ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 420
(Senator Bowman, original sponsor)
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[Passed March 13, 2004; in effect ninety days from passage.]
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AN ACT to amend and reenact §11-14C-6, §11-14C-7, §11-14C-9,
§11-14C-13, §11-14C-20, §11-14C-22, §11-14C-24, §11-14C-25,
§11-14C-26, §11-14C-29, §11-14C-30, §11-14C-31, §11-14C-34,
§11-14C-37 and §11-14C-47 of the code of West Virginia, 1931,
as amended, all relating generally to motor fuels excise tax;
requiring tax on unaccounted-for motor fuel losses be
calculated using invoiced gallons; changing aircraft fuel to
aviation fuel to be consistent with definitions; repealing
five hundred gallon-minimum purchase by government entities to
qualify for exemption; clarifying bond requirements;
specifying election by supplier for motor fuel exported to
another state; requiring that all reports and returns, except
those filed by terminal operators, specify invoiced gallons;
requiring all reports and returns filed by terminal operators
specify gross and net gallons; requiring use of machine-generated shipping documents and authorizing commissioner to
allow use of manually prepared shipping documents; requiring
use of diversion procedure if destination state changes prior
to transport leaving rack; correcting reference to section
requiring return information; authorizing refunds for motor
fuel used for agricultural purposes and clarifying time for
claiming refunds; correcting reference authorizing
inspections; and establishing a revolving fund for general
administration of taxes.
Be it enacted by the Legislature of West Virginia:
That §11-14C-6, §11-14C-7, §11-14C-9, §11-14C-13, §11-14C-20,
§11-14C-22, §11-14C-24, §11-14C-25, §11-14C-26, §11-14C-29,
§11-14C-30, §11-14C-31, §11-14C-34, §11-14C-37 and §11-14C-47 of
the code of West Virginia, 1931, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 14C. MOTOR FUELS EXCISE TAX.
§11-14C-6. Point of imposition of motor fuels tax.
(a) The tax levied pursuant to section five of this article is
imposed at the time motor fuel is imported into this state, other
than by a bulk transfer, is measured by invoiced gallons received
outside this state at a refinery, terminal or bulk plant for
delivery to a destination in this state and is payable by the person importing the motor fuel unless otherwise specified in this
section.
(b) Except as provided in subsection (a) of this section, the
tax levied pursuant to section five of this article is measured by
invoiced gallons of motor fuel removed, other than by a bulk
transfer:
(1) From the bulk transfer/terminal system within this state;
(2) From the bulk transfer/terminal system outside this state
for delivery to a location in this state as represented on the
shipping papers: Provided, That the supplier imports the motor fuel
for the account of the supplier; and
(3) Upon sale or transfer in a terminal or refinery in this
state to any person not holding a supplier's license and payable by
the person selling or transferring the motor fuel.
(c) The tax levied pursuant to section five of this article
upon motor fuel removed from a refinery or terminal in this state
shall be collected by the supplier, as shown in the records of the
terminal operator, acting as trustee, from the person removing the
motor fuel from the facility.
(d) The tax levied pursuant to section five of this article
shall not apply to motor fuel imported into this state in the motor
fuel supply tank or tanks of a motor vehicle: Provided, That the person owning or operating as a motor carrier is not relieved of
any taxes imposed by article fourteen-a of this chapter.
(e) The tax imposed pursuant to section five of this article
at the point that blended motor fuel is made in West Virginia
outside the bulk transfer/terminal system is payable by the
blender. The number of gallons of blended motor fuel on which the
tax is payable is the difference, if any, between the number of
invoiced gallons of blended motor fuel made and the number of
invoiced gallons of previously taxed motor fuel used to make the
blended motor fuel.
