Case No. RK272-04299

September 2, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Applicant: Barton Brands, Ltd.

Date of Filing: March 24, 1997

Case Number: RK272-04299

This Decision and Order will consider an Application for Supplemental Refund filed by Barton Brands, Ltd. (Barton) in the Subpart V crude oil refund proceeding being conducted by the Office of Hearings and Appeals (OHA). (1) The Application is based upon purchases of refined petroleum products made by Glenmore Distillers, Inc. (Glenmore).

According to Barton’s Assistant Treasurer, Michael Napienter, Barton purchased Glenmore’s assets on September 1, 1995. Napienter confirmed, however, that Barton acquired none of Glenmore’s stock.

OHA has a statutory duty to identify and provide restitution to injured persons. 15 U.S.C. § 4502(b). The Office would be negligent in discharging that duty if it granted a refund to someone other than an identified injured person. Texaco/Huffy Gas, 22 DOE ¶ 85,220 at 88,586, n.4 (1992). Therefore, the refund procedures the Office has 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).

In this case, Barton did not purchase any of Glenmore’s capital stock. Moreover, Barton has not provided any evidence that the Asset Purchase Agreement between the parties transferred the right to the subject refund to Barton. As such, the owners of the Glenmore’s capital stock did not relinquish their right to receive the supplemental crude oil refund based on the Glenmore’s petroleum purchases during the price control period. We will therefore deny the Application submitted by Barton.

It Is Therefore Ordered That:

(1) The Application for Supplemental Refund filed by Barton Brands, Ltd., Case No. RF272- 04299, be and hereby is denied.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date:September 2, 1998

(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).