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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 454
(By Senators Prezioso and Facemire)
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[Introduced March 6, 2013; referred to the Committee on
Transportation and Infrastructure; and then to the Committee on
Finance .]
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A BILL to amend and reenact §11-14C-2, §11-14C-5, §11-14C-9,
§11-14C-10, §11-14C-13 and §11-14C-19 of the Code of West
Virginia, 1931, as amended; to amend said code by adding
thereto a new section, designated §11-14C-6a; to amend and
reenact §11-15-18b of said code; and to amend and reenact
§11-15A-13a of said code, all relating to the taxation of
alternative fuel; defining terms; requiring the Tax
Commissioner to determine the gasoline gallon equivalent for
alternative fuels; imposing tax on motor fuel equivalent
gallons; specifying the point of imposition of tax on
alternative fuels not otherwise taxed at the point of
imposition; providing that propane used in a motor vehicle is
subject to the tax; requiring alternative-fuel bulk end users, providers of alternative fuels and retailers of alternative
fuels to be licensed; establishing bonding requirements for
alternative-fuel bulk end users, providers of alternative
fuels and retailers of alternative fuels; establishing due
dates for returns and payments of tax on alternative fuels;
and specifying effective dates for amendments.
Be it enacted by the Legislature of West Virginia:
That §11-14C-2, §11-14C-5, §11-14C-9, §11-14C-10, §11-14C-13
and §11-14C-19 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; that said code be amended by adding thereto
a new section, designated §11-14C-6a; that §11-15-18b of said code
be amended and reenacted; and that §11-15A-13a of said code be
amended and reenacted, all to read as follows:
ARTICLE 14C. MOTOR FUEL EXCISE TAX.
PART I. GENERAL PROVISIONS
§11-14C-2. Definitions.
As used in this article and unless the context requires
otherwise, the following terms have the meaning ascribed herein.
(1) "Agricultural purposes" means the activities of:
(A) Cultivating the soil, including the planting and
harvesting of crops, for the commercial production of food, fiber
and ornamental woodland products;
(B) Using land for breeding and management of farm livestock including dairy, apiary, equine or poultry husbandry; and
(C) Using land for the practice of horticulture including the
growing of Christmas trees, orchards and nursery stock. Provided,
That Agricultural purposes shall do not include commercial
forestry, growing of timber for commercial purposes or any other
activity that normally would not be included in subdivision (A),
(B) or (C) of this definition.
(2) "Aircraft" includes any airplane or helicopter.
(3) "Alcohol" means motor fuel grade ethanol or a mixture of
motor fuel-grade ethanol and methanol, excluding denaturant and
water that is a minimum of ninety-eight percent ethanol or methanol
by volume.
(4) "Alternative fuel" means a combustible gas or liquid that
is used or suitable for use as a motor fuel in an internal
combustion engine or motor to propel any form of vehicle, machine,
or mechanical contrivance and includes, but is not limited to,
products commonly known as butane, propane, compressed natural gas,
liquefied natural gas, liquefied petroleum gas, natural gas
hydrocarbons and derivatives, liquid hydrocarbons derived from
biomass, P-series fuels and hydrogen. For purposes of this article
electricity is not an alternative fuel.
(5) "Alternative fuel bulk end-user" means a person who maintains storage facilities for alternative fuel and uses part or
all of the stored fuel to operate a motor vehicle.
(6) "Alternative fuel commercial refueling infrastructure"
means property owned by a commercial establishment and used for
storing alternative fuels and for dispensing such alternative fuels
into the fuel tanks of vehicles owned by the same person or entity
that owns the alternative fuel commercial refueling infrastructure
or into the fuel tanks of privately owned vehicles or commercial
vehicles other than those owned by the same person or entity that
owns the alternative fuel commercial refueling infrastructure, or
any combination thereof. "Alternative fuel vehicle commercial
refueling infrastructure" includes, but is not limited to,
compression equipment, storage tanks and dispensing units for
alternative fuel at the point where the fuel is delivered:
Provided, That the property is not located on a private residence
or private home. "Alternative fuel commercial refueling
infrastructure" does not include any building, infrastructure,
equipment, apparatus, terminal or connections for servicing,
charging or providing electricity to plug-in hybrid electric
vehicles or electric vehicles. "Alternative fuel vehicle
commercial refueling infrastructure" includes alternative fuel
vehicle commercial refueling infrastructure property as described
in this subdivision which is owned by a lessor or landlord and leased to or rented to a lessee or tenant as part of a residence
for such lessee or tenant.
(7) "Alternative fuel home refueling infrastructure" means
property owned by a private individual for personal use that is
located at the individual's private residence or private home and
used for storing and dispensing alternative fuels into fuel tanks
of the property owner's motor vehicles. This includes, but is not
limited to, compression equipment, storage tanks and dispensing
units for alternative fuel at the point where the fuel is
delivered. For purposes of this article, "alternative fuel home
refueling infrastructure" does not include any building,
infrastructure, equipment, apparatus, terminal or connections for
servicing, charging or providing electricity to plug-in hybrid
electric vehicles or electric vehicles. "Alternative fuel home
refueling infrastructure" does not include alternative fuel vehicle
refueling infrastructure property owned by a lessor or landlord
which is leased to or rented to a lessee or tenant as part of a
residence for such lessee or tenant.
____(4) (8) "Article" or "this article" means article fourteen-c,
chapter eleven of this code.
(5) (9) "Assessment" means a written determination by the
commissioner of the amount of taxes owed by a taxpayer.
(6) (10) "Aviation fuel" means aviation gasoline or aviation
jet fuel.
(7) (11) "Aviation gasoline" means motor fuel designed for use
in the operation of aircraft other than jet aircraft and sold or
used for that purpose.
(8) (12) "Aviation jet fuel" means motor fuel designed for use
in the operation of jet or turbo-prop aircraft and sold or used for
that purpose.
(9) (13) "Biodiesel fuel" means any motor fuel or mixture of
motor fuels that is derived, in whole or in part, from agricultural
products or animal fats, or the wastes of such products or fats,
and is advertised as, offered for sale as, suitable for use or used
as motor fuel in an internal combustion engine.
