
    No. 597
    BONDED OIL COMPANY, Claimant, v. STATE TAX COMMISSIONER, Respondent.
    
      Opinion filed November 7, 1947
    
    Appearances:
    
      Fitzpatrick, Striclcling & Marshall (O. J. Rife, Jr.), for the claimant.
    
      W. Bryan Spillers, Assistant Attorney General, for the state.
   MERRIMAN S. SMITH, JUDGE.

The Bonded Oil Company, a corporation existing under the laws of the state of Ohio, files this claim in the amount of $448.67 for the refund of overpayment to the state tax commissioner of business and occupation tax as levied by chapter 11, article 13, code (W. Va.) for the years 1942, 1943 and 1944, and which amount is admitted by the state agency after having made an audit of claimant’s books. The state tax commissioner on petition heretofore filed pursuant to code ll-l-2a, refunded similar overpayments for the years 1945, 1946 and the first quarter of 1947, but refused to refund the payments for prior years on the ground that the payments had been made more than two years prior to tho filing of tho petition for a rofund, and wore thoroforo barrod by tho two-yoar statute applicable to tho state tax commissioner governing tho return of erroneously paid taxes.

The overpayments wore made because of an erroneous interpretation of the definition of “gross proceeds of sales” under chapter 11, article 115, section 1, in that amounts paid to the federal and state governments as a gallonage tax were included in determining the amount of the gross sales. The state, gallonage tax, amounting to five cents per gallon, as authorized in chapter 11, article 14, section 1», code, and the federal gallonage tax, amounting to .015 cents per gallon, as set out in 26 U.S.O.A. section 3412, as amended, should have been deducted from the total retail price of the gasoline, and the net figures used as a basis for the computation of tho business and occupation tax due the state of West Virginia by the claimant.

An itemized list of refund for the respective years are as follows:

Correct Amt. of Amount amount overpay-paid due ment
Year ending 12-31-1942 $681.58 $466.64 $214.94
Six Months ending 6-30-1943 223.23 153.41 69.82
Six Months ending 12-31-1943 164.03 111.57 52.46
Year ending 12-31-1944 359.44 247.99 111.45

making a total refund due of $448.67.

All of the overpayments for which claim is here made were paid within less than five years prior to the filing of this claim, and the only question before this court is whether the five-year statute of limitations under code 14-2-21, the act creating the state court of claims, applies rather than the two-year statute Of limitations, code ll-l-2a, which is applicable to the tax commissioner.

In conformity with the majority holding in former claims, namely, Raleigh County Bank v. State Tax Commis sioner, No. 579 and Eastern Coal Sales Company v. State Tax Commissioner, No. 597, the opinion of the majority of the court in the instant claim is that it is the duty of this court to consider each claim as presented on its merits, and if there is a moral obligation upon the state under equity and good conscience, such as there would be in a judicial proceeding between private persons, that an award should be made and the five-year statute of limitations, code 14-2-21 is applicable to this claim. Therefore, an award in the amount of four hundred forty-eight dollars and sixty-seven cents ($448.67) is hereby recommended to be made to claimant, the Bonded Oil Company.

ROBERT L. BLAND, JUDGE,

dissenting..

The claim is filed for the refund of an overpayment of gross sales tax. The reason assigned for such overpayment is the faulty interpretation by claimant of the term “gross proceeds of sale.” The amount of the refund originally sought was $1147.43, the aggregate amount of alleged overpayments for the years 1939 to 1944. The petition was so amended as to reduce the amount to that for which the award is made.

Chapter 11, article 1, section 2a of the code of ^Vest Virginia provides that any taxpayer claiming to be aggrieved through being required to pay any tax into the treasury of this state may, within two years from the date of such payment, and not after, file with the official or department through which the tax was paid, a petition in writing to have refunded to him any such tax, or any part thereof, the payment of which is claimed by him to have been required unlawfully. No application, under this statute, was made to the tax commissioner, within two years from payments, for the refund of overpayment of taxes for which the above award is made. The specific remedy afforded by such statute for the refund sought was not pursued.

Section 21 of the court of claims act provides as follows:

“Limitations of Time. — The court shall not take jurisdiction over a claim unless the claim is filed within five years after the claim might have been presented to such court . . .”

The single question presented by the record in this case is by which of the two statutes of limitations aforesaid is the claim controlled.

By its failure to make application to the tax commissioner for refund under code chapter 11, article 1, section 2a, I think claimant has slept upon its rights. It has exhausted a specific remedy provided by law.

In the opinion in the case of State v. Penn Oak Oil & Gas Company, Inc. 128 W. Va. 212; 36 S. E. (2d) 595, Judge Fox says:

“When a statute imposing a tax provides the taxpayer with a specific remedy against injustices arising thereunder, and the taxpayer fails to avail himself of the remedy so provided, he cannot go outside the statute for other and different remedies.”

I refer to my dissenting statements in Raleigh County Bank v. State Tax Commissioner and Eastern Coal Sales Company v. State Tax Commissioner, in both of which awards were made by a majority of the court at its present term, for further elaboration of my opposing views.  