Senate Bill No. 680
(By Senators Plymale and McCabe)
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[Introduced March 23, 2009;
referred to the Committee on Finance.]
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A BILL to repeal §11-14C-48 of the Code of West Virginia, 1931, as
amended; and to amend and reenact §11-14C-5 of said code,
relating to eliminating the Motor Fuel Excise Tax Shortfall
Reserve Fund; and establishing the average wholesale price of
motor fuel for the 2010 calendar year for purposes of
calculating the rate of motor fuel excise tax.
Be it enacted by the Legislature of West Virginia:
That §11-14C-48 of the Code of West Virginia, 1931, as
amended, be repealed; and that §11-14C-5 of the Code of West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 This motor fuel
excise tax shall take effect January 1, 2004.
Provided, however,
That However, on and after August 1, 2013, the flat rate portion of
the motor fuel excise tax shall be fifteen and one-half cents per
gallon.
Provided further, That In addition, the variable component
shall be equal to five percent of the average wholesale price of
the motor fuel.
And provided further, That Also, the average
wholesale price shall be no less than $.97 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 January 1 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 July 1 through October
31. Notification of the average wholesale price of motor fuel
shall be given by the Tax Commissioner at least thirty days in
advance of each January 1 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 $.97 per
gallon of motor fuel.
However, for calendar year 2010, the average
wholesale price of motor fuel shall remain the same as the average
wholesale price of motor fuel for calendar year 2009 as determined
pursuant to the notice filed by the Tax Commissioner with the
Secretary of State on November 21, 2007, and published in the State
Register on November 30, 2007.
(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 floor stocks tax on motor fuel
held in storage outside the bulk transfer/terminal system as of the
close of the business day preceding January 1, 2004, 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 floor
stocks tax is payable by the person in possession of the motor fuel
on January 1, 2004. The amount of the floor stocks 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 January 1, 2004.
(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 January 1, 2004, shall: (A) Take an
inventory at the close of the business day preceding January 1,
2004, to determine the gallons in storage for purposes of
determining the floor stocks tax; (B) report no later than January
31, 2004, the gallons on forms provided by the commissioner; and
(C) remit the tax levied under this section no later than June 1,
2004.
(2) In the event the tax due is paid to the commissioner on or
before January 31, 2004, 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
June 1, 2004, 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 floor stocks 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.
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(NOTE: The purpose of this bill is to freeze the variable
rate component of the motor fuel excise tax for the 2010 calendar
year at the current rate and to eliminate the article which created
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.)
FINANCE COMMITTEE AMENDMENT
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 680--A Bill to repeal §11-14C-48 of the
Code of West Virginia, 1931, as amended; and to amend and reenact
§11-14C-5, relating to eliminating the Motor Fuel Excise Tax
Shortfall Reserve Fund; and establishing the average wholesale
price of motor fuel for the 2010 calendar year for purposes of
calculating the rate of motor fuel excise tax.