(10) (14) "Blended fuel" means a mixture composed of gasoline
or diesel fuel and another liquid including, but not limited to,
gasoline blend stocks, gasohol, ethanol, methanol, fuel grade
alcohol, diesel fuel enhancers and resulting blends, other than a
de minimus amount of a product such as carburetor detergent or
oxidation inhibitor, that can be used as a motor fuel in a highway
vehicle.
(11) (15) "Blender" means a person who produces blended motor
fuel outside the bulk transfer/terminal system.
(12) (16) "Blending" means the mixing of one or more petroleum
products, with or without another product, regardless of the
original character of the product blended, if the product obtained
by the blending is capable of use in the generation of power for
the propulsion of a motor vehicle, an airplane or a marine vessel.
Blending does not include mixing that occurs in the process of
refining by the original refiner of crude petroleum or the blending
of products known as lubricating oil in the production of
lubricating oils and greases.
(13) (17) "Bulk plant" means a motor fuel storage and
distribution facility that is not a terminal and from which motor
fuel may be removed at a rack.
(14) (18) "Bulk transfer" means any transfer of motor fuel
from one location to another by pipeline tender or marine delivery
within a bulk transfer/terminal system, including, but not limited
to, all of the following:
(A) A marine vessel Movement of motor fuel from a refinery or
terminal to a terminal by a marine vessel;
(B) Pipeline movements of motor fuel from a refinery or
terminal to a terminal;
(C) Book transfer of motor fuel within a terminal between
licensed suppliers prior to completion of removal across the rack;
and
(D) Two-party exchange between licensed suppliers or between
licensed suppliers and permissive suppliers.
(15) (19) "Bulk user" means a person who maintains storage
facilities for motor fuel and uses part or all of the stored motor
fuel to operate a motor vehicle, watercraft or aircraft.
(16) (20) "Bulk transfer/terminal system" means the motor fuel
distribution system consisting of refineries, pipelines, marine
vessels and terminals. Motor fuel in a refinery, a pipeline, a
terminal or a marine vessel transporting motor fuel to a refinery
or terminal is in the bulk transfer/terminal system. Motor fuel in
a motor fuel storage facility including, but not limited to, a bulk
plant that is not part of a refinery or terminal, in the motor fuel
supply tank of any an engine or motor vehicle, in a marine vessel
transporting motor fuel to a motor fuel storage facility that is
not in the bulk transfer/terminal system, or in any a tank car,
rail car, trailer, truck or other equipment suitable for ground
transportation is not in the bulk transfer/terminal system.
(17) (21) "Carrier" means any an operator of a pipeline or
marine vessel engaged in the business of transporting motor fuel
above the terminal rack.
(18) (22) "Code" means the Code of West Virginia, 1931, as
amended.
(19) (23) "Commercial watercraft" means a watercraft employed
in the business of commercial fishing, transporting persons or
property for compensation or hire or any other trade or business.
(20) (24) "Commissioner" or "Tax Commissioner" means the West
Virginia State Tax Commissioner or his or her delegate.
(21) (25) "Compressed natural gas" means natural gas that has
been compressed and dispensed into motor fuel storage containers
and is advertised as, offered for sale as, suitable for use as or
used as an engine motor fuel.
(22) (26) "Corporate or partnership officer" means an officer
or director of a corporation, partner of a partnership or member of
a limited liability company who as an officer, director, partner or
member is under a duty to perform on behalf of the corporation,
partnership or limited liability company, the tax collection,
accounting or remitting obligations.
(23) (27) "Dead storage" is the amount of motor fuel that
cannot be pumped out of a motor fuel storage tank because the motor
fuel is below the mouth of the draw pipe. The amount of motor fuel
in dead storage is two hundred gallons for a tank with a capacity
of less than ten thousand gallons and four hundred gallons for a
tank with a capacity of ten thousand gallons or more.
(24) (28) "Denaturants" means and includes gasoline, natural
gasoline, gasoline components or toxic or noxious materials added to motor fuel grade ethanol to make it unsuitable for beverage use
but not unsuitable for automotive use.
(25) (29) "Designated inspection site" means any a state
highway inspection station, weigh station, agricultural inspection
station, mobile station or other location designated by the
commissioner to be used as a motor fuel inspection site.
(26) (30) "Destination state" means the state, territory or
foreign country to which motor fuel is directed for delivery into
a storage facility, a receptacle, a container or a type of
transportation equipment for the purpose of resale or use. The
term shall does not include a tribal reservation of any a
recognized Native American tribe.
(27) (31) "Diesel fuel" means any a liquid that is advertised
as, offered for sale as, sold for use as, suitable for use as or
used as a motor fuel in a diesel-powered highway vehicle or
watercraft. The term includes #1 fuel oil, #2 fuel oil, undyed
diesel fuel and kerosene but shall does not include gasoline or
aviation fuel.
(28) (32) "Distributor" means a person who acquires motor fuel
from a licensed supplier, permissive supplier or from another
licensed distributor for subsequent sale or use.
(29) (33) "Diversion" means transporting motor fuel outside a
reasonably direct route from the source to the destination state.
(30) (34) "Division" or "State Tax Division" means the Tax
Division of the West Virginia Department of Revenue.
(31) (35) "Dyed diesel fuel" means diesel fuel that meets the
dyeing and marking requirements of section 4082, Title 26, United
States Code, regardless of how the diesel fuel was dyed.
(32) (36) "End seller" means the person who sells motor fuel
to the ultimate user of the motor fuel.
(33) (37) "Export" means to obtain motor fuel in West Virginia
for sale or other distribution in another state, territory or
foreign country.
(34) (38) "Exporter" means a person that exports motor fuel
from this state. The seller is the exporter of motor fuel
delivered out-of-state by or for the seller and the purchaser is
the exporter of motor fuel delivered out-of-state by or for the
purchaser.
(35) (39) "Fuel" means motor fuel.
