H. B. 218
(By Mr. Speaker, (Mr. Thompson) and Delegate Armstead)
[By Request of the Executive]
[Introduced June 24, 2008; referred to the
Committee on Finance.]
A BILL
to amend and reenact §11-14C-5 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §11-14C-48, all relating to the
average wholesale price of motor fuel for the two thousand
nine calendar year; creating the Motor Fuel Excise Tax
Shortfall Reserve Fund; providing for appropriation of moneys;
providing for the transfer of moneys from the Motor Fuel
Excise Tax Shortfall Reserve Fund to the State Road Fund;
providing a method for determining transfer amounts; providing
for the termination of the fund on the thirtieth day of June,
two thousand ten; providing definitions; and requiring the
Commissioner of Highways to submit monthly reports to the
Joint Committee on Government and Finance.
Be it enacted by the Legislature of West Virginia:
That §11-14C-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §11-14C-48, all to read as
follows:
ARTICLE 14C. MOTOR FUEL EXCISE TAX.
§11-14C-5. Taxes levied; rate.
(a) There is hereby levied on all motor fuel an excise tax
composed of a flat rate equal to twenty and one-half cents per
invoiced gallon plus a variable component comprised of either the
tax imposed by section eighteen-b, article fifteen of this chapter
or the tax imposed under section thirteen-a, article fifteen-a of
this chapter, as applicable: Provided, That the motor fuel excise
tax shall take effect the first day of January, two thousand four:
Provided, however, That on and after the first day of August, two
thousand thirteen, the flat rate portion of the motor fuel excise
tax shall be fifteen and one-half cents per gallon: Provided
further, That the variable component shall be equal to five percent
of the average wholesale price of the motor fuel: And provided
further, That the average wholesale price shall be no less than
ninety-seven cents per invoiced gallon and is computed as
hereinafter prescribed in this section.
(b) Determination of average wholesale price. --
(1) To simplify determining the average wholesale price of all
motor fuel, the Tax Commissioner shall, effective with the period
beginning the first day of the month of the effective date of the tax and each first day of January thereafter, determine the average
wholesale price of motor fuel for each annual period on the basis
of sales data gathered for the preceding period of the first day of
July through the thirty-first day of October. Notification of the
average wholesale price of motor fuel shall be given by the Tax
Commissioner at least thirty days in advance of each first day of
January by filing notice of the average wholesale price in the
state register, and by any other means as the Tax Commissioner
considers reasonable.
(2) The "average wholesale price" means the single, statewide
average per gallon wholesale price, rounded to the third decimal
(thousandth of a cent), exclusive of state and federal excise taxes
on each gallon of motor fuel, as determined by the Tax Commissioner
from information furnished by suppliers, importers and distributors
of motor fuel in this State, or other information regarding
wholesale selling prices as the Tax Commissioner may gather, or a
combination of information: Provided, That in no event shall the
average wholesale price be determined to be less than ninety-seven
cents per gallon of motor fuel: Provided, however, That for the
annual period encompassing calendar year two thousand nine, the
average wholesale price of motor fuel shall not exceed the average
wholesale price of motor fuel for the immediately preceding
calendar year as determined by the Tax Commissioner and filed with
the Secretary of State on the twenty-first day of November, two thousand seven and published in the state register on the thirtieth
day of November, two thousand seven.
(3) All actions of the Tax Commissioner in acquiring data
necessary to establish and determine the average wholesale price of
motor fuel, in providing notification of his or her determination
prior to the effective date of any change in rate, and in
establishing and determining the average wholesale price of motor
fuel, may be made by the Tax Commissioner without compliance with
the provisions of article three, chapter twenty-nine-a of this code.
(4) In any administrative or court proceeding brought to
challenge the average wholesale price of motor fuel as determined
by the Tax Commissioner, his or her determination is presumed to be
correct and shall not be set aside unless it is clearly erroneous.
(c) There is hereby levied a floorstocks tax on motor fuel
held in storage outside the bulk transfer/terminal system as of the
close of the business day preceding the first day of January, two
thousand four, and upon which the tax levied by this section has
not been paid. For the purposes of this section, "close of the
business day" means the time at which the last transaction has
occurred for that day. The floorstocks tax is payable by the
person in possession of the motor fuel on the first day of January,
two thousand four. The amount of the floorstocks tax on motor fuel
is equal to the sum of the tax rate specified in subsection (a) of
this section multiplied by the gallons in storage as of the close of the business day preceding the first day of January, two
thousand four.
(1) Persons in possession of taxable motor fuel in storage
outside the bulk transfer/terminal system as of the close of the
business day preceding the first day of January, two thousand four,
shall:
(A) Take an inventory at the close of the business day
preceding the first day of January, two thousand four, to determine
the gallons in storage for purposes of determining the floorstocks
tax;
(B) Report no later than the thirty-first day of January, two
thousand four, the gallons on forms provided by the commissioner;
and
(C) Remit the tax levied under this section no later than the
first day of June, two thousand four.
(2) In the event the tax due is paid to the commissioner on or
before the thirty-first day of January, two thousand four, the
person remitting the tax may deduct from their remittance five
percent of the tax liability due.
