Deforest v. Flournoy

FRIEDMAN, Acting P. J. This is a consolidated appeal in two lawsuits. Each suit seeks refund of the motor vehicle fuel license tax collected by the State Controller on gasoline purchased by plaintiff during a period in the years .1962 through 1964. Plaintiff appeals from adverse judgments.

The Motor Vehicle Fuel License Tax Law includes section 8101, Revenue and Taxation Code, directing refund of the gasoline tax to certain nonhighway users. During the time in question section 8101 provided in part: “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 . . . .“1

Plaintiff was in the business of leasing out trucks for agricultural harvesting. His customers paid rental charges based primarily on the amount of produce hauled. The customers employed the drivers. Some of the trucks were used entirely in the fields and not driven on the highways at all. Others were operated partly over the fields and partly on the highways. Plaintiff purchased and supplied the gasoline. The trucks returned to his establishment each night and were fueled from his storage tank. He did not bill the customers for the gasoline, but recovered the cost as part of the rental charge.

There is no dispute over the quantity of gasoline consumed in on-highway driving or over plaintiff’s liability for the tax on that quantity. As to the gasoline consumed in off-highway operations, the question is whether plaintiff was a [260]person who “uses the motor vehicle fuel” within the meaning of the refund statute. The state contends that he was not.

Although plaintiff’s business did not include physical operation of the trucks, he utilized the gasoline for profit in the trucks he leased. In the context of other tax statutes the word “use” covers the utilization of property for profit-making purposes, including leasing; it is by no means restricted to physical use. (Union Oil Co. v. State Board of Equalization (1963) 60 Cal.2d 441, 447-448, 452 [34 Cal.Rptr. 872, 386 P.2d 496].) The word, of course, varies in meaning with the objective of the particular tax statute.