(36) "Fuel alcohol" means methanol or motor fuel grade
ethanol.
(37) (40) "Fuel grade ethanol" means the ASTM standard in
effect on the effective date of this article as the D-4806
specification for denatured motor fuel grade ethanol for blending
with gasoline.
(38) (41) "Fuel supply tank" means any a receptacle on a motor
vehicle from which motor fuel is supplied for the propulsion of the
motor vehicle.
(39) (42) "Gallon" means a unit of liquid measure as
customarily used in the United States containing two hundred
thirty-one cubic inches by volume and expresses the volume at 60
degrees Fahrenheit.
____(40) (43) "Gasohol" means a blended motor fuel composed of
gasoline and motor fuel alcohol.
(41) (44) "Gasoline" means any a product commonly or
commercially known as gasoline, regardless of classification, that
is advertised as, offered for sale as, sold for use as, suitable
for use as or used as motor fuel in an internal combustion engine,
including gasohol, but does not include special fuel as defined in
this section.
(42) (45) "Gasoline blend stocks" includes any petroleum
product component of gasoline, such as naphtha, reformate, or
toluene, listed in Treas. Reg. §48.4081-1(c) (3) that can be
blended for use in a motor fuel. However, The term does not
include any substance that will be ultimately used for consumer
nonmotor fuel use and is sold or removed in drum quantities of
fifty-five gallons or less at the time of the removal or sale.
(46) "Gallon equivalent" means the amount of an alternative
fuel that is considered to be the equivalent of a gallon of
gasoline according to the National Institute of Standards and
Technology Handbook 130 or pursuant to guidelines issued by the Tax
Commissioner.
____(43) (47) "Gross gallons" means the total measured product,
exclusive of any temperature or pressure adjustments,
considerations or deductions, in U.S. gallons.
(44) (48) "Governmental entity" means this state or any a
political subdivision thereof or the United States or its
commissioners, agencies and instrumentalities.
(45) (49) "Heating oil" means any combustible liquid,
including, but not limited to, #1 fuel oil, #2 dyed fuel oil and
kerosene that is burned in a boiler, furnace or stove for heating
or for industrial processing purposes.
(46) (50) "Highway" means every way or place of whatever
nature open to the use of the public for purposes of vehicular
travel in this state including the streets and alleys in towns and
cities.
(47) (51) "Highway vehicle" means any self-propelled vehicle,
trailer or semitrailer that is designed or used for transporting
persons or property over the public highway and includes all vehicles subject to registration under article three, chapter
seventeen-a of this code.
(48) (52) "Import" means to bring motor fuel into this state
by motor vehicle, marine vessel, pipeline or any other means.
However, Import does not include bringing motor fuel into this
state in the motor fuel supply tank of a motor vehicle if the motor
fuel is used to power that motor vehicle.
(49) (53) "Importer" means a person that imports motor fuel
into this state. The seller is the importer for motor fuel
delivered into this state from outside of this state by or for the
seller and the purchaser is the importer for motor fuel delivered
into this state from outside of this state by or for the purchaser.
(50) (54) "Import verification number" means the number
assigned by the commissioner with respect to a single transport
vehicle delivery into this state from another state upon request
for an assigned number by an importer or the transporter carrying
taxable motor fuel into this state for the account of an importer.
(51) (55) "In this state" means the area within the borders of
West Virginia including all territory within the borders of West
Virginia that is owned by the United States of America.
(52) (56) "Invoiced gallons" means the gallons actually billed
on an invoice for payment.
(53) (57) "Licensee" means any a person licensed by the
commissioner pursuant to section ten of this article.
(54) (58) "Liquid" means any a substance that is liquid above
its freezing point.
(55) (59) "Liquefied natural gas" means natural gas that has
been liquefied at -126.1 degrees centigrade and stored in insulated
cryogenic tanks for use as an engine motor fuel.
(56) (60) "Motor carrier" means any a vehicle used, designated
or maintained for the transportation of persons or property and
having two axles and a gross vehicle weight exceeding twenty-six
thousand pounds or having three or more axles regardless of weight
or is used in combination when the weight of the combination
exceeds twenty-six thousand pounds or registered gross vehicle
weight, and any aircraft, barge or other watercraft or railroad
locomotive transporting passengers or freight in or through this
state: Provided, That the gross vehicle weight rating of the
vehicles being towed is in excess of ten thousand pounds. The term
motor carrier does not include any type of recreational vehicle.
(57) (61) "Motor fuel" means gasoline, blended fuel, aviation
fuel, and any special fuel and alternative fuel.
____(58) (62) "Motor fuel transporter" means a person who
transports motor fuel outside the bulk transfer/terminal system by means of a transport vehicle, a railroad tank car or a marine
vessel.
(59) (63) "Motor vehicle" means automobiles, motor carriers,
motor trucks, motorcycles and all other vehicles or equipment,
engines or machines which are operated or propelled by combustion
of motor fuel.
(60) (64) "Net gallons" means the amount of motor fuel
measured in gallons when adjusted to a temperature of sixty degrees
Fahrenheit and a pressure of fourteen and seven-tenths pounds
pressure per square inch.
(61) (65) "Permissive supplier" is a person who may not be
subject to the taxing jurisdiction of this state but who meets both
of the following requirements: (A) Is registered under Section
4101 of the Internal Revenue Code for transactions in motor fuel in
the bulk transfer/terminal system; and (B) a position holder in
motor fuel only located in another state or a person who receives
motor fuel only in another state pursuant to a two-party exchange:
Provided, That a person is classified as a supplier if it has or
maintains, occupies or uses, within this state, directly or by a
subsidiary, an office, distribution house, sales house, warehouse,
or other place of business, or any agent or representative (by
whatever name called) operating within this state under the
authority of the supplier or its subsidiary.