(3) In the event the tax due is paid to the commissioner after
the first day of June, two thousand four, the person remitting the
tax shall pay, in addition to the tax, a penalty in the amount of
five percent of the tax liability due.
(4) In determining the amount of floorstocks tax due under this section, the amount of motor fuel in dead storage may be
excluded. There are two methods for calculating the amount of
motor fuel in dead storage:
(A) If the tank has a capacity of less than ten thousand
gallons, the amount of motor fuel in dead storage is two hundred
gallons and if the tank has a capacity of ten thousand gallons or
more, the amount of motor fuel in dead storage is four hundred
gallons; or
(B) Use the manufacturer's conversion table for the tank after
measuring the number of inches between the bottom of the tank and
the bottom of the mouth of the drainpipe: Provided, That the
distance between the bottom of the tank and the bottom of the mouth
of the draw pipe is presumed to be six inches.
(d) Every licensee who, on the effective date of any rate
change, has in inventory any motor fuel upon which the tax or any
portion thereof has been previously paid shall take a physical
inventory and file a report thereof with the commissioner, in the
format as required by the commissioner, within thirty days after
the effective date of the rate change, and shall pay to the
commissioner at the time of filing the report any additional tax
due under the increased rate.
§11-14C-48. Motor Fuel Excise Tax Shortfall State Road Fund
support payment.
(a) There is hereby created and established in the State Treasury an unappropriated special fund to be known and designated
as the "Motor Fuel Excise Tax Shortfall Reserve Fund." The fund
shall consist of moneys appropriated to the fund by the
Legislature. The fund shall terminate on the thirtieth day of
June, two thousand ten. Any moneys remaining in the fund on that
termination date shall be transferred to the General Revenue Fund.
(b) Determination of motor fuel excise tax revenue shortfall
for the fiscal year ending the thirtieth day of June, two thousand
eight. --
(1) Shortfall for the fiscal year ending the thirtieth day of
June, two thousand eight. -- On the thirtieth day of June, two
thousand eight, or as soon thereafter as is practicable, the Tax
Commissioner shall determine the amount of the annual motor fuel
excise tax revenue shortfall that occurred for the fiscal year
ending on the thirtieth day of June, two thousand eight.
(2) Transfer for annual shortfall for the fiscal year ending
the thirtieth day of June, two thousand eight. -- On or before the
first day of August, two thousand eight, the Tax Commissioner shall
transfer moneys equal to the lesser of twenty million dollars or
the amount of the motor fuel excise tax revenue shortfall that
occurred for the fiscal year ending on the thirtieth day of June,
two thousand eight from the Motor Fuel Excise Tax Shortfall Reserve
Fund to the State Road Fund.
(c) Monthly shortfalls for the period of July, two thousand
eight to December, two thousand nine. -- Beginning on the
thirty-first day of July, two thousand eight and on the last day of
each month thereafter until, and including, the thirty-first day of
December, two thousand nine, or as soon after the last day of each
month as is practicable, the Tax Commissioner shall determine the
amount of the monthly motor fuel excise tax revenue shortfall that
occurred for each month. No such determination shall be made for
any month ending after the thirty-first day of December, two
thousand nine.
(1) Transfer for monthly shortfall. -- Within thirty days
after making the determination of the monthly motor fuel excise tax
revenue shortfall that occurred for each month, the Tax
Commissioner shall transfer moneys in an amount equal to the amount
of the motor fuel excise tax revenue shortfall that occurred for
each month from the Motor Fuel Excise Tax Shortfall Reserve Fund to
the State Road Fund: Provided, That the total amount of moneys
transferred from the Motor Fuel Excise Tax Shortfall Reserve Fund
to the State Road Fund in the fiscal year ending on the thirtieth
day of June, two thousand nine through total aggregate monthly
transfers shall not exceed the lesser of twenty million dollars or
the balance remaining in the Motor Fuel Excise Tax Shortfall
Reserve Fund. No such transfer shall be made that is attributable
to any month beginning after the thirty-first day of December, two thousand nine: Provided, however, That transfers attributable to
the reconciliation for the period beginning the first day of July,
two thousand nine to the thirty-first day of December, two thousand
nine mandated by paragraph (3) of this subsection shall be made, if
required.
(2) Annual reconciliation. -- On the thirtieth day of June,
two thousand nine, or as soon thereafter as is practicable, the Tax
Commissioner shall determine the amount of the annual motor fuel
excise tax revenue shortfall that occurred for the fiscal year
ending on the thirtieth day of June, two thousand nine.
(A) Transfer for annual reconciliation for the fiscal year
ending on the thirtieth day of June, two thousand nine. -- The
amount of the annual motor fuel excise tax revenue shortfall that
occurred for the fiscal year ending on the thirtieth day of June,
two thousand nine shall be compared to the total amount of moneys
transferred from the Motor Fuel Excise Tax Shortfall Reserve Fund
to the State Road Fund over the same fiscal year through total
aggregate monthly transfers. The resulting difference is the
reconciliation amount.
