Case No. RK272-04415

August 27, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Applicant: Renaissance Westchester Hotel

Date of Filing: May 13, 1997

Case Number: RK272-04415

This Decision and Order will consider an Application for Supplemental Refund filed by Renaissance Westchester Hotel (Renaissance) 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 another hotel, Stouffer Westchester Hotel (Stouffer).

According to Renaissance’s Controller, Byron Miller, the Stouffer Westchester Hotel was owned by Nestle during the refund period. In 1993, Nestle sold the Stouffer hotel chain to Renaissance. The sale, according to Mr. Miller, was an asset sale only. Renaissance acquired none of Stouffer’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, Renaissance did not purchase any of Stouffer’s capital stock. Moreover, Renaissance’s Controller has not provided any evidence that the Asset Purchase Agreement between the parties transferred the right to the subject refund to Renaissance. As such, the owners of the Stouffer’s capital stock did not relinquish their right to receive the supplemental crude oil refund based on the Stouffer’s petroleum purchases during the price control period. We will therefore deny the Application submitted by Renaissance.

It Is Therefore Ordered That:

(1) The Application for Supplemental Refund filed by Renaissance Westchester Hotel, Case No. RF272-04415, 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:August 27, 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).