(f) The terminal operator of a terminal in this state is
jointly and severally liable with the supplier for the tax levied
pursuant to section five of this article and shall remit payment to
this state at the same time and on the same basis as a supplier
under section twenty-two of this article upon:
(1) The removal of motor fuel from the terminal on account of
any supplier who is not licensed in this state: Provided, That the
terminal operator is relieved of liability if the terminal operator
establishes all of the following:
(A) The terminal operator has a valid terminal operator's
license issued for the facility from which the motor fuel is
withdrawn;
(B) The terminal operator has a copy of a valid license from
the supplier as required by the commissioner; and
(C) The terminal operator has no reason to believe that any
information is false; or
(2) The removal of motor fuel that is not dyed and marked in
accordance with internal revenue service requirements, if the
terminal operator provides any person with any bill of lading,
shipping paper or similar document indicating that the motor fuel
is dyed and marked in accordance with the internal revenue service
requirements.
§11-14C-7. Tax on unaccounted-for motor fuel losses; liability.
(a) There is hereby annually levied a tax at the rate
specified by section five of this article on taxable unaccounted-
for motor fuel losses at a terminal in this state. "Taxable
unaccounted-for motor fuel losses" means the number of gallons of
unaccounted-for motor fuel losses that exceed one half of one
percent of the number of invoiced gallons removed from the terminal
during the year by a bulk transfer or at the terminal rack.
"Unaccounted-for motor fuel losses" means the difference between:
(1) The amount of motor fuel in inventory at the terminal at the
beginning of the year plus the amount of motor fuel received by the
terminal during the year; and (2) the amount of motor fuel in
inventory at the terminal at the end of the year plus the amount of motor fuel removed from the terminal during the year. Accounted-
for motor fuel losses which have been approved by the commissioner
or motor fuel losses constituting part of a transmix shall not
constitute unaccounted-for motor fuel losses.
(b) The terminal operator whose motor fuel is unaccounted for
is liable for the tax levied by this section. Motor fuel received
by a terminal operator and not shown on an informational return
filed by the terminal operator with the commissioner as having been
removed from the terminal is presumed to be unaccounted-for motor
fuel losses. A terminal operator may rebut this presumption by
establishing that motor fuel received at a terminal, but not shown
on an informational return as having been removed from the
terminal, was an accounted-for loss or constitutes part of a
transmix.
§11-14C-9. Exemptions from tax; claiming refunds of tax.
(a) Per se exemptions for flat rate. -- 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 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 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 variable component. -- 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 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 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 flat rate. -- Any person having
a right or claim to any of the following exemptions to the flat
rate 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;
(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 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 variable rate. -- Any of the
following persons may claim an exemption to the variable rate 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;
(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 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 not apply to sales of motor
fuel under this article.
§11-14C-13. Bond requirements.
(a) There shall be filed with an application for a license
required by section eleven of this article either a cash bond or a
continuous surety bond in the amount or amounts specified in this
section: Provided, That if a person has filed applications for
licenses for more than one activity, the commissioner may combine
the amount of the cash bond or continuous surety bond required for
each licensed activity into one amount that shall be no less than
the largest amount required for any of those activities for which
the license applications are filed: Provided, however, That if a
continuous surety bond is filed, an annual notice of renewal shall
be filed thereafter: Provided further, That if the continuous
surety bond includes the requirements that the commissioner is to
be notified of cancellation at least sixty days prior to the
continuous surety bond being canceled, an annual notice of renewal
is not required. The bond, whether a cash bond or a continuous
surety bond, shall be conditioned upon compliance with the
requirements of this article, be payable to this state, and be in
the form required by the commissioner. The amount of the bond is
as follows:
(1) For a supplier license, the amount shall be a minimum of
one hundred thousand dollars or an amount equal to three months'
tax liability, whichever is greater: Provided, That the amount
shall not exceed two million dollars: Provided, however, That when required by the commissioner to file a cash bond or a continuous
surety bond in an additional amount, the licensee shall comply with
the commissioner's notification within thirty days after receiving
that notification;
(2) For a permissive supplier license, the amount shall be a
minimum of one hundred thousand dollars or an amount equal to three
months' tax liability, whichever is greater: Provided, That the
amount shall not exceed two million dollars: Provided, however,
That when required by the commissioner to file a cash bond or a
continuous surety bond in an additional amount, the licensee shall
comply with the commissioner's notification within thirty days
after receiving that notification;
