Texas Attorney General Opinion: JM-1158 Page: 4 of 5
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Honorable Gibson D. (Gib) Lewis - Page 4 (JM-1158)
The state tax on the first sale or use of motor fuels
was enacted originally in 1941 and contained an exemption
from the tax for gasoline sold to the federal government for
its exclusive use. Acts 1941, 47th Leg., ch. 184, art.
XVII, 2, at 304. The exemption was retained in subsequent
codifications of the statute. See V.T.C.S. Tax.-Gen. arts.
9.01-9.27, 10.01-10.25 (1960). Every attorney general
opinion that has considered the question has construed this
exemption to reach the federal government and its agents,
but not to reach independent contractors who had entered
into contracts to perform services for the federal govern-
ment. See. e.,, Attorney General Opinions C-694 (1966);
WW-1502 (1962); WW-172 (1957); V-583 (1948).
For example, in Attorney General Opinion V-1492 (1952),
this office concluded that the motor fuels tax may be
imposed upon a purchaser of gasoline that was deemed an
independent contractor of the Reconstruction Finance
Corporation, an administrative agency of the federal
government. The independent contractor, United States
Rubber Company, entered into a contract with the
Reconstruction Finance Corporation for the lease and
operation of a synthetic rubber plant owned by the company.
The opinion discussed and reaffirmed earlier opinions that
concluded that agents of the federal government shared in
the federal government's immunity from taxation, but that
independent contractors who entered into contracts with the
federal government for the performance of services are not
so immune. Quoting from Carruth v. Valley Ready-Mix Con-
crete Co., 221 S.W.2d 584, 592 (Tex. Civ. App. - Eastland
1949, writ ref'd), the opinion declared:
An independent contractor and an agent are
not always easy to distinguish, and there is
no uniform criterion by which they may be
differentiated. Generally, however, the
relations are distinguished by the extent of
the control which the employer exercises over
the employee in the manner in which he per-
forms his work.
Attorney General Opinion V-1492, supra, at 9-10; see also
Attorney General Opinions 0-6964 (1946); 0-5569 (1943);
O-5309A (1944) (overruling Attorney General Opinion 0-5309
and reaffirming Attorney General Opinion 0-4389); 0-5214
(1943); 0-4731, 0-4689, 0-4389 (1942).p. 6113
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-1158, text, April 18, 1990; (https://texashistory.unt.edu/ark:/67531/metapth273596/m1/4/?q=%22Mattox%2C%20Jim%22: accessed May 22, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.