Conford, Kolovsky and Carton. The opinion of the court was delivered by Conford, P.J.A.D.
Appellant, a motor carrier subject to the Motor Carriers Road Tax Act of 1963 (L. 1963, c. 44; N.J.S.A. 54:39A-1 et seq.), appeals from a denial by defendant, administrator of the tax, of its claim for refund of $37,491.63. This amount represented payment by it in 1967 to Connecticut, Maryland and Pennsylvania of road use taxes assessed by those states for various years from 1962 to 1967 measured by motor fuel used by its vehicles on highways in those states on which motor fuel sales taxes had been paid by it in New Jersey pursuant to the Motor Fuel Sales Tax Act (L. 1935, c. 319, as amended; N.J.S.A. 54:39-1 et seq.).
Of the total amount mentioned, $6.052.68 represented the New Jersey taxing period prior to October 1, 1964, during which the statute contained no provision for refund on account of taxes paid other states. For that reason there was no statutory basis upon which defendant could have made a refund of that sum. But effective October 1, 1964 the road tax act was amended by L. 1964, c. 258, so as to provide, by what is now N.J.S.A. 54:39A-8 (section 8 hereinafter), for a refund for similar taxes paid to another state "on or by reason of the use or consumption therein within such carrier's reporting period of motor fuel attributable to purchase in this State * * *." The remainder of the $37,491.63 claimed was for reporting periods subsequent to October 1, 1964, but defendant rejected those claims because appellant had not filed the claims "within 4 months following the end of the [respective] reporting period[s]," as expressly required by section 8.
The instant litigation came about as a result of claims in 1967 by the tax authorities in the states referred to that audits of appellant's returns for the years mentioned had disclosed additional amounts of road use taxes due those
states in the aggregate sum stated. When appellant paid the added assessments it sought refunds from defendant. These were rejected, as just indicated.
Our determination of the issues presented will be simplified by considering separately the different portions of the refund claim in question.
As to the $6,052.68 claim
While appellant's precise position as to this portion of the claim is not too clear, it is, as best we can understand it, that the absence of a refund provision in the statute prior to October 1, 1964 for road use taxes paid in other states rendered the statute illegal as imposing "double taxation" and an unconstitutional burden on interstate commerce.
To appraise the contention one must examine the relationship between the motor fuel sales tax act and the road tax act, as the latter stood prior to the 1964 amendment. The motor fuel sales tax act imposes a tax on every gallon of motor fuel sold or used in this state. N.J.S.A. 54:39-27. The tax is passed on to the purchaser. "Use" includes transfer of fuel by a distributor into a motor vehicle. N.J.S.A. 54:39-8.
The road tax act as first enacted provided that every motor carrier, as defined in the act (including appellant), should "pay a road tax equivalent to the rate per gallon of the motor vehicle fuel tax which is currently in effect, calculated on the amount of motor fuels used in its operations within this State." N.J.S.A. 54:39A-3. N.J.S.A. 54:39A-6 provided that the amount of motor fuels used in the State should "be computed to be such proportion of the total amount of such motor fuels" used in the carrier's "entire operations within and without this State as the total number of miles traveled within this State bears to the total number of miles traveled within and without this State." The Director of the Division of Motor Vehicles was authorized, by N.J.S.A. 54:39A-5, to impose the tax on a
quarterly basis, starting with the quarter from June 1 to August 31, 1963. If the motor carrier purchased any motor fuel in New Jersey during a given quarter, the amount of tax paid thereon (pursuant to N.J.S.A. 54:39-27) was allowed, under section 8, as a credit against the road tax ...