(62) (66) "Person" means any an individual, firm, cooperative,
association, corporation, limited liability corporation, estate,
guardian, executor, administrator, trust, business trust,
syndicate, partnership, limited partnership, copartnership,
organization, limited liability partnership, joint venture,
receiver and trustee in bankruptcy. "Person" also means a club,
society or other group or combination acting as a unit, or a public
body including, but not limited to, this state and any other state
and any an agency, commissioner, institution, political subdivision
or instrumentality of this state or any other state and, also, any
an officer, employee or member of any of the foregoing who, as an
officer, employee or member, is under a duty to perform or is
responsible for the performance of an act prescribed by the
provisions of this article.
(63) (67) "Position holder" means the person who holds the
inventory position in motor fuel in a terminal as reflected on the
records of the terminal operator. A person holds the inventory
position in motor fuel when that person has a contract with the
terminal operator for the use of storage facilities and terminaling
services for motor fuel at the terminal. The term includes a
terminal operator who owns motor fuel in the terminal.
(64) (68) "Principal" means:
(A) If a partnership, all its partners;
(B) If a corporation, all its officers, directors, and
controlling direct or indirect owners;
(C) If a limited liability company, all its members; or
(D) An individual.
(69) "Producer/manufacturer" means a person who produces,
refines, blends, distills, manufactures or compounds motor fuel.
____(70) "Provider of alternative fuel" means a person who does
one or more of the following:
____(A) Acquires alternative fuel for sale or delivery to an
alternative fuel bulk end-user or an alternative fuel retailer;
____(B) Maintains storage facilities for alternative fuel
including alternative fuel home refueling infrastructures and
alternative fuel commercial refueling infrastructures, part or all
of which the person uses or sells to someone other than an
alternative fuel bulk end-user or an alternative fuel retailer to
operate a highway vehicle;
____(C) Sells alternative fuel and uses part of the fuel acquired
for sale to operate a highway vehicle by means of a fuel supply
line from the cargo tank of the vehicles to the engine of the
vehicle;
____(D) Imports alternative fuel into this state by a means other
than the usual tank or receptacle connected with the engine of a highway vehicle for use by that person to operate a highway
vehicle.
____(65) (71) "Rack" means a mechanism for delivering motor fuel
from a refinery, terminal, marine vessel or bulk plant into a
transport vehicle, railroad tank car or other means of transfer
that is outside the bulk transfer/terminal system.
(66) (72) "Railroad locomotive" means any diesel-powered
equipment or machinery that rides on railroad rails and includes a
switching engine.
(67) (73) "Receive" means any acquisition of ownership or
possession of motor fuel.
(68) (74) "Refiner" means any a person who owns, operates or
otherwise controls a refinery.
(69) (75) "Refinery" means a facility for the manufacture or
reprocessing of finished or unfinished petroleum products usable as
motor fuel and from which motor fuel may be removed by pipeline or
marine vessel or at a rack.
(70) (76) "Removal" means a physical transfer other than by
evaporation, loss or destruction. A physical transfer to a
transport vehicle or other means of conveyance outside the bulk
transfer/terminal system is complete upon delivery into the means
of conveyance.
(71) (77) "Retailer" means a person who sells motor fuel at
retail or dispenses motor fuel at a retail location.
(78) "Retailer of alternative fuel" means a person who
maintains storage facilities, including alternative fuel vehicle
commercial refueling infrastructure, for alternative fuel and who
sells the fuel at retail or dispenses the fuel at a retail location
to operate a motor vehicle.
____(72) (79) "Special fuel" means any a gas or liquid, other than
gasoline, used or suitable for use as motor fuel in an internal
combustion engine or motor to propel any form of vehicle, machine,
or mechanical contrivance and includes products commonly known as
natural or casing-head gasoline, diesel fuel, dyed diesel fuel,
biodiesel fuel, transmix, and all forms of motor fuel commonly or
commercially known or sold as butane, propane, liquefied natural
gas, liquefied petroleum gas, compressed natural gas product or a
combination of liquefied petroleum gas and a compressed natural gas
product. methanol, ethanol, methanol fuel, M100, ethanol fuel,
E100, ethanol fuel blend, E85 and any fuel mixture that contains
eighty-five percent or more alcohol by volume when combined with
gasoline or other fuels and liquid fuel derived from coal through
the Fischer-Tropsch process. "Special fuel" does not include
alternative fuel or any petroleum product or chemical compound such as alcohol, industrial solvent, heavy furnace oil or lubricant,
unless blended in or sold for use as motor fuel in an internal
combustion engine.
(73) (80) "State" or "this state" means the State of West
Virginia.
(74) (81) "Supplier" means a person that is:
(A) Subject to the general taxing jurisdiction of this state;
(B) Registered under Section 4101 of the Internal Revenue Code
for transactions in motor fuel in the bulk transfer/terminal
distribution system; and
(C) One of the following:
(i) A position holder in motor fuel in a terminal or refinery
in this state and may concurrently also be a position holder in
motor fuel in another state; or
(ii) A person who receives motor fuel in this state pursuant
to a two-party exchange.
A terminal operator shall not be considered is not a supplier
based solely on the fact that the terminal operator handles motor
fuel consigned to it within a terminal.
(75) (82) "Tax" or "this tax" is the motor fuel excise tax
imposed by this article and includes within its meaning interest
and additions to tax and penalties unless the context requires a
more limited meaning.
(76) (83) "Taxpayer" means any a person required to file a
return for the tax imposed by this article or any a person liable
for payment of the tax imposed by this article.
(77) (84) "Terminal" means a motor fuel storage and
distribution facility to which a terminal control number has been
assigned by the Internal Revenue Service, to which motor fuel is
supplied by pipeline or marine vessel and from which motor fuel may
be removed at a rack.
(78) (85) "Terminal operator" means a person who owns,
operates or otherwise controls a terminal.
(79) (86) "Transmix" means: (A) The buffer or interface
between two different products in a pipeline shipment; or (B) a mix
of two different products within a refinery or terminal that
results in an off-grade mixture.
(80) (87) "Transport vehicle" means a vehicle designed or used
to carry motor fuel over the highway and includes a straight truck,
a straight truck/trailer combination and a semitrailer combination
rig.