(B) Net Shortfall. -- If the total amount of moneys
transferred from the Motor Fuel Excise Tax Shortfall Reserve Fund
to the State Road Fund for the fiscal year ending on the thirtieth
day of June, two thousand nine through total aggregate monthly
transfers is less than the amount of the annual motor fuel excise tax revenue shortfall that occurred over the same fiscal year, then
on or before the first day of August, two thousand nine, an amount
of money equal to the reconciliation amount shall be transferred by
the Tax Commissioner from the Motor Fuel Excise Tax Shortfall
Reserve Fund to the State Road Fund: Provided, That the sum of the
reconciliation amount subject to transfer and the total amount of
moneys transferred from the Motor Fuel Excise Tax Shortfall Reserve
Fund to the State Road Fund in the fiscal year ending on the
thirtieth day of June, two thousand nine through total aggregate
monthly transfers shall not exceed the lesser of twenty million
dollars or the amount remaining in the Motor Fuel Excise Tax
Shortfall Reserve Fund.
(C) Net Overage. -- If the total amount of moneys transferred
from the Motor Fuel Excise Tax Shortfall Reserve Fund to the State
Road Fund for the fiscal year ending on the thirtieth day of June,
two thousand nine through total aggregate monthly transfers is
greater than the amount of the annual motor fuel excise tax revenue
shortfall that occurred over the same annual period, then moneys
equal to the reconciliation amount shall be offset against amounts
that would have otherwise been transferred by the Tax Commissioner
from the Motor Fuel Excise Tax Shortfall Reserve Fund to the State
Road Fund under this section in the next succeeding fiscal year
beginning on the first day of July, two thousand nine, and moneys transferred in the fiscal year beginning on the first day of July,
two thousand nine accordingly decrease.
(3) Transfer for reconciliation for the period beginning the
first day of July, two thousand nine to the thirty-first day of
December, two thousand nine. -- The amount of the annual motor fuel
excise tax revenue shortfall that occurred for the period beginning
on the first day of July, two thousand nine through the
thirty-first day of December, two thousand nine shall be compared
to the total amount of moneys transferred from the Motor Fuel
Excise Tax Shortfall Reserve Fund to the State Road Fund over the
same period through total aggregate monthly transfers. The
resulting difference is the reconciliation amount for the period
beginning the first day of July, two thousand nine to the
thirty-first day of December, two thousand nine.
(A) Net Shortfall. -- If the total amount of moneys
transferred from the Motor Fuel Excise Tax Shortfall Reserve Fund
to the State Road Fund for the period beginning on the first day of
July, two thousand nine through the thirty-first day of December,
two thousand nine through total aggregate monthly transfers is less
than the amount of the motor fuel excise tax revenue shortfall that
occurred over the same period, then on or before the first day of
February, two thousand ten, moneys equal to the reconciliation
amount for the period beginning the first day of July, two thousand
nine to the thirty-first day of December, two thousand nine shall be transferred by the Tax Commissioner from the Motor Fuel Excise
Tax Shortfall Reserve Fund to the State Road Fund: Provided, That
the sum of the reconciliation amount subject to transfer and the
total amount of moneys transferred from the Motor Fuel Excise Tax
Shortfall Reserve Fund to the State Road Fund in the period
beginning on the first day of July, two thousand nine through the
thirty-first day of December, two thousand nine through total
aggregate monthly transfers shall not exceed the lesser of twenty
million dollars or the amount remaining in the Motor Fuel Excise
Tax Shortfall Reserve Fund.
(B) Net Overage. -- If the total amount of moneys transferred
from the Motor Fuel Excise Tax Shortfall Reserve Fund to the State
Road Fund for the period beginning on the first day of July, two
thousand nine through the thirty-first day of December, two
thousand nine through total aggregate monthly transfers is greater
than the amount of the annual motor fuel excise tax revenue
shortfall that occurred over the same period, then moneys equal to
the reconciliation amount for the period beginning the first day of
July, two thousand nine to the thirty-first day of December, two
thousand nine shall remain in the State Road Fund for expenditure
as provided by law.
(d) Definitions. --
(1) "Calendar year" means the year beginning on the first day
of January, and ending on the thirty-first day of December.
(2) "Motor fuel excise tax revenue shortfall" means the
official West Virginia state revenue estimate for motor fuel excise
tax revenues for a designated period minus the amount of motor fuel
excise tax collected for the same period: Provided, That if the
motor fuel excise tax collected for the designated period is
greater than the official West Virginia state revenue estimate for
motor fuel excise tax revenues for the same period, the motor fuel
excise tax revenue shortfall is zero for the period.
(e)Reporting. -- The Commissioner of Highways shall submit
a report to the Joint Committee on Government and Finance not later
than the last day of each month for the period of July, two
thousand eight through December, two thousand nine providing an
analysis of the financial status of the State Road Fund and funds
for highway maintenance.
NOTE: The purpose of this bill is to freeze the variable rate
component of the motor fuel excise tax for the two thousand nine
calendar year and to create a funding mechanism to offset revenue
shortfalls in the State Road Fund.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§11-14C-48 is new, therefore, strike-throughs and underscoring
have been omitted.