Case No. RG272-00087

June 17, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Name of Applicant:Duffy Storage & Moving

Date of Filing: April 10, 1995

Case Number: RG272-87

This Decision and Order will consider an Application for Refund submitted in the crude oil overcharge refund proceeding by James Duffy for Duffy Storage & Moving. Mr. Duffy has requested a refund from crude oil funds available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) under the provisions of 10 C.F.R. Part 205, Subpart V. As explained below, we will deny the application.

In his Application for Refund, Mr. Duffy is applying for a refund for 708,712 gallons of petroleum products purchased by Duffy Storage & Moving during the refund period (August 1973 to January 1981). The issue in this case is whether James Duffy can receive a refund based on purchases made by Duffy Storage & Moving.

In a telephone conversation with the OHA on February 12, 1997, Mr. Duffy explained that he owned Duffy Storage & Moving during the refund period but later sold its stock and assets to another party. After approximately three years, the company went into bankruptcy. Mr. Duffy and a partner bought the intangible assets, such as the company name and the telephone number, from the bankruptcy court and formed a new corporation named Colorado Crane & Hauling, Inc., dba Duffy Crane & Hauling. In 1989, Mr. Duffy bought his partner’s shares in the company and renamed it J.D. Crane & Hauling, Inc., dba Duffy Crane & Hauling, Inc.

The OHA has previously considered the question of eligibility for a refund where changes of ownership are involved. See Gulf Oil Corp. / F & M Canterbury, Inc., 19 DOE ¶ 85,268 (1989); Gulf Oil Corp. / UCO, Inc., 18 DOE ¶ 86,057 (1989). As a general rule, we have held that the owner during the refund period should receive the refund unless either (a) the business was sold under a contract which clearly specified potential refunds as one of the assets being transferred or (b) the owner was a corporation whose stock was purchased by another entity during or after the refund period.

The OHA bases this determination under the presumption that the owner during the refund period directly experienced the alleged overcharges and any accompanying injury.

Since James Duffy sold the stock of Duffy Moving & Storage after the refund period, he is not eligible to receive a refund based on Duffy Moving & Storage’s petroleum purchases. We will therefore deny Mr. Duffy’s Application for Refund.

It Is Therefore Ordered That:

(1) The Application for Refund filed by James Duffy on behalf of Duffy Storage & Moving (Case No. RG272-87) is hereby denied.

(2) This is a final Order of the Department of Energy.

George B. Breznay

Director

Office of Hearings and Appeals

Date: June 17, 1997