HAD PREVIOUSLY FILED CLAIMS WITH THE STATE OF TENNESSEE FOR REFUND OF THE GASOLINE TAXES IN QUESTION. IN EACH INSTANCE THE CLAIM WAS RETURNED WITH INSTRUCTIONS FOR REVISION IN ACCORDANCE WITH THE LAWS AND REGULATIONS OF THE STATE OF TENNESSEE GOVERNING REFUNDS OF GASOLINE TAX. THEREAFTER, THE GOVERNMENT AGENCIES TRANSMITTED THE TAX EXEMPTION CERTIFICATES TO THIS OFFICE FOR COMPLIANCE WITH YOUR REQUEST THAT THE CLAIMS BE REVISED. THE INSTANT CLAIM REPRESENTS A CONSOLIDATION AND REVISION OF THE CLAIMS FORMERLY FILED BY AGENCIES OF THE DEPARTMENTS LISTED IN OUR LETTER OF OCTOBER 6, 1954.

PUBLIC CHAPTER NO. 168 OF THE 1947 LEGISLATURE OF THE STATE OF TENNESSEE, WHICH WAS IN EFFECT FOR THE PERIOD COVERED BY THE CONSOLIDATED CLAIMS IN QUESTION, PROVIDED THAT "THE LIABILITY FOR, OR THE INCIDENT OF, THE GASOLINE TAX IS HEREBY DECLARED TO BE A LEVY ON THE CONSUMER.' THUS, AS THE INCIDENCE OF THE GASOLINE TAX WAS ON THE GOVERNMENT OF THE UNITED STATES, THERE IS FOR APPLICATION THE WELL ESTABLISHED CONSTITUTIONAL PRINCIPLE THAT THE UNITED STATES IS ENTITLED TO PERFORM ITS FUNCTIONS FREE FROM ANY INTERFERENCE OR CONTROL BY A STATE BY TAXATION OR OTHERWISE. SEE OHIO V. THOMAS, 173 U.S. 276; JOHNSON V. MARYLAND, 254 U.S. 51; AND MAYO ET AL. V. UNITED STATES, 319 U.S. 441. HENCE, THE UNITED STATES HAS NO LIABILITY TO PAY THE TAXES AND IS ENTITLED TO A REFUND THEREFORE.

IN THE LETTER OF JUNE 29, 1955, FROM YOUR DEPARTMENT, THE GOVERNMENT'S CONSOLIDATED AND REVISED CLAIM, WHICH WAS FILED ON OCTOBER 6, 1954, WAS RETURNED FOR REVISION ON THE GROUNDS THAT THAT CERTAIN ITEMS INCLUDED THEREIN WERE NOT FILED WITHIN THE PERIOD PRESCRIBED THEREFOR BY THE STATUTE OF LIMITATIONS OF THE STATE OF TENNESSEE. HOWEVER, IT WOULD SEEM THAT IN SO CONCLUDING, DUE REGARD WAS NOT HAD FOR THE FACT THAT THE TERMS OF THE STATE LAW ARE NOT CONTROLLING IN THE CONSIDERATION OF THE MATTER. IT IS WELL SETTLED THAT THE UNITED STATES IS NOT BOUND BY ANY STATE STATUTE OF LIMITATIONS. SEE UNITED STATES V. SUMMERLIN, 310 U.S. 414, AND CASES CITED THEREIN. THUS THE STATUTE OF LIMITATIONS OF THE STATE OF TENNESSEE MAY NOT OPERATE AS A BAR TO THE CLAIM OF THE FEDERAL GOVERNMENT FOR THE REFUND OF THE GASOLINE TAXES IN QUESTION.

ACCORDINGLY, THE CLAIM AND SUPPORTING PAPERS ARE RETURNED, AND IT IS REQUESTED THAT CHECK FOR $1,731.97 MADE PAYABLE TO THE TREASURER OF THE UNITED STATES BE TRANSMITTED HERE TO LIQUIDATE THE TOTAL AMOUNT OF THE CLAIM.