PRICE  DANIEL
    ATTORNEYGF.NERAL


                                         September     17, 1949


          Hon. Robert S. Calvert,                      Opinion No. v-906.
          Comptroller   of Public Accounts
          Austin, Texas                                Re:   Assignability of a creditia
                                                             taxes paid on oil fram tank
                                                             bottoms under Article    7057~1,
                                                              V.C.S.

          Dear Sir:

                            Your letter request     in reference   to the above   captioned
*
          matter    reads     in part as follows:

                           “During the period from Jiqly, 1942, to Decem-
                   ber, 1946, Petrolite Corporation,     Ltd. was producers
                   (sic) of oil in the East Texas fields, and their source
                   of production consisted of of1 obtained from tank bot-
                   tams . During this period they paid into the State
                   $9,407.51.    On February   5, 1947, the Comptroller
                   notified Petrokite Corporation    of the Stack Case (199
                   S.W.Zd 701) and advised such corporation      that they
                   were due no more tax as the producer on oil obtained
                   from tank bottoms.

                           “Petrolite Corporation filed no report of preduc-
                   ing oil from any other source in Texas.     Section 13 of
                   Article   7057a, provides:

                          ‘(13). When it shall appear that a taxpayer to
                         whom the provisions    of this Act sinall apply has
                         erroneously   paid more taxes than were due dur-
                         ing any tax paying period either on the account
                         of a mistake of fact or law, it shall be the duty
                         of the State Comptroller    to credit the total a-
                         mount of taxes due by such taxpayer for the cur-
                         rent pertod with the total amount of taxes so er-
                         roneously paid.’

                   Petrolite  Corporation   has been unable to take credit
                   for the $9,407.51   paid on tank bottoms because it is not
                   at tke present t&me a producer of oil.
Hon. Robert     S. Calvert,    Page   2 (v-906)



                 “Petrolite  Corporation    has by an assignment,  as-
         signed the credit due it to Rock Hill Company of San
         Antonio, Texas, which company is a regular producer
         and would be authorized to a credit, should such com-
         pany make erroneous tax payments.          This Department
         is now confronted with the question as to whether we
         are authorized     to allow Rock Hill Company to take
         credit on its current tax payments with the amount due
         Petrolite   Corporation    properly assigned to it.

                “I shall thank you to advise this Department
         whether we are authorized      to permit Rock Hill Oil
         Company, a producer,     to take credit on its current tax
         payment of $9,407.5 1, which amount has been assigned
         to it by Petrolite  Corporation,   Ltd. *

               Subsection     13 of Section   1, Article   7057a,   V.C.S.,   pro-
vides:

                “(13).  When it shall appear that a taxpayer to
         whom the provisions     of this Act shall apply has erro-
         neously paid more taxes than were due during any tax
         paying period either on the account of a mistake of
         fact or law, it shall be the duty of the State Comptrolkr
         to credit the total amount of taxes due by such taxpayer
         for the current period with the total amount of taxes
         so erroneously   paid.”

            The Comptroller   of Public Accounts   has only those pow-
ers which have been expressly   delegated to him by the Legislature,
and those implied powers which are necessary     for Mm to carry out
the powers expressly given.

            You will note that subsection   13 above quoted authorizes
the State Comptroller  to credit the total amount of taxes due by the
taxpayer for the current period with the total amount of taxes erro-
neously paid and in no wise proasides that the Comptroller   has the
power or authority to give this credit to anyone else.

              You further ask in your opinion request whether the
credit might be allowed the Rock Hill Company on the theory that
the Rock Hill Company and the Petrolite       Corporation,    Ltd. are one
and the same corporation     in that the stock ownership and the gov-
erning officers   of the two corporations   are sufficiently   related so
that the two corporations    could be considered   one and the same.      It
appears from the file submitted to us that the Petrolite        Gorpora-
tion and the Rock Hill Oil Company are two separate and distinct
corporations.    They are two separate legal entities.       These corpo-
rations evidently recognize    the fact that they are not one and the
same or they would not have made the assignment          in question.
    .     -




Hon. Robert   S. Calvert,   Page 3 (V-906)




             You are, therefore,   advised that the State Comptroller
does not have the authority to credit the Rock Hill Company with
taxes erroneously   paid by the Petrolite   Corporation,    Ltd. However,
the Petrolite Corporation   is not without a remedy, if in fact the
taxes erroneously   paid were not a voluntary payment but were paid
under duress as set out in your request.      It can file its claim for
a refund with the next Legislature,    which will have the authority
under our Constitution and laws to make an appropriation         in the a-
mount so erroneously    overpaid.

                                  SUMMARY

               The State Comptroller    does not have the author-
        ity to credit the Rock Hill Oil Company with oil produc-
        tion (tankbottom) taxes erroneously    paid by the Petro-
        lite Corporation,  Ltd., on an assignment   of the credit
        due the Petrolite  Corporation,   Ltd. The Comptroller
        may credit only the taxpayer who made the overpayment,
        and not his assignee.    Art, 7057a, Sec. 1, subset.  13,
        V.C.S.

                                                 Yours   very truly

                                     ATTORNEYGENERALOFTEXAS




                                     BY
                                                  W. V. Geppert
                                                    Assistant

W VG/mwb




                                     ATTORNEYGENERAL