(3) For a terminal operator license, the amount shall be a
minimum of one hundred thousand dollars or an amount equal to three
months' tax liability, whichever is greater: Provided, That the
amount shall not exceed two million dollars: Provided, however,
That when required by the commissioner to file a cash bond or a
continuous surety bond in an additional amount, the licensee shall
comply with the commissioner's notification within thirty days
after receiving that notification;
(4) For an importer license for a person, other than a
supplier, that imports by transport vehicle or another means of
transfer outside the bulk transfer/terminal system motor fuel removed from a terminal located in another state in which: (A) The
state from which the motor fuel is imported does not require the
seller of the motor fuel to collect a motor fuel excise tax on the
removal either at that state's rate or the rate of the destination
state; and (B) the seller of the motor fuel is not a permissive
supplier, the amount shall be a minimum of one hundred thousand
dollars or an amount equal to three months' tax liability,
whichever is greater: Provided, That the amount shall not exceed
two million dollars: Provided, however, That when required by the
commissioner to file a cash bond or a continuous surety bond in an
additional amount, the licensee shall comply with the
commissioner's notification within thirty days after receiving that
notification;
(5) For an importer license for a person that imports by
transport vehicle or another means outside the bulk
transfer/terminal system motor fuel removed from a terminal located
in another state in which: (A) The state from which the motor fuel
is imported requires the seller of the motor fuel to collect a
motor fuel excise tax on the removal either at that state's rate or
the rate of the destination state; or (B) the seller of the motor
fuel is a permissive supplier, the amount shall be a minimum of two
thousand dollars or an amount equal to three months' tax liability,
whichever is greater: Provided, That the amount shall not exceed three hundred thousand dollars: Provided, however, That when
required by the commissioner to file a cash bond or a continuous
surety bond in an additional amount, the licensee shall comply with
the commissioner's notification within thirty days after receiving
that notification;
(6) For a license as both a distributor and an importer as
described in subdivision (4) of this subsection, the amount shall
be a minimum of one hundred thousand dollars or an amount equal to
three months' tax liability, whichever is greater: Provided, That
the amount shall not exceed two million dollars: Provided, however,
That when required by the commissioner to file a cash bond or a
continuous surety bond in an additional amount, the licensee shall
comply with the commissioner's notification within thirty days
after receiving that notification;
(7) For a license as both a distributor and an importer as
described in subdivision (5) of this subsection, the amount shall
be a minimum of two thousand dollars or an amount equal to three
months' tax liability, whichever is greater: Provided, That the
amount shall not exceed three hundred thousand dollars: Provided,
however, That when required by the commissioner to file a cash bond
or a continuous surety bond in an additional amount, the licensee
shall comply with the commissioner's notification within thirty
days after receiving that notification;
(8) For an exporter license, the amount shall be a minimum of
two thousand dollars or an amount equal to three months' tax
liability, whichever is greater: Provided, That the amount shall
not exceed three hundred thousand dollars: Provided, however, That
when required by the commissioner to file a cash bond or a
continuous surety bond in an additional amount, the licensee shall
comply with the commissioner's notification within thirty days
after receiving that notification;
(9) For a blender license, the amount shall be a minimum of
two thousand dollars or an amount equal to three months' tax
liability, whichever is greater: Provided, That the amount shall
not exceed three hundred thousand dollars: Provided, however, That
when required by the commissioner to file a cash bond or a
continuous surety bond in an additional amount, the licensee shall
comply with the commissioner's notification within thirty days
after receiving that notification;
(10) For a distributor license, the amount shall be a minimum
of two thousand dollars or an amount equal to three months' tax
liability, whichever is greater: Provided, That the amount shall
not exceed three hundred thousand dollars: Provided, however, That
when required by the commissioner to file a cash bond or a
continuous surety bond in an additional amount, the licensee shall comply with the commissioner's notification within thirty days
after receiving that notification;
(11) For a motor fuel transporter license, there shall be no
bond; and
(12) An applicant for a licensed activity listed under
subdivisions (1) through (10), inclusive, of this subsection may in
lieu of posting either the cash bond or continuous surety bond
required by this subsection provide proof of financial
responsibility acceptable to the commissioner: Provided, That the
proof of financial responsibility shall demonstrate the absence of
circumstances indicating risk with the collection of taxes from the
applicant: Provided, however, That the following shall constitute
proof of financial responsibility:
(A) Proof of five million dollars' net worth shall constitute
evidence of financial responsibility in lieu of posting the
required bond;
(B) Proof of two million five hundred thousand dollars' net
worth constitutes financial responsibility in lieu of posting fifty
percent of the required bond; and
(C) Proof of one million two hundred fifty thousand dollars'
net worth constitutes financial responsibility in lieu of posting
twenty-five percent of the required bond. Net worth is calculated
on a business, not individual basis.
