Case No. RF300-21676
November 3, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Applicant:Gulf Oil Corporation /
Monarch Oil Company, Inc.
Date of Filing: March 4, 1993
Case Number: RF300-21676
This Decision and Order will consider an Application for Refund submitted in the Gulf Oil Corporation (Gulf) overcharge refund proceeding by S.O.S. Oil Corporation (SOS) for Monarch Oil Company, Inc., (Monarch). SOS has requested a refund from Gulf 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. The procedures for disbursing the Gulf funds were set forth in a Decision and Order on September 8, 1987. Gulf Oil Corp., 16 DOE ¶ 85,381 (Gulf). As explained below, we will deny the Application.
In its Application for Refund, SOS is applying for a refund for 3,289,165 gallons of petroleum products purchased under the name Monarch Oil Company during the consent order period (January 1, 1973 to January 27, 1981). SOS purchased the assets of Monarch in June 1976 and began operating the business under the name S.O.S. Monarch Oil Corporation in November 1976. SOS later dropped Monarch from its name.
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.
SOS submitted the sales agreement it entered into with Monarch. The agreement shows that SOS did not buy capital stock in Monarch and did not specifically purchase the right to potential Gulf refunds. Therefore, the issue in this case is whether the gallons attributed to Monarch in the Gulf customer listing were purchased before or after the change of ownership.
In support of its claim, SOS submitted a Gulf Oil Corporation C & I/ JBR Customers list. Monarch Oil Company is listed under Base Number 2399843-8 as having purchased 3,289,165 gallons of Gulf products. However, the specific product purchased from Gulf is not listed. Therefore, we consulted the Gulf Oil Corporation Alphabetic Customer Listing which shows the specific products purchased by each customer. Monarch Oil Company is listed in the Alphabetic Customer Listing with Base Number 2399843-8 as having purchased 3,289,165 gallons of distillates. Distillates were decontrolled on July 1, 1976. Therefore, only distillate purchases before July 1, 1976 should be listed on the Gulf customer listings. Since SOS did not begin operating as S.O.S. Monarch Oil Corporation until November 1976, we must conclude that it did not purchase the 3,289,165 gallons of Gulf products listed under Monarch Oil Company with Base Number 2399843-8. Accordingly, we will deny SOSs Application for Refund.
It Is Therefore Ordered That:
(1) The Application for Refund filed by S.O.S. Oil Corporation (Case No. RF300-21676) is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: November 3, 1997