(81) (88) "Trustee" means a person who is licensed as a
supplier or a permissive supplier and receives tax payments from
and on behalf of another pursuant to section twenty-four of this
article.
(82) (89) "Two-party exchange" means a transaction in which
motor fuel is transferred from one licensed supplier or permissive
supplier to another licensed supplier or permissive supplier
pursuant to an exchange agreement; and
(A) Includes a transfer from the person who holds the
inventory position in taxable motor fuel in the terminal as
reflected on the records of the terminal operator;
(B) Is completed prior to removal of the product from the
terminal by the receiving exchange partner; and
(C) Is recorded on the terminal operator's books and records
with the receiving exchange partner as the supplier that removes
the motor fuel across the terminal rack for purposes of reporting
the transaction to this state.
(83) (90) "Use" means the actual consumption or receipt of
motor fuel by any a person into a motor vehicle, aircraft or
watercraft.
(84) (91) "Watercraft" means any vehicle used on waterways.
§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 $.205 per invoiced gallon and, on
alternative fuel, on each gallon equivalent, plus a variable
component comprised of:
(1) On motor fuel other than alternative fuel, 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 January 1, 2004: Provided, however, That the
variable component shall be equal to five percent of the average
wholesale price of the motor fuel: Provided further, That the
average wholesale price shall be no less than $.97 per invoiced
gallon and is computed as hereinafter prescribed in this section:
And provided further, That on and after January 1, 2010, the
average wholesale price shall be no less than $2.34 per invoiced
gallon and is computed as hereinafter prescribed in this section;
and
____(2) On alternative fuel, 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. The tax on alternative fuel takes effect on January 1,
2014, with a variable component equal to five percent of the
average wholesale price of the alternative fuel.
(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 or on each gallon equivalent of
alternative fuel as determined by the Tax Commissioner from
information furnished by suppliers, importers and distributors of
motor fuel and alternative fuel providers, alternative bulk
end-users and retailers of alternative 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. Provided, however,
That For calendar year 2009, the average wholesale price of motor
fuel shall not exceed the average wholesale price of motor fuel for
calendar year 2008 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.
Provided further, That On and after January 1, 2010, in no event
shall the average wholesale price be determined to be less than
$2.34 per gallon of motor fuel. And provided further, That On and
after January 1, 2011, the average wholesale price shall not vary
by more than ten percent from the average wholesale price of motor
fuel as determined by the Tax Commissioner for the previous
calendar year.
(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 a 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 an 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 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
floorstocks tax is payable by the person in possession of the motor
fuel on January 1, 2004. 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 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 floorstocks 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 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.
(e) The Tax Commissioner shall determine by January 1, 2014,
the gasoline gallon equivalent for each alternative fuel by filing
a notice of the gasoline gallon equivalent in the State Register
and by other means that the Tax Commissioner considers reasonable.
The Tax Commissioner may redetermine the gasoline gallon equivalent
for each alternative fuel by filing a notice of the gasoline gallon
equivalent in the State Register at least thirty days in advance of
January 1 for the next succeeding tax year. For purposes of this
notice, the Tax Commissioner may adopt or incorporate by reference
provisions of the National Institute of Standards and Technology,
United States Department of Commerce, the Internal Revenue Code,
United States Treasury Regulations, the Internal Revenue Service
publications or guidelines or other publications or guidelines
which may be useful in determining, setting or describing the
gasoline gallon equivalent for each alternative fuel used as motor
fuel.
§11-14C-6a. Point of imposition of motor fuels tax on alternative
fuel.
(a) The tax levied pursuant to section five of this article is
imposed on alternative fuel without regard to whether it is sold, transported or distributed within the bulk transfer/terminal system
or outside of the bulk transfer/terminal system.
(b) The tax levied pursuant to section five of this article is
imposed on alternative fuel that is not otherwise taxed at the
point of imposition prescribed under section six of this article at
the following points of imposition in the following order:
(1) At the time alternative fuel is withdrawn from the storage
facility including alternative fuel home refueling infrastructures
and alternative fuel commercial refueling infrastructures;
(2) If not taxed at the point of imposition described in
subdivision (1) of this subsection, then at the time alternative
fuel is sold for use in a highway vehicle;
(3) If not taxed at the point of imposition described in
subdivision (1) or at the point of imposition described in
subdivision (2) of this subsection, then at the time alternative
fuel is used in a highway vehicle.
§11-14C-9. Exemptions from tax; claiming refunds of tax.
(a) Per se exemptions 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 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 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) Sales of dyed special fuel; and
(4) Sales of propane unless sold for use in a motor vehicle.
(b) Per se exemptions 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 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 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 from flat rate component of tax. --
Any A person having a right or claim to any of the following exemptions from the flat rate component of the tax levied by
section five of this article 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 a 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 five of this
article on those sales;
(2) Any A county government or unit or agency thereof;
(3) Any A municipal government or any agency thereof;
(4) Any county boards A county board of education;
(5) Any An urban mass transportation authority created
pursuant to the provisions of article twenty-seven, chapter eight
of this code;
(6) Any A 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 a person who is required 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 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 a 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 motor 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 a person regularly operating any
a 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 $0.6 per gallon:
Provided, however, That the gallons of motor fuel 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 from variable rate component of tax.
-- Any of the following persons may claim an exemption 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 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
variable rate of tax imposed by said section five of this article
on those sales.
(2) This state and its institutions;
(3) Any A county government or unit or agency thereof;
(4) Any A municipal government or any agency thereof;
(5) Any county boards A county board of education;
(6) Any An urban mass transportation authority created
pursuant to the provisions of article twenty-seven, chapter eight
of this code;
(7) Any A 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 a person who is required 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 A bona fide volunteer fire department, nonprofit
ambulance service or emergency rescue service that has been
certified by the municipality or county wherein where 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 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 does not apply to sales of motor
fuel under this article.
PART 3. MOTOR FUEL LICENSING.
§11-14C-10. Persons required to be licensed.