(13) In lieu of providing either cash bond, a continuance
surety bond or proof of financial responsibility acceptable to the
commissioner, an applicant for a licensed activity listed under
this subsection that has established with the state tax division a
good filing record that is accurate, complete and timely for the
preceding eighteen months shall be granted a waiver of the
requirement to file either a cash bond or continuance surety bond:
Provided, That when a licensee that has been granted a waiver of
the requirement to file a bond violates a provision of this
article, the licensee shall file the applicable bond as stated in
this subsection.
(14) Any licensee who disagrees with the commissioner's
decision requiring new or additional security may seek a hearing by
filing a petition with the office of tax appeals in accordance with
the provisions of section nine, article ten-a of this chapter:
Provided, That the hearing shall be provided within thirty days
after receipt by the office of tax appeals of the petition for the
hearing.
(b) The surety must be authorized under article nineteen,
chapter thirty-three of this code to engage in business of
transacting surety insurance within this state. The cash bond and
the continuous surety bond are conditioned upon faithful compliance
with the provisions of this article, including the filing of the returns and payment of all tax prescribed by this article. The
cash bond and the continuous surety bond shall be approved by the
commissioner as to sufficiency and form and shall indemnify the
state against any loss arising from the failure of the taxpayer to
pay for any cause whatever the motor fuel excise tax levied by this
article.
(c) Any surety on a continuous surety bond furnished hereunder
shall be relieved, released and discharged from all liability
accruing on the bond after the expiration of sixty days from the
date the surety shall have lodged, by certified mail, with the
commissioner a written request to be discharged. Discharge from
the continuous surety bond shall not relieve, release or discharge
the surety from liability already accrued or which shall accrue
before the expiration of the sixty-day period. Whenever any surety
seeks discharge as herein provided, it is the duty of the principal
of the bond to supply the commissioner with another continuous
surety bond or a cash bond prior to the expiration of the original
bond. Failure to provide a new continuous surety bond or a cash
bond shall result in the commissioner canceling each license and
registration previously issued to the person.
(d) Any taxpayer that has furnished a cash bond hereunder
shall be relieved, released and discharged from all liability
accruing on the cash bond after the expiration of sixty days from the date the taxpayer shall have lodged, by certified mail, with
the commissioner a written request to be discharged and the amount
of the cash bond refunded: Provided, That the commissioner may
retain all or part of the cash bond until such time as the
commissioner may perform an audit of the taxpayer's business or
three years, whichever first occurs. Discharge from the cash bond
shall not relieve, release or discharge the taxpayer from liability
already accrued or which shall accrue before the expiration of the
sixty-day period. Whenever any taxpayer seeks discharge as herein
provided, it is the duty of the taxpayer to provide the
commissioner with another cash bond or a continuous surety bond
prior to the expiration of the original cash bond. Failure to
provide either a new cash bond or a continuous surety bond shall
result in the commissioner canceling each license and registration
previously issued to the taxpayer.
§11-14C-20. Remittance of tax to supplier or permissive supplier.
