Case No. RF272-97370
April 23, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Petitioner: Monahan Transportation Co., Inc.
Date of Filing: June 27, 1994
Case Number: RF272-97370
This Decision and Order will consider an Application for Refund filed by Wilson, Keller & Associates (WKA), a private filing service, on behalf of Monahan Transportation Co., Inc. (Monahan), formerly located in Warwick, Rhode Island. Monahan, a trucking company that purchased refined petroleum products during the period August 19, 1973 through January 27, 1981, has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) pursuant to the Statement of Modified Restitutionary Policy in Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986).
In order to receive a refund for crude oil overcharges, an applicant that was an end-user (i.e., consumer) of refined petroleum products must document its purchase volumes. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987). An applicant's refund share is calculated using the current refund amount of $0.0016 per gallon.
Monahan requests a refund for 2,979,578 gallons of petroleum products which it purchased during the crude oil refund period. We have reviewed the information submitted by Monahan and have determined that Monahan was an end-user of petroleum products.(1) Monahan has demonstrated the volume of its claim by consulting reports filed with the Interstate Commerce Commission (ICC) and by using a reasonable estimation technique for those years for which
there are no reports. The firm is therefore entitled to a refund of $4,767 based on its purchases of diesel fuel.
In the firms application, WKA stated that Monahan was involved in a bankruptcy proceeding, and would inform this Office of the status of the case. Refund Application at 1 (RF272-97370). In a more detailed supplemental filing, WKA asserted that Ms. Virginia Lane from the law firm representing the Trustee in Bankruptcy had informed WKA that a Final Report was sent by the Trustee for approval by the Office of the U.S. Trustee, and a part of the Final Report was the scheduling of this refund as an asset of the Estate and a Proposed Order for Abandonment of the refund to WKAs clients, the owners of Monahan. However, in a March 24, 1997 telephone conversation Ms. Lane informed Toni Brown of OHA that the Trustee, Mr. Carmen J. Maggio had been informed by WKA that it would take three years or longer to receive any type of refund for purchases made by Monahan, and for that reason had agreed to the abandonment of the claim. Ms. Lane also informed Ms. Brown, that the Final Report had been filed, but had not yet been reviewed by the U.S. Trustee and released to the bankruptcy court for the scheduling or a final hearing. See Record of Telephone Conversation between Virginia Lane, Paralegal for Cole, Schotz, Meisel, Forman & Leonard, and Toni Brown of OHA (March 24, 1997). In a letter sent by fax on March 25, 1997, Anthony Sodono, III, the attorney representing Mr. Maggio, informed OHA that since the final hearing had not taken place, the Trustee must exercise his right to claim the Monahan refund on behalf of the firms unsecured creditors. Subsequently, in a letter dated March 27, 1997, Mr. Maggio, requested that the Monahan refund check be sent directly to him.
In cases in which a refund applicant is in bankruptcy, we have generally determined that the restitutionary purposes of the refund process are served by disbursing the refund to the trustee for appropriate distribution in accordance with the instructions of the bankruptcy court. See, eg., Murphy Oil Corp./Energy Cooperative, Inc., 23 DOE ¶ 85,104 at 88,271 (1993) (the OHA has recognized the court-appointed bankruptcy trustee, not the individual creditors, as the appropriate recipient of the refund); see also Atlantic Richfield Co./Mid Continent Systems, Inc., 21 DOE ¶ 85,424 (1991). Because the trustee is the appropriate person to receive the refund in such cases, we have directed that the refund be sent to the trustee even when he has not filed a formal Application for Refund. See, e.g., Shell Oil Co./Eastern Airlines, Case No. RF315-5538 (December 16, 1992) (unpublished Decision). We have decided to follow these precedents in the present case. Since the corporation was the injured party in the first instance, we will disburse the refund to the person entitled to receive any assets due the corporation, viz., the trustee. Since these funds will then fall within the jurisdiction of the bankruptcy court, it is that court that will have the responsibility for determining the ultimate disposition of these funds.
The deadline for the crude oil proceeding, June 30, 1995, has passed. It is the current policy of the DOE to pay eligible crude oil refund claimants at the rate of $0.0016 per gallon. We will decide whether sufficient funds are available for additional refunds, when we are better able to determine how much additional money will be collected from firms that have either outstanding obligations to the DOE or enforcement cases currently in litigation.
It Is Therefore Ordered That:
(1) The Application for Refund filed on behalf of Monahan Transportation Co., Inc., Case No. RF272-97370, is hereby granted as set forth in paragraph (2) below.
(2) 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 $4,767 from the DOE deposit fund escrow account maintained at the Department of the Treasury denominated Crude Tracking-Claimants 4, Account No. 999DOE010Z, to:
Monahan Transportation Co., Inc.
c/o Carmen J. Maggio
Trustee in Bankruptcy
1065 Bloomfield Avenue
Clifton, NJ 07012
(3) To facilitate the payment of future refunds, the applicant shall notify the Office of Hearings and Appeals in the event that there is a change of address, or if an address correction is necessary. Such notification shall be sent to:
Director of Management Information
Office of Hearings and Appeals
Department of Energy
1000 Independence Avenue, S.W.
Washington, D.C. 20585-0107
(4) The determination made in this Decision and Order is based on the presumed validity of the statements and documentary material submitted by the applicant. This determination may be revoked or modified at any time upon a finding that the basis underlying this Decision and Order is incorrect.
(5) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: April 23, 1997
(1)Interested parties were given an opportunity to submit comments regarding individual crude oil refund applications. No such comments were filed with respect to the applicant involved in this determination.