ENROLLED
H. B. 4567
(By Delegates Craig, Morgan, Leach, Kominar,
Amores, H. White and R. M. Thompson)
[Passed March 13, 2004; in effect ninety days from passage
.]
AN ACT to amend and reenact §11-14A-2, §11-14A-3a, §11-14A-4,
§11-14A-5, §11-14A-6, §11-14A-7, §11-14A-9, §11-14A-11,
§11-14A-13, §11-14A-16, §11-14A-27 and §11-14A-28 of the code
of West Virginia, 1931, as amended; and to further amend and
reenact §11-14B-1, §11-14B-2, §11-14B-3, §11-14B-5, §11-14B-6,
§11-14B-10 and §11-14B-14 of said code, all relating to the
motor carrier road tax and international fuel tax agreement;
defining certain motor carrier road tax terms; applying motor
carrier road tax to household goods carriers and independent
contractors; establishing liability for tax between lessors
and lessees; restating method of computing tax; revising time
for payment of taxes and filing reports; providing penalty for
failure to maintain certain records; authorizing tax
commissioner to issue assessment for erroneously calculated
tax; requiring identification markers and providing for the
revocation and removal thereof; prohibiting trip permits for
certain motor carriers; providing civil penalty of revocation when taxpayer acts contrary to law; establishing new crimes
and providing criminal penalties therefor; providing for
administration of certain credits against motor carrier road
tax; eliminating requirement for surety bond conditioned on
compliance with law; authorizing disposition of taxes
collected under article fourteen-b, chapter eleven of this
code; increasing penalty for failure to file return when no
tax due; authorizing interest rate on delinquent motor carrier
road tax to be one percent per month; establishing effective
date of amendments; defining certain international fuel tax
agreement terms; establishing identification marker
requirements; reserving authority of state to determine
applicability of state law; establishing application of
article fourteen-a, chapter eleven of this code; specifying
those subject to the provisions of article fourteen-a, chapter
eleven of this code; authorizing audits by the tax
commissioner; and providing that state law controls in the
event of inconsistency with the international fuel tax
agreement.
Be it enacted by the Legislature of West Virginia:
That §11-14A-2, §11-14A-3a, §11-14A-4, §11-14A-5, §11-14A-6,
§11-14A-7, §11-14A-9, §11-14A-11, §11-14A-13, §11-14A-16,
§11-14A-27 and §11-14A-28 of the code of West Virginia, 1931, as
amended, be amended and reenacted; and that §11-14B-1, §11-14B-2,
§11-14B-3, §11-14B-5, §11-14B-6, §11-14B-10 and §11-14B-14 of said
code be amended and reenacted, all to read as follows:
ARTICLE 14A. MOTOR CARRIER ROAD TAX.
§11-14A-2. Definitions.
For purposes of this article:
(1) "Average fuel consumption factor" means the miles driven
by the fleet of motor carriers for each gallon of motor fuel
consumed in that activity (miles per gallon), and is calculated by
dividing the total distance driven in all jurisdictions during the
reporting period by the total quantity of motor fuel consumed in
the operation of the motor carrier in all jurisdictions during the
same reporting period.
(2) "Commissioner" or "tax commissioner" means the tax
commissioner of the state of West Virginia or his or her duly
authorized agent.
(3) "Fleet" means, for purposes of administering the tax
imposed by this article, one or more motor carriers operated by the
same person.
(4) "Gallon" means two hundred thirty-one cubic inches of
liquid measurement, by volume: Provided, That the commissioner may
by rule prescribe other measurement or definition of gallon.
(5) "Gasoline" means any product commonly or commercially
known as gasoline, regardless of classification, suitable for use
as fuel in an internal combustion engine, except special fuel as
hereinafter defined: Provided, That in the event there is a
question as to the proper classification of any product, "gasoline"
has the same meaning as in article fourteen-c of this chapter.
(6) "Highway" means every way or place of whatever nature open to the use of the public as a matter of right for the purpose of
vehicular travel, which is maintained by this state or some taxing
subdivision or unit thereof or the federal government or any of its
agencies.
(7) "Household goods carrier" means a person that uses a motor
carrier for the movement of another's household goods.
(8) "Identification marker" means the decal issued by the
commissioner for display upon a particular motor carrier and
authorizing a person to operate or cause to be operated a motor
carrier upon any highway of the state: Provided, That an
identification marker shall include decals issued under the
authority of article fourteen-b of this chapter to persons licensed
thereunder: Provided, however, That said decals shall comply with
the international fuel tax agreement requirements referenced under
the said article fourteen-b.
(9) "Independent contractor" means a person that uses its
motor carrier or motor carriers in its own or another person's
business for the purpose of transporting passengers or the goods of
a third party.
