Case No. RK272-03969
January 7, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Supplemental Order
Name of Applicant: Sullivan Trucking, Inc./Peak Transportation, Inc.
Date of Filing: October 16, 1996
Case Number: RK272-03969
This Decision and Order will consider an Application for Supplemental Refund filed in the Subpart V crude oil refund proceeding by Peak Transportation, Inc. (Peak). (1) The Application is based upon purchases of refined petroleum products made by Sullivan Trucking, Inc. (Sullivan) from August 1973 to January 1981.
In the Application, Peak explains that it bought the assets of Sullivan (through Peak's subsidiary Statewide Trucking Co.) pursuant to a sales agreement dated December 26, 1990. The assets transferred from Sullivan to Peak (through Statewide Trucking Co.) in the sale included: trade receivables, real property (e.g., tractors, utility trailers, pickup trucks, office equipment, supplies, etc.), and a building lease. Peak did not purchase the capital stock of Sullivan.
We have a statutory duty to identify and provide restitution to injured persons. 15 U.S.C. § 4502 (b). We would be negligent in discharging that duty if we granted a refund to someone other than an identified injured person. Texaco/Huffy Gas, 22 DOE ¶ 85,220 at 88,586 n. 4. Therefore, the refund procedures we have established provide that the right to receive a refund generally remains with the owner of a firm during the price control period. Nevertheless, the right to receive a refund can be transferred to a subsequent owner of the firm if: (i) the firm is a corporation, the entire capital stock
of which was purchased by the subsequent owner; or (ii) the firm's assets were sold under an agreement that indicated, either explicitly or implicitly, that potential refunds were being transferred. Mrs. M.B. Troy, 23 DOE ¶ 85,049 (1993).
Peak did not purchase any of the capital stock of Sullivan in the 1990 sales agreement. In addition, there is no indication that the right to receive future crude oil refund monies was either explicitly or implicitly included in the sales agreement. As such, the owners of the capital stock of Sullivan did not relinquish their right to receive the supplemental crude oil refund based on the company's petroleum purchases during the price control period. We will therefore deny the Application submitted by Peak Transportation, Inc.
It Is Therefore Ordered That:
(1) The Application for Supplemental Refund filed by Sullivan Trucking, Inc./Peak Transportation, Inc., Case No. RK272-03969, is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: January 7, 1997
(1) For information pertaining to the Supplemental Distribution of Subpart V Crude Oil Refund Monies, see State of Montana, et al., 25 DOE ¶ 85,059 (1995).