Senate Bill No. 667
(By Senators Helmick and Plymale)
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[Introduced March 21, 2005; referred to the Committee
on Finance.]
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A BILL to amend and reenact §11-14C-9 and §11-14C-31 of the Code of
West Virginia, 1931, as amended, all relating generally to
motor fuel excise tax; clarifying exemption for motor fuel
sold to United States, its agencies and instrumentalities;
providing procedure for sellers of tax-paid fuel to the United
States, its agencies and instrumentalities to obtain refund of
tax on such fuel; changing time for filing certain claims for
refund; and making technical corrections.
Be it enacted by the Legislature of West Virginia:
That §11-14C-9 and §11-14C-31 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 14C. MOTOR FUEL EXCISE TAX.
§11-14C-9. Exemptions from tax; claiming refunds of tax.
(a)
Per se exemptions for from flat rate component of tax. --
Sales of motor fuel to the following, or as otherwise stated in this subsection, are exempt per se from the flat rate of the tax
levied by section five of this article and the flat rate
shall may
not be paid at the rack:
(1) All motor fuel exported from this state to any other state
or nation:
Provided, That the supplier collects and remits to the
destination state or nation the appropriate amount of tax due on
the motor fuel transported to that state or nation:
Provided,
however, That this exemption
shall does not apply to any motor fuel
which is transported and delivered outside this state in the motor
fuel supply tank of a highway vehicle;
(2) Sales of aviation fuel;
(3)
All Sales of dyed special fuel; and
(4) Sales of propane.
(b)
Per se exemptions for from variable component of tax. --
Sales of motor fuel to the following are exempt per se from the
variable component of the tax levied by section five of this
article and the variable component
shall may not be paid at the
rack:
All motor fuel exported from this state to any other state or
nation:
Provided, That the supplier collects and remits to the
destination state or nation the appropriate amount of tax due on
the motor fuel transported to that state or nation:
Provided,
however, That this exemption
shall does not apply to any motor fuel
which is transported and delivered outside this state in the motor
fuel supply tank of a highway vehicle.
(c)
Refundable exemptions for from flat rate component of tax.
-- Any person having a right or claim to any of the following
exemptions
to from the flat rate
component of the tax levied by
section five of this article
that is set forth in this subsection
shall first pay the tax levied by this article and then apply to
the Tax Commissioner for a refund:
(1) The United States or any agency thereof:
Provided, That
if the United States government, or any agency or instrumentality
thereof, does not pay the seller the tax imposed by section five of
this article on any purchase of motor fuel, the person selling tax
previously paid motor fuel to the United States government, or its
agencies or instrumentalities, may then claim a refund of the flat
rate component of tax imposed by said section on those sales;
(2) Any county government or unit or agency thereof;
(3) Any municipal government or any agency thereof;
(4) Any county boards of education;
(5) Any urban mass transportation authority created pursuant
to the provisions of article twenty-seven, chapter eight of this
code;
(6) Any municipal, county, state or federal civil defense or
emergency service program pursuant to a government contract for use
in conjunction therewith, or to any person on whom is imposed a
requirement to maintain an inventory of motor fuel for the purpose
of the program:
Provided, That motor fueling facilities used for
these purposes are not capable of fueling motor vehicles and the person in charge of the program has in his or her possession a
letter of authority from the Tax Commissioner certifying his or her
right to the exemption:
Provided, however, That in order for this
exemption to apply, motor fuel sold under this subdivision and
subdivisions (1) through (5), inclusive, of this subsection shall
be used in vehicles or equipment owned and operated by the
respective government entity or government agency or authority;
(7) All invoiced gallons of motor fuel purchased by a licensed
exporter and subsequently exported from this state to any other
state or nation:
Provided, That the exporter has paid the
applicable motor fuel tax to the destination state or nation prior
to claiming this refund or the exporter has reported to the
destination state or nation that the motor fuel was sold in a
transaction not subject to tax in that state or nation:
Provided,
however, That a refund
shall may not be granted on any motor fuel
which is transported and delivered outside this state in the motor
fuel supply tank of a highway vehicle;
