H. B. 4563
(By Delegates Ashley and Trump)
[Introduced February 15, 2006; referred to the
Committee on Finance.]
A BILL to amend and reenact §11-14C-5 of the Code of West Virginia,
1931, as amended, relating to excise taxes levied on motor
fuel.
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 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 seven, 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 this
section 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:
Provided,
That the Tax Commissioner, in determining the wholesale price of
motor fuel for calendar year two thousand six pursuant to this
section, shall exclude any wholesale pricing information from the
period of August twenty-nine, two thousand five through October
thirty-first, two thousand five, and such determination shall not
exceed the average wholesale price of motor fuel as filed with the
Secretary of State on November thirtieth, two thousand four and
published in the West Virginia Register on December third, two thousand four. 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:
Provided, That
notice of the average wholesale price of motor fuel for the first
period shall be timely given if filed in the state register on the
effective date of this section.
(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.
(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.
NOTE: The purpose of this bill is to exclude wholesale
pricing of motor fuel between August 29, 2005, and October 31,
2005, in determining the average wholesale price of motor fuel for
calendar year 2006.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.