Case No. RF272-97810
January 16, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Applications for Refund
Names of Petitioners: Dixie Hauling Co., Inc. et al.
Dates of Filings: June 30, 1994 et al.
Case Numbers: RF272-97810 et al.
This Decision and Order will consider the Applications for Refund filed by four claimants that purchased refined petroleum products during the period August 19, 1973, through January 27, 1981 (the crude oil price control period). Each applicant has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals of the Department of Energy under 10 C.F.R. Part 205, Subpart V. We have established refund procedures for these funds, which have been made available through consent orders entered into by the DOE and numerous firms that sold crude oil during the price control period. E.g., Berry Holding Co., 16 DOE ¶ 85,405 (1987) (Berry); A. Tarricone, Inc. 15 DOE ¶ 85,495 (1987); Mountain Fuel Supply Co., 14 DOE ¶ 85,475 (1986).
In order to receive a refund for crude oil overcharges, an applicant generally must: (1) document its purchase volumes; and (2) show that it was injured as a result of the alleged overcharges. However, as we discussed in City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987), applicants who were end-users of petroleum products and whose businesses were unrelated to the petroleum industry are presumed to have absorbed the crude oil overcharges, and generally need not submit proof of injury to receive a refund in the Subpart V proceeding. See also Berry.
In general, a claimant is eligible for a refund equal to the number of gallons it purchased multiplied by $0.0016 per gallon, the volumetric refund amount currently available. We derived the volumetric refund amount by dividing the total crude oil refund monies currently available by the total U.S. consumption of
petroleum products during the period of crude oil price controls (2,020,997,335,000 gallons).
Each of the applicants considered in this Decision and Order is an end-user. Each bought petroleum products to operate its business. Each applicant has derived its purchase volume claim by using actual records or a reasonable estimation technique. We have carefully reviewed the information submitted by the applicants, and have determined that the information provided by the applicants sufficiently supports their requests for refunds.(1)
One of the applicants, Black & White Express, Inc., RF272-97837, was originally operated as a partnership.(2) This partnership was incorporated in October 1975, and the two partners then held equal shares of the corporation. There is no indication that the right to a refund was transferred at the time of incorporation. We have therefore granted the partnership under Case Number RG272-1023 a refund for purchases made during the partnership portion of the refund period, and awarded the corporation a refund under Case No. RF272-97837 for all of the purchases made during the refund period after incorporation. In the case of a voluntarily dissolved partnership, it has been the policy of the OHA to award the refund to the former partners according to their respective ownership interests in the partnership at the time of dissolution. See Texaco Inc./Wolfroms Garage, 22 DOE ¶ 85,164 (1992). Therefore, one partner, W.A. Birckbichler, is entitled to one-half the refund, and the other partners widow, Ethel Dunlap, is entitled to the other half. We direct Wilson, Keller and Associates, these applicants representative, to distribute the refund granted on behalf of Case No. RG272-1023 in this manner.
Another application considered in this decision was filed on behalf of Wheatley Motors, Inc. (Wheatley). The owner of Wheatley, Al Wheatley, Sr., passed away in 1984, and his widow, Dorothy Wheatley, died shortly thereafter. Both died testate, but neither left a specific bequest of the right to a refund. In the absence of a specific bequest of the right to a refund, we generally consider the right to a refund to be transferred by the residuary clause of a will. See, e.g., Texaco Inc./Eastland Texaco, 24 DOE ¶ 85,074 (1994). Mr. Wheatley devised fifty percent of his residual estate to his wife and the other half to a family trust for the benefit of his wife until she died. When Mrs. Wheatley died, that trust was terminated and divided equally between their two children, Joan Wheatley Cooley and Al Wheatley, Jr. The residuary clause of Mrs. Wheatleys will awards any residue and remainder, 60 percent to Joan Wheatley Cooley and 40 percent to Al Wheatley, Jr. Based on this information, the table below illustrates how the refund should be divided between the two children.
Recipient
Joan Wheatley Cooley
Al Wheatley, Jr.
Under the fathers Will, by way of distribution of the trusts 50 percent
25 percent
25 percent
Under mothers will, distribution of the mothers 50 percent
30 percent
20 percent
Division of the refund
55 percent
45 percent
Therefore, Joan Wheatley Cooley is entitled to 55 percent of the refund and Al Wheatley, Jr. is entitled to 45 percent of the refund. We direct Wilson, Keller and Associates, the applicants filing service, to divide the refund for Case No. RF272-97859 in this manner.
The applicants listed in the Appendix are treated as end-users of refined petroleum products for purposes of this proceeding. Accordingly, they are presumed injured by the crude oil overcharges and are entitled to receive their full allocable share of the crude oil monies. The refund amounts are calculated by multiplying the approved purchase volumes by the volumetric refund amount of $0.0016 per gallon. The purchase volumes and refunds approved for each applicant are set forth in the Appendix. The total volume for which refunds are approved in this Decision is 6,515,019 gallons, and the sum of the refunds granted is $10,424.
All of the applicants filed their Applications through Wilson, Keller & Associates, a private filing service. In accordance with the applicants' requests, their refund checks will be made payable to the applicants or Wilson, Keller & Associates and be sent to Wilson, Keller & Associates.(3)
The final deadline for the crude oil refund proceeding was June 30, 1995. It is the current policy of the DOE to pay crude oil refund claimants at the current rate of $0.0016 per gallon. We will decide whether sufficient crude oil overcharge funds are available for additional refunds for these and other successful applicants when we are better able to determine how much additional money will be collected from firms that have either outstanding obligations to the DOE or enforcement cases currently in litigation.