(8) All gallons of motor fuel used and consumed in stationary
off-highway turbine engines;
(9) All gallons of special fuel used for heating any public or
private dwelling, building or other premises;
(10) All gallons of special fuel used for boilers;
(11) All gallons of motor fuel used as a dry cleaning solvent
or commercial or industrial solvent;
(12) All gallons of motor fuel used as lubricants, ingredients or components of any manufactured product or compound;
(13) All gallons of motor fuel sold for use or used as a motor
fuel for commercial watercraft;
(14) All gallons of special fuel sold for use or consumed in
railroad diesel locomotives;
(15) All gallons of motor fuel purchased in quantities of
twenty-five gallons or more for use as a motor fuel for internal
combustion engines not operated upon highways of this state;
(16) All gallons of motor fuel purchased in quantities of
twenty-five gallons or more and used to power a power take-off unit
on a motor vehicle. When a motor vehicle with auxiliary equipment
uses motor fuel and there is no auxiliary motor for the equipment
or separate tank for a motor, the person claiming the refund may
present to the Tax Commissioner a statement of his or her claim and
is allowed a refund for motor fuel used in operating a power
take-off unit on a cement mixer truck or garbage truck equal to
twenty-five percent of the tax levied by this article paid on all
motor fuel used in such a truck;
(17) Motor fuel used by any person regularly operating any
vehicle under a certificate of public convenience and necessity or
under a contract carrier permit for transportation of persons when
purchased in an amount of twenty-five gallons or more:
Provided,
That the amount refunded is equal to six cents per gallon:
Provided, however, That the gallons of motor fuel
shall have been
consumed in the operation of urban and suburban bus lines and the majority of passengers use the bus for traveling a distance not
exceeding forty miles, measured one way, on the same day between
their places of abode and their places of work, shopping areas or
schools; and
(18) All gallons of motor fuel that are not otherwise exempt
under subdivisions (1) through (6), inclusive, of this subsection
and that are purchased and used by any bona fide volunteer fire
department, nonprofit ambulance service or emergency rescue service
that has been certified by the municipality or county wherein the
bona fide volunteer fire department, nonprofit ambulance service or
emergency rescue service is located.
(d)
Refundable exemptions for from variable rate component of
tax. -- Any of the following persons may claim an exemption
to from
the variable rate
component of the tax levied by section five of
this article on the purchase and use of motor fuel by first paying
the tax levied by this article and then applying to the Tax
Commissioner for a refund.
(1) The United States or any agency thereof:
Provided, That
if the United States government, or any agency or instrumentality
thereof, does not pay the seller the tax imposed by section five of
this article on any purchase of tax previously paid motor fuel, the
person selling the motor fuel to the United States government, or
its agencies or instrumentalities, may then claim a refund of the
variable rate of tax imposed by said section on those sales;
(2) This state and its institutions;
(3) Any county government or unit or agency thereof;
(4) Any municipal government or any agency thereof;
(5) Any county boards of education;
(6) Any urban mass transportation authority created pursuant
to the provisions of article twenty-seven, chapter eight of this
code;
(7) Any municipal, county, state or federal civil defense or
emergency service program pursuant to a government contract for use
in conjunction therewith, or to any person on whom is imposed a
requirement to maintain an inventory of motor fuel for the purpose
of the program:
Provided, That fueling facilities used for these
purposes are not capable of fueling motor vehicles and the person
in charge of the program has in his or her possession a letter of
authority from the Tax Commissioner certifying his or her right to
the exemption;
(8) Any bona fide volunteer fire department, nonprofit
ambulance service or emergency rescue service that has been
certified by the municipality or county wherein the bona fide
volunteer fire department, nonprofit ambulance service or emergency
rescue service is located; or
(9) All invoiced gallons of motor fuel purchased by a licensed
exporter and subsequently exported from this state to any other
state or nation:
Provided, That the exporter has paid the
applicable motor fuel tax to the destination state or nation prior
to claiming this refund:
Provided, however, That a refund
shall may not be granted on any motor fuel which is transported and
delivered outside this state in the motor fuel supply tank of a
highway vehicle.