(a) Each licensed distributor and licensed importer shall
remit to the supplier or permissive supplier, as applicable, of the
motor fuel the tax levied by section five of this article and due
on motor fuel removed at a terminal rack: Provided, That at the
election of a licensed distributor or licensed importer, the
supplier or permissive supplier shall not require the licensed
distributor or licensed importer to pay tax levied by section five of this article until two days before the date the supplier or
permissive supplier is required to pay the tax to this state:
Provided, however, That an election under this subsection is
subject to the condition that remittances by the licensed
distributor or licensed importer of all tax due to the supplier or
permissive supplier shall be paid by electronic funds transfer two
days before the date of the remittance by the supplier or
permissive supplier to the commissioner. An election under this
subsection may be terminated by the supplier or permissive supplier
if the licensed distributor or licensed importer does not make
timely payments to the supplier or permissive supplier as required
by this subsection.
(b) A licensed exporter shall remit tax due on motor fuel
removed at a terminal rack to the supplier of the motor fuel. The
date by which an exporter shall remit tax is governed by the law of
the destination state of the exported motor fuel: Provided, That if
the laws of the destination state prohibit the collection of the
destination state's tax, the supplier may elect to either collect
the tax levied by section five of this article or, in lieu thereof,
take from the exporter documentation sufficient to establish: (i)
That the motor fuel was immediately exported to another state and
the name of that state; (ii) that the entire amount of motor fuel
exported was reported to the destination state and the tax imposed on the motor fuel by the destination state was paid by the
exporter; (iii) the name and address of the person to which the
motor fuel was sold and the quantity of motor fuel sold to that
person; and (iv) that the exporter shall pay the tax levied by
section five of this article if the foregoing documentation is not
provided: Provided, however, That until such time as either the tax
imposed by this state is paid, the tax imposed by the destination
state is paid or the motor fuel is sold in a transaction not
subject to tax in the destination state, both the supplier and the
exporter shall be jointly liable for the tax levied by section five
of this article.
(c) All tax payments received by a supplier or permissive
supplier shall be held in trust by the supplier or permissive
supplier until the supplier or permissive supplier remits the tax
payment to this state or to another state and the supplier or
permissive supplier shall constitute the trustee for the tax
payments.
(d) The license of a licensed distributor, exporter or
importer who fails to pay the full amount of tax required by this
article is subject to cancellation.
§11-14C-22. Information required on return filed by supplier or
permissive supplier.
The return of each supplier and permissive supplier shall list
all of the following information and any other information required
by the commissioner:
(a) The number of invoiced gallons of tax-paid motor fuel
received by the supplier or permissive supplier during the month,
sorted by type of motor fuel, seller, point of origin, destination
state and carrier or motor fuel transporter;
(b) The number of invoiced gallons of motor fuel removed at a
terminal rack during the month from the account of the supplier,
sorted by type of motor fuel, person receiving the motor fuel,
terminal code and carrier or motor fuel transporter;
(c) The number of invoiced gallons of motor fuel removed
during the month for export, sorted by type of motor fuel, person
receiving the motor fuel, terminal code, destination state and
carrier or motor fuel transporter; and
(d) The number of invoiced gallons of motor fuel removed
during the month from a terminal located in another state for
conveyance to West Virginia, as indicated on the shipping document
for the motor fuel, sorted by type of motor fuel, person receiving
the motor fuel, terminal code and carrier or motor fuel
transporter.
§11-14C-24. Duties of supplier or permissive supplier as trustee.
(a) All tax payments due to this state that are received by a
supplier or permissive supplier shall be held by the supplier or
permissive supplier as trustee in trust for this state and the
supplier or permissive supplier has a fiduciary duty to remit to
the commissioner the amount of tax received. A supplier or
permissive supplier is liable for the taxes paid to it.
(b) A supplier or permissive supplier shall notify a licensed
distributor, licensed exporter or licensed importer who received
motor fuel from the supplier or permissive supplier during a
reporting period of the number of invoiced gallons received. The
supplier or permissive supplier shall give this notice after the
end of each reporting period and before the licensee is required to
remit the amount of tax due on the motor fuel.
