Case No. RF300-19925
January 7, 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Applicant:Gulf Oil Corporation /
McLarty Leasing and Transportation Co.
Date of Filing: April 15, 1992
Case Number: RF300-19925
This Decision and Order will consider an Application for Refund submitted in the Gulf Oil Corporation (Gulf) overcharge refund proceeding by Automotive Rentals, Inc. (Automotive) for McLarty Leasing and Transportation Company (McLarty Leasing). Automotive has requested a refund from Gulf funds available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) under the provisions of 10 C.F.R. Part 205, Subpart V. The procedures for disbursing the Gulf funds were set forth in a Decision and Order on September 8, 1987. Gulf Oil Corp., 16 DOE ¶ 85,381 (Gulf). As explained below, we will deny the Application.
In its Application for Refund, Automotive is applying for a refund for 9,176,429 gallons of petroleum products purchased by McLarty Leasing during the consent order period (January 1, 1973 to January 27, 1981). The issue in this case is whether Automotive can receive a refund based on purchases made by McLarty Leasing.
With its application, Automotive submitted a sales agreement. The agreement shows that Automotive purchased all of the corporate shares of McLarty Management Company, Inc. (McLarty Management) on October 31, 1983. The agreement also states that McLarty Management "has entered into a Fleet Management Agreement (?FMA') dated October 31, 1983, with McLarty Leasing System, Inc., and McLarty Leasing Systems, Inc. (Texas) (collectively ?MLS'), both wholly owned subsidiaries of Leaseway Transportation Corp. (Leaseway) providing for the performance of fleet management and administrative services with regard to the outstanding MLS leases."
The OHA has previously considered the question of eligibility for a refund where changes of ownership are involved. See Gulf Oil Corp. / F & M Canterbury, Inc., 19 DOE ¶ 85,268 (1989); Gulf Oil Corp. / UCO, Inc., 18 DOE ¶ 86,057 (1989). As a general rule, we have held that the owner during the refund period should receive
the refund unless either (a) the business was sold under a contract which clearly specified potential refunds as one of the assets being transferred or (b) the owner was a corporation whose stock was purchased by another entity during or after the refund period. The OHA bases this determination under the presumption that the owner during the refund period directly experienced the alleged overcharges and any accompanying injury.
Although Automotive purchased the stock in McLarty Management, there is no evidence that Automotive has purchased any of the shares to McLarty Leasing. According to the sales agreement, McLarty Management managed two leasing companies owned by another party. There is no evidence that McLarty Management was injured by overcharges on fuel purchases made by McLarty Leasing. Therefore, Automotive has not shown the company it purchased was adversely affected by the overcharges included in McLarty Leasing's petroleum purchases. We will therefore deny the Application for Refund submitted by Automotive.
It Is Therefore Ordered That:
(1) The Application for Refund filed by Automotive Rentals, Inc., on behalf of McLarty Leasing and Transportation Company (Case No. RF300-19925) is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: January 7, 1997