(a) A person shall obtain the appropriate license or licenses
issued by the commissioner before conducting the activities of:
(1) A supplier which includes a refiner;
(2) A permissive supplier;
(3) An importer;
(4) An exporter;
(5) A terminal operator;
(6) A blender;
(7) A motor fuel transporter; or
(8) A distributor;
(9) A producer/manufacturer;
_____(10) An alternative fuel bulk end-user;
_____(11) A provider of alternative fuel; or
_____(12) A retailer of alternative fuel.
(b) A person who is engaged in more than one activity for
which a license is required shall have a separate license for each
activity, except as otherwise determined by the commissioner.
§11-14C-13. Bond requirements.
(a) There shall be filed with Along 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 shall be filed. 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
is 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
$100,000 or an amount equal to three months' tax liability,
whichever is greater, Provided, That the amount but shall not
exceed $2 million: 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 $100,000 or an amount equal to three months' tax
liability, whichever is greater, Provided, That the amount but
shall not exceed $2 million. 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 $100,000 or an amount equal to three months' tax
liability, whichever is greater, Provided, That the amount but
shall not exceed $2 million. 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 $100,000 or an amount
equal to three months' tax liability, whichever is greater,
Provided, That the amount but shall not exceed $2 million.
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
$2,000 or an amount equal to three months' tax liability, whichever
is greater, Provided, That the amount but shall not exceed
$300,000. 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 $100,000 or an amount equal to three months' tax
liability, whichever is greater, Provided, That the amount but
shall not exceed $2 million. 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 $2,000 or an amount equal to three months' tax
liability, whichever is greater, Provided, That the amount but
shall not exceed $300,000. 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
$2,000 or an amount equal to three months' tax liability, whichever
is greater, Provided, That the amount but shall not exceed
$300,000. 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
$2,000 or an amount equal to three months' tax liability, whichever
is greater, Provided, That the amount but shall not exceed
$300,000. 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 $2,000 or an amount equal to three months' tax liability,
whichever is greater, Provided, That the amount but shall not
exceed $300,000. 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 is
no bond; and
_____(12) For a producer/manufacturer license, there is no bond. If
the taxpayer fails to file a return or remit tax due under this article, the commissioner may require a cash bond or a continuous
surety bond in an amount to be determined by the commissioner. When
required by the commissioner to file a cash bond or a continuous
surety bond, the licensee shall comply with the commissioner's
notification within thirty days after receiving that notification;
_____(13) For an alternative fuel bulk end-user, a provider of
alternative fuel and a retailer of alternative fuel, there is no
bond. If the taxpayer fails to file a return or remit tax due under
this article, the commissioner may require a cash bond or a
continuous surety bond in an amount to be determined by the
commissioner. When required by the commissioner to file a cash
bond or a continuous surety bond, the licensee shall comply with
the commissioner's notification within thirty days after receiving
that notification; and
_____(12) (14) 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 must demonstrate the
absence of circumstances indicating risk with the collection of
taxes from the applicant. Provided, however, That the following shall constitute The following constitutes proof of financial
responsibility:
(A) Proof of $5 million net worth shall constitute constitutes
evidence of financial responsibility in lieu of posting the
required bond;
(B) Proof of $2,500,000 net worth constitutes financial
responsibility in lieu of posting fifty percent of the required
bond; and
(C) Proof of $1,250,000 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) (15) 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) (16) Any A 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 is 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 does not relieve, release or
discharge the surety from liability already accrued or which shall
will accrue before the expiration of the sixty-day period.
Whenever any a 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 A taxpayer that has furnished a cash bond hereunder
shall be is 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 the commissioner performs 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 will accrue before the expiration of the sixty-day period.
Whenever any a 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.
PART 4. PAYMENT AND REPORTING OF TAX ON MOTOR FUEL.
§11-14C-19. When tax return and payment are due.
(a) The tax levied by this article shall be paid by each
taxpayer on or before the last day of the calendar month by check,
bank draft or money order payable to the commissioner for the
amount of tax due, if any, for the preceding month. Provided, That
The commissioner may require all or certain taxpayers to file tax
returns and payments electronically. The return required by the
commissioner shall accompany the payment of tax. Provided,
however, That If no tax is due, the return required by the
commissioner shall be completed and filed before the last day of
the calendar month for the preceding month.
(b) The following shall file a monthly return as required by
this section:
(1) A terminal operator;
(2) A supplier;
(3) An importer;
(4) A blender;
(5) A person incurring liability under section eight of this
article for the backup tax on motor fuel;
(6) A permissive supplier;
(7) A motor fuel transporter; and
(8) An exporter; and
_____(9) A producer/manufacturer.
_____(c)(1) For the calendar years beginning January 1, 2014, the
tax levied by this article on alternative fuel that is subject to
tax at the point of imposition prescribed in section 6a of this
article, shall be paid by the alternative fuel bulk end-user,
provider of alternative fuel or retailer of alternative fuel on or
before January 31 of every year, unless determined by the
commissioner that payment must be made more frequently, by check,
bank draft, or money order payable to the commissioner for the
amount of tax due. The commissioner may require all or certain
taxpayers to file tax returns and payments electronically. The
return required by the commissioner shall accompany the payment of
tax. If no tax is due, the return required by the commissioner
shall be completed and filed before January 31.
ARTICLE 15. CONSUMER SALES AND SERVICE TAX.
§11-15-18b. Tax on motor fuel effective January 1, 2004.
(a) General. -- Effective January 1, 2004, all sales of motor
fuel and alternative fuel subject to the flat rate of the tax
imposed by section five, article fourteen-c of this chapter, are
subject to the tax imposed by this article which shall comprise and
comprises the variable component of the tax imposed by said section
five, article fourteen-c of this chapter and be is collected and
remitted at the time the tax imposed by said section is remitted.
Sales of motor fuel and alternative fuel upon which the tax imposed
by this article has been paid shall not thereafter be is not again
taxed under the provisions of this article. This section is
construed so means that all gallons of motor fuel and equivalent
gallons of alternative fuel sold and delivered or delivered in this
state are taxed one time.