(c) A supplier or permissive supplier of motor fuel at a
terminal shall notify the commissioner within the time period
established by the commissioner of any licensed distributors,
licensed exporters or licensed importers who did not pay the tax
due when the supplier or permissive supplier filed its return. The
notice shall be transmitted to the commissioner in the form
required by the commissioner.
(d) A supplier or permissive supplier who receives a payment
of tax shall not apply the payment of tax to a debt that the person making the payment owes for motor fuel purchased from the supplier
or permissive supplier.
§11-14C-25. Returns and discounts of importers.
(a) The monthly return of an importer shall contain the
following information for the period covered by the return and any
other information required by the commissioner:
(1) The number of invoiced gallons of imported motor fuel
acquired from a supplier or permissive supplier who collected the
tax due this state on the motor fuel;
(2) The number of invoiced gallons of imported motor fuel
acquired from a person who did not collect the tax due this state
on the motor fuel, listed by type of motor fuel, source state,
person and terminal;
(3) The number of invoiced gallons of imported motor fuel
acquired from a bulk plant outside this state, listed by bulk plant
name, address and type of motor fuel; and
(4) The import confirmation number, as may be required under
section thirty-five of this article, of each import that is
reported under subdivision (2) or (3) of this subsection, as
applicable, and was removed from a terminal or bulk plant.
(b) An importer that imports by transport vehicle or another
means of transfer outside the terminal transfer system motor fuel
removed from a terminal located in another state in which: (1) The state from which the motor fuel is imported does not require the
seller of the motor fuel to collect a motor fuel excise tax on the
removal either at that state's rate or the rate of the destination
state; and (2) the seller of the motor fuel is not a licensed
supplier or permissive supplier, who timely files a return with the
payment due, may deduct, from the amount of tax payable with the
return, an administrative discount of one tenth of one percent of
the amount of tax payable by the importer to this state not to
exceed five thousand dollars per month.
§11-14C-26. Informational returns of terminal operators.
(a) A terminal operator shall file with the commissioner a
monthly information return showing the amount of motor fuel
received and removed from the terminal during the month. The
return is due by the last day of the month following the month
covered by the return. The return shall contain the following
information and any other information required by the commissioner:
(1) The beginning and ending inventory which pertains to the
applicable reporting month;
(2) The number of gross and net gallons of motor fuel received
in inventory at the terminal during the month and each position
holder for the motor fuel;
(3) The number of gross and net gallons of motor fuel removed
from inventory at the terminal during the month and, for each removal, the position holder for the motor fuel and the destination
state of the motor fuel; and
(4) The number of gross and net gallons of motor fuel gained
or lost at the terminal during the month.
(b) The tax commissioner may accept the federal ExSTARS
terminal operator report provided to the internal revenue service
in lieu of the required state terminal operator report.
§11-14C-29. Identifying information required on return.
When a transaction with a person licensed under this article
is required to be reported on a return, the return must state the
licensee's name, address and, if available, license number and
telephone number as stated on the lists compiled by the
commissioner under section eighteen of this article.
§11-14C-30. Refund of taxes erroneously collected, etc.; refund
for gallonage exported or lost through casualty or
evaporation; change of rate; petition for refund.
(a) The commissioner is hereby authorized to refund from the
funds collected under the provisions of this article any tax,
interest, additions to tax or penalties which have been erroneously
collected from any person.
(b) Any supplier, distributor, producer, retail dealer,
exporter or importer, while the owner of motor fuel in this state,
that loses any invoiced gallons of motor fuel through fire, lightning, breakage, flood or other casualty, which gallons having
been previously included in the tax by or for that person, may
claim a refund of a sum equal to the amount of the flat rate of the
tax levied by section five of this article paid upon the invoiced
gallons lost.
(c) Any dealer as defined in section two, article eleven-c,
chapter forty-seven of the code, and any bulk plant in this state
that purchases or receives motor fuel in this state upon which the
tax levied by section five of this article has been paid, is
entitled to an annual refund of the flat rate of the tax levied by
section five of this article for invoiced gallons lost through
evaporation: Provided, That only the owner of the bulk plant that
is also the owner of the fuel in the bulk plant may claim this
refund for invoiced gallons lost through evaporation. The refund
is computed at the flat rate of tax levied per gallon under this
article on all invoiced gallons of motor fuel actually lost due to
evaporation, not exceeding one half of one percent of the adjusted
total accountable gallons, computed as determined by the
commissioner.
