December 9, 1976
Mr. Lyle Wendell
Secretary of Revenue
Capitol Lake Plaza
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-116
Motor fuel refund claims by partnerships
Dear Mr. Wendell:
You have requested an opinion from this office in regard to the following facts:
FACTS:
A motor fuel tax refund claim is filed under the names of two partners, such as John Smith and John Doe, and said claim is signed by one partner on behalf of both. The invoices representing the refund claim may be in one or the other partner's name or in both names.
Based on the above facts you ask:
QUESTION:
Is the claim legally supported by such invoices or must the invoices contain the names of both partners?
SDCL 10-47-45 and 10-47-46 provide the requirement for the contents of a claim for refund for nonhighway use and the method of execution of such a claim. In addition, Department of Revenue Regulation 64:11:02:04 provides that an invoice must contain, among other things, the name and address of the purchaser which must be the name of the claimant.
Under South Dakota law, SDCL 48-2-1, the Uniform Partnership Act, every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member, binds the partnership. SDCL 48-3-6 provides that all partners have equal rights in the management and conduct of the partnership business. It is also true that each partner has a right to collect and receive debts due the firm such as tax refunds and that payment made to a partner amounts to payment to the partnership, relieving the obligor, the state, from liability to other partners or the firm.
While it is true that partners may individually conduct their own separate business, any action appearing on its face to be partnership business is partnership business unless the person thus acting has no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he had no such authority.
Unless you have knowledge that the acts represented to you to be acts of the partnership are in fact not such, you must treat them as bona fide partnership matters.
It is my opinion that the refund claim in question and its supporting invoices sufficiently represent the act of the partnership and should be paid.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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