Case No. RF355-00016

February 06, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Applications for Refund

Names of Petitioners:Macmillan Oil Company/

Hotel Fort Des Moines

Hotel Fort Des Moines

Date of Filing: June 28, 1996

September 28, 1999

Case Numbers: RF355-16

RF355-47

This Decision considers two applications for refund filed on behalf of the Hotel Fort Des Moines in the Macmillan Oil Company (Macmillan) special refund proceeding. On March 7, 1988, Macmillan and the Department of Energy entered into a consent order regarding Macmillan's sales of petroleum products between May and December 1979. In the consent order, Macmillan agreed to remit $592,001 (including pre-settlement interest) to the DOE with respect to overcharges on sales propane and fuel oil during the period from November 1, 1973, to April 30, 1974.

On May 29, 1996, the DOE instituted special refund procedures for the distribution of those funds. Macmillan Oil Co., 25 DOE ¶ 85,115 (1996). The DOE found that DOE audit records identified the 66 firms and governmental entities that had been overcharged and the amount of each overcharge. The DOE determined that each of these customers should receive a proportionate share of the Macmillan escrow account based upon the amount that the audit records indicate they had been overcharged. In addition, applicants receive a proportionate share of the interest that has accrued on the funds since they were deposited with DOE. To qualify for a refund, an applicant must demonstrate that it is the same customer as that referred to in the consent order.

One of the customers referenced in the consent order is the Hotel Fort Des Moines (Hotel). We have received two applications on behalf of the Hotel. One is filed on behalf of Boss Companies, Inc., (Boss) the former owner of the hotel and the other by Paul Rottenburg, the current owner of the hotel. Mr. Rottenburg states that he purchased the hotel in 1977.

With regard to eligibility where there has been a change in ownership, the OHA presumes that the owner during the consent order period should receive the refund. This presumption may be rebutted if the present owner can show that either (a) the owner during the price

control period was a corporation whose corporate stock was purchased by the current owner or (b) the business was transferred under a contract that specified potential refunds, either expressly or implicitly, as one of the assets being transferred. Murphy/Aldrich and Love Service Station, 23 DOE ¶ 85,025 (1993); See also Texaco/Yankee Oil Co., 23 DOE ¶ 85,162 (1993); Texaco/Tenbarge Oil Co., 21 DOE ¶ 85,121 (1991).

Boss has submitted evidence, two warranty deeds, indicating that it was the owner during the entire consent order period, November 1, 1973, to April 30, 1974. Further, neither Boss nor Rottenburg has been able to submit the sales agreement which transferred ownership of the Hotel. Consequently, because Boss owned the Hotel during the during the consent order period, we will grant it a refund for the Hotel’s purchases of MacMillian products. Boss will receive a total refund of $10,822 ($6,196 principal plus $4,626 interest.) The application filed by Rottenburg, Case No. RF355-16, will be denied.

It Is Therefore Ordered That:

(1) The Application for Refund filed by Boss Companies, Inc. on behalf of the Hotel Fort Des Moines, Case No. RF355-47, is granted as set forth in Paragraph (3) below.

(2) The Application for Refund filed by Paul Rottenberg on behalf of the Hotel Fort Des Moines, Case No. RF355-16, is denied.

(3) 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 DOE deposit fund escrow account maintained at the Department of Treasury and funded by MacMillan Oil Company (Consent Order No. 999DOE035W) the amount of $10,822, representing $6,196 principal and $4,626 interest. The check shall be made payable to Boss Companies, Inc. and shall be sent to the address listed below:

Boss Companies, Inc.

c/o Donald A. Boss

950 Office Park Rd.

Suite 328

West Des Moines, IA 50265-2548

(4) The determinations made in this Decision and Order are based upon the presumed validity of statements and documentary material submitted by the applicants. The determinations may be revoked or modified at any time upon a finding that the factual basis underlying any of the Applications for Refund is incorrect.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: February 06, 2001