(d) Every supplier, distributor or producer, retail dealer,
exporter or importer is entitled to a refund of the flat rate of
the tax levied by section five of this article from this state of
the amount resulting from a change of rate decreasing the tax under the provisions of this article on motor fuel on hand and in
inventory on the effective date of the rate change, which motor
fuel has been included in any previous computation by which the tax
levied by this article has been paid.
§11-14C-31. Claiming refunds.
(a) Any person seeking a refund pursuant to subsection (c),
section nine of this article shall present to the commissioner a
petition accompanied by the original or duplicate original sales
slip or invoice 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.
(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. 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
the tax was erroneously or illegally paid or the gallons were
exported or lost by casualty or in which 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), section nine
of this article shall be filed with the commissioner within six
months from the month of purchase or delivery of the motor fuel:
Provided, That any application for refund made under authority of
subdivision(15), of said subsection 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.
§11-14C-34. Shipping documents; transportation of motor fuel by
barge, watercraft, railroad tank car or transport
truck; civil penalty.
(a) A person shall not transport in this state any motor fuel
by barge, watercraft, railroad tank car or transport vehicle unless
the person has a machine-generated shipping document, including
applicable multiple copies thereof, for the motor fuel that
complies with this section: Provided, That in the event a terminal
operator or operator of a bulk plant does not have installed on the
first day of January, two thousand four, an automated machine that
will print machine-generated shipping documents, the commissioner
may authorize the terminal operator or operator of a bulk plant to
issue manually prepared shipping documents: Provided, however, That
in the event of an extraordinary unforeseen circumstance, including
an act of God, that temporarily interferes with the ability to
issue an automated machine-generated shipping document, a manually
prepared shipping document that contains all of the information
required by subsection (b) of this section shall be substituted for
the machine-generated shipping document. A terminal operator or
operator of a bulk plant shall give a shipping document to the
person who operates the barge, watercraft, railroad tank car or
transport vehicle into which motor fuel is loaded at the terminal
rack or bulk plant rack.
(b) The shipping document issued by the terminal operator or
operator of a bulk plant shall contain the following information
and any other information required by the commissioner:
(1) Identification, including address, of the terminal or bulk
plant from which the motor fuel was received;
(2) Date the motor fuel was loaded;
(3) Invoiced gallons loaded;
(4) Destination state of the motor fuel as represented by the
purchaser of the motor fuel or the purchaser's agent;
(5) In the case of aviation jet fuel, the shipping document
shall be marked with the phrase "Aviation Jet Fuel, Not for On-road
Use" or a similar phrase;
(6) In the case of dyed diesel fuel, the shipping document
shall be marked with the phrase "Dyed Diesel Fuel, Nontaxable Use
Only, Penalty for Taxable Use" or a similar phrase; and
(7) If the document is issued by a terminal operator, the
invoiced gallons loaded and a statement indicating the name of the
supplier that is responsible for the tax due on the motor fuel.
(c) A terminal operator or bulk plant operator may rely on the
representation made by the purchaser of motor fuel or the
purchaser's agent concerning the destination state of the motor
fuel. In the event that either the terminal operator, bulk plant
operator, purchaser or transporter determines prior to the shipment
of motor fuel leaving the terminal or bulk plant that the
destination state indicated on the shipping document is incorrect,
the diversion procedure provided in subdivision (3), subsection (d) of this section shall be used to obtain authorization to deliver
the motor fuel to a different state. A purchaser is liable for any
tax due as a result of the purchaser's diversion of motor fuel from
the represented destination state.