(e) The provision in subdivision (9), subsection (a), section
nine, article fifteen of this chapter that exempts as a sale for
resale those sales of gasoline and special fuel by a distributor or
importer to another distributor
shall does not apply to sales of
motor fuel under this article.
§11-14C-31. Claiming refunds.
(a) Any person seeking a refund pursuant to subsection (c)
or
(d), section nine of this article shall present to the Commissioner
a petition for refund
in the form required by the Commissioner and
provide the information required by the Commissioner. accompanied
by The
Tax Commissioner may require the petitioner to provide the
original or duplicate original sales
slip slips or
invoice invoices
from the distributor or producer or retail dealer, as the case may
be, showing the amount of the purchases, together with evidence of
payment thereof, and a statement stating how the motor fuel was
used:
Provided, That sales slips or invoices marked "duplicate"
are not acceptable:
Provided, however, That certified copies of
sales slips or invoices are acceptable:
Provided further, That
copies of sales slips and invoices may be used with any application
for refund made under authority of subdivision (15), subsection
(c), section nine of this article when the motor fuel is used to
operate tractors and gas engines or threshing machines for agricultural purposes:
And provided further, That a refund claim
made under the authority of subdivision (1), subsection (c),
section nine of this article and a refund claim made under the
authority of subdivision (1), subsection (d) of said section shall
be accompanied by such verification as prescribed by the tax
commissioner: And provided further, That billing statements and
electronic invoices are acceptable in lieu of original invoices at
the discretion of the Tax Commissioner: And provided further, That
the person claiming a refund under subsection (c) or (d) of said
section shall retain for at least three years following the
postmark date of the application for refund a copy of the invoices,
sales slips and billing statements for which the refund was
claimed.
(b) Any person claiming a refund pursuant to section thirty of
this article shall file a petition in writing with the
Commissioner. The petition shall be in the form and with
supporting records as required by the Commissioner and made under
the penalty of perjury.
(c) The right to receive any refund under the provisions of
this section is not assignable and any assignment thereof is void
and of no effect. No payment of any refund may be made to any
person other than the original person entitled
to claim the refund
except as otherwise expressly provided in this article. The
Commissioner shall cause a refund to be made under the authority of
this section only when the claim for refund is filed with the Commissioner within the following time periods:
(1) A petition for refund under section thirty of this
article, other than for evaporation loss, shall be filed with the
commissioner within three years from the end of the month in which:
(A) The tax was erroneously or illegally paid;
or (B) the gallons
were exported or lost by casualty; or
in which (C) a change of rate
took effect;
(2) A petition for refund under section thirty of this article
for evaporation loss shall be filed within three years from the end
of the year in which the evaporation occurred;
(3) A petition for refund under subsection (c)
and or (d),
section nine of this article shall be filed with the commissioner
within six months from the month on or before the last day of
January, April, July and October for purchases of motor fuel during
the immediately preceding calendar quarter: of purchase or
delivery of the motor fuel Provided, That any application for
refund made under authority of subdivision (15), of subsection
(c)
of said section when the motor fuel is used to operate tractors and
gas engines or threshing machines for agricultural purposes shall
be filed within twelve months from the month of purchase or
delivery of the motor fuel:
Provided, however, That all persons
authorized to claim a refundable exemption under the authority of
subdivisions (1) through (6), inclusive, subsection (c), section
nine of this article and subdivisions (1) through (6), inclusive,
subsection (d) of said section shall do so no later than the thirty-first day of August for the purchases of motor fuel made
during the preceding fiscal year ending the thirtieth day of June.
(d) Any petition for a refund not timely filed is not
construed to be or constitute a moral obligation of the state of
West Virginia for payment. Every petition for refund is subject to
the provisions of section fourteen, article ten of this chapter.
(e) The Commissioner may make any investigation considered
necessary before refunding to a person the tax levied by section
five of this article. The Commissioner may also subject to audit
the records related to a refund of the tax levied by section five
of this article.
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(NOTE: The purpose of this bill is to authorize those who
sell or deliver motor fuel to the federal government, or one of its
agencies, and to whom the federal government refuses to pay the
Motor Fuel Excise Tax to claim a refund of the tax, and to change
the time for claiming a refund to a quarterly basis.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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