It Is Therefore Ordered That:
(1) The Applications for Refund filed by the four claimants listed in the Appendix attached to this Decision and Order for all available crude oil overcharge funds are hereby approved as set forth in Paragraph (2) below.
(2) The Director of Special Accounts and Payroll, Office of Departmental Accounting and Financial Systems Development, Office of the Controller, of the Department of Energy shall take appropriate action to disburse from the escrow account maintained at the Department of the Treasury denominated Crude Tracking- Claimants IV, Account No. 999DOE010Z, the amounts specified in the Appendix to this Decision and Order. The refund checks for the applicants listed in the Appendix shall be made payable to [Applicants Name] OR Wilson, Keller & Associates, and shall be sent to the following address: P.O. Box 221135, Memphis, TN 38122.
(3) Upon receipt of the refund checks, Wilson, Keller & Associates shall divide the refund for Case Nos. RF272-97859 and RG272-0123 as set forth in this Decision and Order. Wilson, Keller & Associates shall then notify the Office of Hearings and Appeals, in writing, that it has divided the refunds in such a manner.
(4) To facilitate the payment of future refunds, each applicant shall notify the Office of Hearings and Appeals in the event that there is a change in its address, or if an address correction is necessary. Such notification shall be sent to:
Director of Management Information
Office of Hearings and Appeals
Department of Energy
1000 Independence Avenue, S.W.
Washington, D.C. 20585-0107
(5) The determinations made in this Decision and Order are based upon the presumed validity of the statements and documentary material submitted by the applicants. This Decision and Order may be revoked or modified at any time upon a determination that the basis underlying a refund application is incorrect.
(6) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: January 16, 1997
(1)One applicant, Wheatley Motors, Inc., submitted a printout of the amount of its purchases from Gulf Oil Corp. (Gulf) during the refund period. We believe that Gulf printouts include total purchases during the entire calendar year 1973 because (1) although the refund period in the Gulf proceeding began in August 1973, the Gulf consent order period began in January 1973; and (2) the yearly pattern of purchases seen in Gulf printouts confirms this assumption. See Carolina Dairies Corp. et al., Case No. RF272-97820 et al. (July 23, 1996). Accordingly, we reduced the volume of Wheatley Motors, Inc. by approximately eight and one-half months of purchases.
We further note that another applicant, Dixie Hauling Co., Inc. (Dixie), had a claim filed on its behalf in the Surface Transporters (ST) Refund proceeding (Case No. RF270-2273) that this Office conducted in connection with the Stripper Well Settlement Agreement. However, because we find that the ST claim was unauthorized, Dixie is eligible for a crude oil refund. See Parker Leasing, Inc., 20 DOE 85,648 (1990).
(2)The partnerships refund claim was set up by this Office under a new case number, RG272-01023.
(3)Although a payee for Black & White Express Co., RG272-01023, W.A. Birckbichler, and a payee for Wheatley, Case No. RF272-97859, Joan Wheatley Cooley, did not sign the respective application before the June 30, 1995 crude oil refund proceeding deadline, we are granting refunds to those payees because Black & White Express Co.s and Wheatleys application: (1) were submitted prior to the crude oil refund proceeding deadline; (2) contained accurate information supporting the companies rights to refunds; and (3) had yet to be granted by this Office prior to their amendment by the signatures of the additional payees. The two cases at issue are unlike some recent cases where untimely applications by otherwise presumably eligible applicants were denied. For example, in Gulf Oil Corporation/Walnut Creek Gulf, 26 DOE ¶ 85,004 (1996), and Gulf Oil Corporation/Hilltop Gulf, 25 DOE ¶ 85,097 (1996), the applicants who submitted pre-deadline applications, unlike the present applicants, were not eligible for refunds. The two cases at issue are also unlike Stillman Management, 26 DOE ¶ 85,002 (1996), in which no application was received prior to the deadline in the crude oil refund proceeding. Finally, the situations here are also unlike Gulf Oil Corporation/Rices Grocery & Gulf Service, Case No. RR300-00274 (March 6, 1996), in which information supporting certain partners claims for refund was not submitted until one partner had already been granted a refund, well after the Gulf deadline.
Appendix
CASE NO. APPLICANT FIRM CONTACT VOLUME REFUND RF272-97810 DIXIE HAULING CO., INC. OR WILSON, KELLER & ASSOCIATES C/O JOHN WILBANKS 3,126,300 $5,002 RF272-97837 BLACK & WHITE EXPRESS, INC. OR WILSON, KELLER & ASSOCIATES C/O ETHEL DUNLAP 859,401 $1,375 RF272-97859 WHEATLEY MOTORS, INC. OR WILSON, KELLER & ASSOCIATES A. WHEATLEY JR & J COOLEY 2,292,882 $3,669 RG272-01023 BLACK & WHITE EXPRESS CO. OR WILSON, KELLER & ASSOCIATES E DUNLAP & W BIRCKBICHLER 236,436 $378 Totals: 4 6,515,019 $10,424
Last Updated on 8/14/97
By OHA