(d) A person to whom a shipping document was issued shall:
(1) Carry the shipping document in the means of conveyance for
which it was issued when transporting the motor fuel described;
(2) Show the shipping document upon request to any law-
enforcement officer, representative of the commissioner and any
other authorized individual when transporting the motor fuel
described;
(3) Deliver motor fuel to the destination state printed on the
shipping document unless the person:
(A) Notifies the commissioner before transporting the motor
fuel into a state other than the printed destination state that the
person has received instructions after the shipping document was
issued to deliver the motor fuel to a different destination state;
(B) Receives from the commissioner a confirmation number
authorizing the diversion; and
(C) Writes on the shipping document the change in destination
state and the confirmation number for the diversion; and
(4) Gives a copy of the shipping document to the person to
whom the motor fuel is delivered.
(e) The person to whom motor fuel is delivered by barge,
watercraft, railroad tank car or transport vehicle shall not accept
delivery of the motor fuel if the destination state shown on the
shipping document for the motor fuel is a state other than West
Virginia: Provided, That delivery may be accepted if the
destination state is other than West Virginia if the document
contains a diversion number authorized by the commissioner. The
person to whom the motor fuel is delivered shall examine the
shipping document to determine that West Virginia is the
destination state and shall retain a copy of the shipping document:
(1) At the place of business where the motor fuel was delivered for
ninety days following the date of delivery; and (2) at the place or
another place for at least three years following the date of
delivery. The person who accepts delivery of motor fuel in
violation of this subsection and any person liable for the tax on
the motor fuel pursuant to section five of this article is jointly
and severally liable for any tax due on the motor fuel.
(f) Any person who transports motor fuel in a barge,
watercraft, railroad tank car or transport vehicle without a
shipping document or with a false or an incomplete shipping
document, or delivers motor fuel to a destination state other than
the destination state shown on the shipping document, is subject to
the following civil penalty.
(1) If the motor fuel is transported in a barge, watercraft or
transport vehicle, the civil penalty shall be payable by the person
in whose name the means of conveyance is registered.
(2) If the motor fuel is transported in a railroad tank car,
the civil penalty shall be payable by the person responsible for
shipping the motor fuel in the railroad tank car.
(3) The amount of the civil penalty for a first violation is
five thousand dollars.
(4) The amount of the civil penalty for each subsequent
violation is ten thousand dollars.
(5) Civil penalties prescribed under this section are
assessed, collected and paid in the same manner as the motor fuel
excise tax imposed by this article.
§11-14C-37. Refusal to allow inspection or taking of fuel sample;
civil penalty.
(a) Any person who refuses to allow an inspection authorized
by section forty-five of this article or to allow the taking of a
fuel sample authorized by said section is subject to a civil
penalty of five thousand dollars for each refusal. If the refusal
is for a sample to be taken from a vehicle, the person operating
the vehicle and the owner of the vehicle are jointly and severally
liable for payment of the civil penalty. If the refusal is for a
sample to be taken from any other storage tank or container, the owner of the storage tank or container and the owner of the motor
fuel in the storage tank or container, if different from the owner
of the storage tank or container, are jointly and severally liable
for payment of the civil penalty.
(b) Civil penalties prescribed under this section shall be
assessed, collected and paid in the same manner as the motor fuel
tax.
§11-14C-47. Disposition of tax collected.
(a) There is hereby created and established in the state
treasury a special revolving fund to be known and designated as the
"motor fuel general tax administration fund". The commissioner is
authorized to retain one half of one percent of the tax collected
pursuant to the provisions of this article: Provided, That in any
fiscal year in which the tax collected pursuant to the provisions
of this article exceed three hundred million dollars, the
commissioner is authorized to retain an additional one percent of
the tax in excess of the three hundred million dollars that is
collected. The amounts retained by the commissioner under this
subsection shall be deposited in the motor fuel general tax
administration fund and may be expended for the general
administration of taxes imposed by this chapter.
(b) All remaining tax collected under the provisions of this
article after deducting the amount of any refunds lawfully paid shall be paid into the state road fund and used only for the
purpose of construction, reconstruction, maintenance and repair of
highways, matching of federal moneys available for highway purposes
and payment of the interest and sinking fund obligations on state
bonds issued for highway purposes.