705 S.W.2d 15 (Ark. 1986) 288 Ark. 182 Charles D. RAGLAND, Commissioner of Revenues, Department of Finance and Administration, State of Arkansas, Appellant, v. GULF OIL CORPORATION and Paul Collum Distributor, Inc., Appellee. No. 85-205. Supreme Court of Arkansas. March 17, 1986.
Rehearing Denied March 17, 1986.
SUPPLEMENTAL OPINION ON REHEARING
By petition for rehearing appellees urge that we failed to give due consideration to appellees' proof rebutting the presumption of Ark.Stat.Ann. § 75-1250 (Repl.1979). The proof was not disregarded, though our opinion, 703 S.W.2d 449, fails to discuss this point. As it should have been addressed, we issue this supplemental opinion.
Ark.Stat.Ann. § 75-1250 provides that any supplier, dealer or user who fails to keep records of motor fuel sales shall be prima facie presumed to have sold such fuel for taxable use, provided, "the presumption may be overcome by evidence adduced by the supplier, dealer or user."
The substance of appellees' proof, offered to rebut the undisputed fact that all records of sales invoiced to Coonrod Construction Company, Inc. were destroyed, consisted of questions to Doug Reece, auditor for the state, and to Mr. Paul Collum. Reece was asked whether in the course of his investigation he attempted to learn whether Collum had actually sold fuel for highway use. Reece said that he had not tried to obtain that information. The obvious answer to this proof is that the burden is not on the state to show what use was made of the fuel--rather, when the dealer fails to keep the records required under the law, the burden is his to show that the sales were not for taxable purposes. Thus the state was under no obligation to investigate to see what use was made of the missing sales.
The substance of the remaining proof consisted of questions to Mr. Collum, e.g. "Were you trying to commit a fraud?" "Were you trying to avoid paying road use tax?" "Have you ever sold fuel to people who use it for road use that you were aware of without collecting the tax?" "What type of people were you selling this three hundred and some-odd thousand gallons to?" (Answer: "Largely small consumers.") The balance of appellees' proof was that Collum's plant would not readily accommodate trucks, as opposed to passenger cars, and that during this period of time (1976-1980) wheat combining operations were going on in the region which resulted in large sales of diesel fuel. Mr. Collum could not, however, name the purchasers or identify specific sales.
We think appellees' proof wholly fails to meet the requirements of the statute. Section 75-1250 is intended to require dealers to preserve their records and invoices so the state can verify the payment of motor fuel taxes, if such taxes are due. Where a dealer destroys the records of his sales, he cannot expect to rebut the presumption of the statute simply by declaring that he did not knowingly sell to anyone who bought fuel for highway use, or offer similar generalized statements of non-liability. We interpret the statute as requiring proof of specific transactions not subject to the tax in order to rebut the presumption of liability.
PURTLE, J., not participating.