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 Renaissances 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 Stouffers 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 firms 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 Stouffers capital stock. Moreover, Renaissances 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 Stouffers capital stock did not relinquish their right to receive the supplemental crude oil refund based on the Stouffers 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).