(10) "Lease" means any oral or written contract for valuable
consideration granting the use of a motor carrier.
(11) "Motor carrier" means any vehicle used, designed or
maintained for the transportation of persons or property and having
two axles and a gross vehicle weight exceeding twenty-six thousand
pounds or eleven thousand seven hundred ninety-seven kilograms, 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 eleven thousand seven hundred ninety-seven
kilograms gross vehicle weight or registered gross vehicle weight.
The term motor carrier does not include any type of recreational
vehicle.
(12) "Motor fuel" means motor fuel as defined in article
fourteen-c of this chapter effective the first day of January, two
thousand four.
(13) "Operation" means any operation of any motor carrier,
whether loaded or empty, whether for compensation or not, and
whether owned by or leased to the person who operates or causes to
be operated any motor carrier.
(14) "Person" means and includes any individual, firm,
partnership, limited partnership, joint venture, association,
company, corporation, organization, syndicate, receiver, trust or
any other group or combination acting as a unit, in the plural as
well as the singular number, and includes the officers, directors,
trustees or members of any firm, partnership, limited partnership,
joint venture, association, company, corporation, organization,
syndicate, receiver, trust or any other group or combination acting
as a unit, in the plural as well as the singular number, unless the
intention to give a more limited meaning is disclosed by the
context.
(15) "Pool operation" means any operation whereby two or more
taxpayers combine to operate or cause to be operated a motor
carrier or motor carriers upon any highway in this state.
(16) "Purchase" means and includes any acquisition of
ownership of property or of a security interest for a
consideration.
(17) "Recreational vehicles" means vehicles such as motor
homes, pickup trucks with attached campers and buses, when used
exclusively for personal pleasure by an individual. In order to
qualify as a recreational vehicle, the vehicle shall not be used in
connection with any business endeavor.
(18) "Road tractor" means every motor carrier designed and
used for drawing other vehicles and not constructed as to carry any
load thereon either independently or any part of the weight of a
vehicle or load so drawn.
(19) "Sale" means any transfer, exchange, gift, barter or
other disposition of any property or security interest for a
consideration.
(20) "Special fuel" means any gas or liquid, other than
gasoline, used or suitable for use as fuel in an internal
combustion engine. The term "special fuel" includes products
commonly known as natural or casing-head gasoline but shall not
include any petroleum product or chemical compound such as alcohol,
industrial solvent, heavy furnace oil, lubricant, etc., not
commonly used nor practicably suited for use as fuel in an internal
combustion engine: Provided, That in the event there is a question
as to the proper classification of any gas or liquid, "special
fuel" has the same meaning as in article fourteen-c of this
chapter.
(21) "Tax" includes, within its meaning, interest, additions
to tax and penalties, unless the intention to give it a more
limited meaning is disclosed by the context.
(22) "Taxpayer" means any person liable for any tax, interest,
additions to tax or penalty under the provisions of this article.
(23) "Tractor truck" means every motor carrier designed and
used primarily for drawing other vehicles and not constructed as to
carry a load other than a part of the weight of the vehicle and
load so drawn.
(24) "Truck" means every motor carrier designed, used or
maintained primarily for the transportation of property and having
more than two axles.
§11-14A-3a. Leased motor carriers, household goods carriers, and
independent contractors.
(a) Motor carriers.
(1) Motor carriers leased for less than thirty days. -- A
lessor of motor carriers who is regularly engaged in the business
of leasing or renting motor carriers with or without drivers to
licensees or other lessees for a period of less than thirty days is
primarily liable for payment of the taxes and fees imposed by this
article unless:
(A) The lessor has a written lease contract that designates
the lessee as the party liable for reporting and paying the tax
imposed by this article; and
(B) If the lessee is subject to article fourteen-b of this
chapter, the lessor has a copy of the lessee's license issued thereunder and the license is valid for the term of the lease.
(2) Motor carriers leased for thirty days or more. -- A
licensee or other lessee who leases or rents a motor carrier with
or without drivers for a period of thirty days or more is primarily
liable for payment of the taxes and fees imposed by this article.
(b) Household goods carriers.
(1) Each household goods carrier operating only in West
Virginia that uses its own motor carriers or that leases a motor
carrier or motor carriers, with or without drivers, from
independent contractors or others under intermittent leases for
periods of thirty days or more is liable for the tax imposed by
this article: Provided, That the lessor is liable for the tax
imposed by this article when the lease periods are for less than
thirty days.
(2) Each household goods carrier subject to article fourteen-b
of this chapter that uses its own motor carriers or that leases a
motor carrier or motor carriers, with or without drivers, from
independent contractors or others under intermittent leases is
liable for the tax imposed by this article when the motor carrier
is operated under the lessee's jurisdictional operating authority:
Provided, That when the motor carrier is operated under the
lessor's jurisdictional operating authority, the lessor is liable
for the tax imposed by this article.