(b) Measure of tax. -- The measure of tax imposed by this
article is as follows:
_____(1) On sales of motor fuel, is the average wholesale price as
defined and determined in section five, article fourteen-c of this
chapter. For purposes of maintaining revenue for highways, and
recognizing that the tax imposed by this article is generally
imposed on gross proceeds from sales to ultimate consumers, whereas
the tax on motor fuel herein is imposed on the average wholesale
price of the motor fuel; in no case, for the purposes of taxation
under this article, shall may the average wholesale price be determined to be less than $.97 per gallon of motor fuel for all
gallons of motor fuel sold during the reporting period,
notwithstanding any provision of this article to the contrary.
Provided, That On and after January 1, 2010, for the purpose of
taxation under this article, in no case shall may the average
wholesale price be determined to be less than $2.34 per gallon of
motor fuel for all gallons of motor fuel sold during the reporting
period notwithstanding any provision of this article to the
contrary.
(2) On sales of alternative fuel, the average wholesale price
as defined and determined in section five, article fourteen-c of
this chapter.
(c) Definitions. -- For purposes of this article, the terms
ôgasolineö and ôspecial fuelö are defined as provided in section
two, article fourteen-c of this chapter. Other terms used in this
section have the same meaning as when used in a similar context in
said article. "Alternative fuel" as defined in section two,
article fourteen-c of this chapter is taxable in accordance with
this article and article fourteen-c of this chapter.
(d) Tax return and tax due.
(1) The tax imposed by this article on sales of motor fuel
shall be paid by each taxpayer on or before the last day of the
calendar month by check, bank draft, certified check or money order payable to the Tax Commissioner for the amount of tax due for the
preceding month notwithstanding any provision of this article to
the contrary. Provided, That The commissioner may require all or
certain taxpayers to file tax returns and payments electronically.
The return required by the commissioner shall accompany the payment
of tax. Provided, however, That If no tax is due, the return
required by the commissioner shall be completed and filed on or
before the last day of the month.
_____(2) (A) For the calendar years beginning January 1, 2014,
through and including the calendar year ending December 31, 2020,
the tax imposed by this article on sales of alternative fuel
subject to tax at the point of imposition prescribed in section
six-a, article fourteen-c, of this chapter, shall be paid by each
taxpayer annually on or before the thirty-first day of January by
check, bank draft, certified check or money order payable to the
Tax Commissioner for the amount of tax due for the preceding
calendar year notwithstanding any provision of this article to the
contrary. The commissioner may require all or certain taxpayers to
file tax returns and payments electronically. The return required
by the commissioner shall accompany the payment of tax. If no tax
is due, the return required by the commissioner shall be completed
and filed on or before January 31.
_____(B) For the calendar year beginning January 1, 2021, and
thereafter, the tax imposed by this article on sales of alternative
fuel subject to tax at the point of imposition prescribed in
section six-a, article fourteen-c, of this chapter, shall be paid
by each taxpayer on or before the last day of the calendar month by
check, bank draft, or money order payable to the commissioner for
the amount of tax due, if any, for the preceding month. The
commissioner may require all or certain taxpayers to file tax
returns and payments electronically. The return required by the
commissioner shall accompany the payment of tax. Provided,
however, That If no tax is due, the return required by the
commissioner shall be completed and filed before the last day of
the calendar month for the preceding month.
(e) Compliance. -- To facilitate ease of administration and
compliance by taxpayers, the Tax Commissioner shall require persons
liable for the tax imposed by this article on sales of motor fuel
to file a combined return and make a combined payment of the tax
due under this article on sales of motor fuel and the tax due under
article fourteen-c of this chapter on motor fuel. In order to
encourage use of a combined return each month and the making of a
single payment each month for both taxes, the due date of the
return and tax due under said article fourteen-c of this chapter is
the last day of each month notwithstanding any provision in said article to the contrary.
The Tax Commissioner may prescribe
reporting and payment requirements for tax due under this article
on alternative fuel which accommodate the due dates and
requirements prescribed in this article and article fourteen-c of
this chapter, either under a separate return and payment or a
combined return and payment, within the discretion of the Tax
Commissioner.
(f) Dedication of tax. -- All tax collected under the
provisions of this section, after deducting the amount of any
refunds lawfully paid, shall be deposited in the road fund in the
State Treasurer's office and used only for the purpose of
construction, reconstruction, maintenance and repair of highways
and payment of principal and interest on state bonds issued for
highway purposes. Provided, That Notwithstanding any provision to
the contrary, any tax collected on the sale of aviation fuel after
deducting the amount of any refunds lawfully paid shall be
deposited in the State Treasurer's office and transferred to the
State Aeronautical Commission to be used for the purpose of
matching federal funds available for the reconstruction,
maintenance and repair of public airports and airport runways.
(g) Construction. -- This section is not construed as taxing
any does not tax a sale of motor fuel which this state is prohibited from taxing under the constitution of this state or the
constitution or laws of the United States.
(h) Effective date. -- The provisions of this section take
effect on January 1, 2004. The provisions of this section enacted
during the 2007 legislative session take effect on January 1, 2008.
The provisions of this section enacted during the 2013 regular
legislative session take effect on January 1, 2014.
ARTICLE 15A. USE TAX.
§11-15A-13a. Tax on motor fuel effective January 1, 2004.
(a) Imposition of tax. --
(1) On deliveries in this state. -- Effective January 1, 2004,
all motor fuel furnished or delivered within this state which is
subject to the flat rate of the tax imposed by section five,
article fourteen-c of this chapter is subject to the tax imposed by
this article which shall comprise comprises the variable component
of the tax imposed by the said section five, article fourteen-c,
and shall be collected and remitted at the time the tax imposed by
the said section five, article fourteen-c is remitted. Provided,
That The amount of tax due under this article shall in no event not
be less than five percent of the average wholesale price of motor
fuel as determined in accordance with said section five, article
fourteen-c.
(2) On purchases out-of-state subject to motor fuel tax. --
Effective January 1, 2004, an excise tax is hereby imposed on the
importation into this state of motor fuel purchased outside this
state when the purchase is subject to the flat rate of the tax
imposed by section five, article fourteen-c of this chapter.
Provided, That The rate of the tax due under this article shall in
no event not be less than five percent of the average wholesale
price of the motor fuel, as determined in accordance with said
section five, article fourteen-c. Provided, however, That The
motor fuel subject to the tax imposed by this article shall
comprise comprises the variable component of the tax imposed by the
said section five, article fourteen-c, and shall be collected and
remitted by the seller at the time the seller remits the tax
imposed by the said section five, article fourteen-c.
(3) On other purchases out-of-state. -- An excise tax is
hereby imposed on the use or consumption in this state of motor
fuel purchased outside this state at the rate of five percent of
the average wholesale price of the motor fuel, as determined in
accordance with section five, article fourteen-c of this chapter.
Provided, That Motor fuel contained in the fuel supply tank of a
motor vehicle that is not a motor carrier shall not be is not
taxable except that motor fuel imported in the fuel supply tank or
auxiliary tank of construction equipment, mining equipment, track maintenance equipment or other similar equipment, shall be is taxed
in the same manner as that in the fuel supply tank of a motor
carrier.
_____(4) On use of alternative fuel - Effective January 1, 2014,
an excise tax is imposed on alternative fuel used within this state
which is subject to the flat rate of the tax imposed by section
five, article fourteen-c of this chapter. Alternative fuel is
subject to the tax imposed by this article and comprises the
variable component of the tax imposed by the section five, article
fourteen-c of this chapter and shall be collected and remitted at
the time the tax imposed by section five, article fourteen-c of
this chapter
is remitted. Provided, That The amount of tax due
under this article shall not be less than five percent of the
average wholesale price of alternative fuel as determined in
accordance with section five, article fourteen-c of this chapter.
(b) Definitions. -- For purposes of this article, the terms
"gasoline" and "special fuel" are defined as provided in section
two, article fourteen-c of this chapter. Other terms used in this
section have the same meaning as when used in a similar context in
article fourteen-c of this chapter.
(c) Computation of tax due from motor carriers. -- Every
person who operates or causes to be operated a motor carrier in
this state shall pay the tax imposed by this section on the average wholesale price of all gallons or equivalent gallons of motor fuel
used in the operation of any a motor carrier within this state,
under the following rules:
(1) The total amount of motor fuel used in the operation of
the motor carrier within this state is that proportion of the total
amount of motor fuel used in any a motor carrier's operations
within and without this state, that the total number of miles
traveled within this state bears to the total number of miles
traveled within and without this state.
(2) A motor carrier shall first determine the gross amount of
tax due under this section on the average wholesale value,
determined under section five, article fourteen-c of this chapter,
of all motor fuel used in the operation of the motor carrier within
this state during the preceding quarter, as if all gasoline and
special fuel had been purchased outside this state.
(3) Next, the taxpayer shall determine the total tax paid
under article fifteen of this chapter on all motor fuel purchased
in this state for use in the operation of the motor carrier.
(4) The difference between (2) and (3) is the amount of tax
due under this article when (2) is greater than (3), or the amount
to be refunded or credited to the motor carrier when (3) is greater
than (2), which refund or credit is allowed in the same manner and under the same conditions as a refund or credit is allowed for the
tax imposed by article fourteen-a of this chapter.
(d) Return and payment of tax. -- Tax due under this article
on the uses or consumption in this state of motor fuel shall be
paid by each taxpayer on or before January 25 , April 25, July 25
and October 25 of each year, notwithstanding any provision of this
article to the contrary, by check, bank draft, certified check or
money order, payable to the Tax Commissioner, for the amount of tax
due for the preceding quarter. Provided, That The tax due under
this article that comprises comprising the variable component of
the tax due under article fourteen-c of this chapter is due on the
last day of the month. Every taxpayer shall make and file with his
or her remittance, a return showing the information the Tax
Commissioner requires. The tax due under this article comprising
the variable component of the tax due under article fourteen-c of
this chapter on alternative fuel, is due and shall be collected and
remitted at the time the tax imposed by section five, article
fourteen-c of this chapter is due, collected and remitted.
(e) Compliance. -- To facilitate ease of administration and
compliance by taxpayers, the Tax Commissioner shall require motor
carriers liable for the taxes imposed by this article on the use of
motor fuel in the operation of motor carriers within this state,
and the tax imposed by article fourteen-a of this chapter on such gallons of motor fuel, to file a combined return and make a
combined payment of the tax due under this article and article
fourteen-a of this chapter on the fuel. In order to encourage use
of a combined return and the making of a single payment each
quarter for both taxes, the due date of the return and tax due
under article fourteen-a of this chapter is the last day of
January, April, July and October of each calendar year: Provided,
That the Tax Commissioner may prescribe reporting and payment
requirements for tax due under this article on alternative fuel
which accommodate the due dates and requirements prescribed in this
article and article fourteen-c of this chapter, either under a
separate return and payment or a combined return and payment,
within the discretion of the Tax Commissioner.
(f) Dedication of tax to highways. -- All Tax collected under
the provisions of this section, after deducting the amount of any
refunds lawfully paid, shall be deposited in the "road fund" in the
State Treasurer's office and used only for the purpose of
construction, reconstruction, maintenance and repair of highways
and payment of principal and interest on state bonds issued for
highway purposes.
(g) Construction. -- The tax imposed by this article on the
use of motor fuel in this state is not construed as taxing any does
not tax motor fuel which the state is prohibited from taxing under the Constitution of this state or the Constitution or laws of the
United States.
(h) Effective date. -- The provisions of this section take
effect January 1, 2004. The provisions of this section enacted
during the 2013 legislative session take effect on January 1, 2014.
NOTE: The purpose of this bill is to provide a framework for
computation, payment and reporting of the Motor Fuel Excise Tax on
alternative fuels.
§11-14C-6a is new; therefore, strike-throughs and underscoring
have been omitted.
Strike throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would
be added.