(c) Independent contractors.
(1) An independent contractor operating only in West Virginia,
when leased to a person also operating only in West Virginia, and the lease is for a period of less than thirty days is liable for
the tax imposed by this article: Provided, That if the lease is
for a period of thirty days or more, the lessee is responsible for
the tax imposed by this article.
(2) A person subject to article fourteen-b of this chapter
that leases an independent contractor for thirty days or more is
responsible for the tax imposed by this article unless there is a
written contract stating that the lessor is liable for the tax
imposed by this article.
(d) The provision of subsections (a), (b) and (c) of this
section shall govern the primary liability of lessors and licensees
or other lessees of motor carriers. If a lessor or licensee or
other lessee primarily liable fails, in whole or in part, to
discharge his or her liability, the failing party and other party
to the transaction, whether denominated as a lessor, licensee or
other lessee, is jointly and severally responsible and liable for
compliance with the provisions of this article and for payment of
any tax or fees due under this article: Provided, That the
aggregate of taxes and fees collected by the commissioner shall not
exceed the total amount or amounts of taxes and fees due under this
article on account of the transactions in question plus interest,
additions to tax, other penalties and costs, if any, that may be
imposed: Provided, however, That no person, other than the person
primarily responsible for the taxes and fees under this article,
may be assessed penalties or additions to tax resulting from the
failure of the party primarily liable for taxes and fees to pay: Provided further, That once the other party to the transaction who
is not primarily liable for the taxes under this article but who is
made jointly and severally liable under this subsection for taxes
is assessed for those taxes and fees and fails to discharge the
assessment within the time prescribed therefor, or within thirty
days after receiving the assessment if no time is so prescribed,
nothing herein shall prohibit the commissioner from imposing
additions to tax or penalties upon that person for failing to pay
the assessment issued in his or her name.
§11-14A-4. Computation of tax.
Computation of the tax is based upon the amount of gallons of
motor fuel used in the operation of any motor carrier within this
state and shall be calculated by dividing the total number of
taxable miles traveled in this state during the reporting period by
the average fuel consumption factor calculated for that same
reporting period.
§11-14A-5. Reports of carriers; joint reports; records;
examination of records; subpoenas and witnesses.
(a) Every taxpayer subject to the tax imposed by this article,
or by article fourteen-c of this chapter, except as provided, in
subsections (b) and (c) of this section, shall on or before the
last day of January, April, July and October of every calendar year
make to the commissioner reports of its operations during the
quarter ending the last day of the preceding month as the
commissioner requires and other reports from time to time as the
commissioner considers necessary. For good cause shown, the commissioner may extend the time for filing the reports for a
period not exceeding thirty days.
(b) Every motor carrier which operates exclusively in this
state during a fiscal year that begins on the first day of July of
one calendar year and ends on the thirtieth day of June of the next
succeeding calendar year and during the fiscal year consumes in its
operation only motor fuel upon which the tax imposed by article
fourteen of this chapter has been paid shall, in lieu of filing the
quarterly reports required by subsection (a) of this section, file
an annual report for the fiscal year on or before the last day of
July each calendar year: Provided, That effective the first day of
January, two thousand four, every motor carrier which operates
exclusively in this state during a fiscal year that begins on the
first day of July of one calendar year and ends on the thirtieth
day of June of the next succeeding calendar year and during the
fiscal year consumes in its operation only motor fuel upon which
the tax imposed by article fourteen-c of this chapter has been paid
shall, in lieu of filing the quarterly reports required by
subsection (a) of this section, file an annual report for the
fiscal year on or before the last day of July of each calendar
year: Provided, however, That effective the first day of January,
two thousand five, every motor carrier which operates exclusively
in this state and during the calendar year consumes in its
operation only motor fuel upon which the tax imposed by article
fourteen-c of this chapter has been paid shall, in lieu of filing
the quarterly reports required by subsection (a) of this section, file before the last day of January an annual report for the
calendar year ending on the last day of the immediately preceding
December. For good cause shown, the commissioner may extend the
time for filing the report for a period of thirty days.
(c) Two or more taxpayers regularly engaged in the
transportation of passengers on through buses on through tickets in
pool operation may, at their option and upon proper notice to the
commissioner, make joint reports of their entire operations in this
state in lieu of the separate reports required by subsection (a) of
this section. The taxes imposed by this article are calculated on
the basis of the joint reports as though the taxpayers were a
single taxpayer; and the taxpayers making the reports are jointly
and severally liable for the taxes shown to be due. The joint
reports shall show the total number of miles traveled in this state
and the total number of gallons of motor fuel purchased in this
state by the reporting taxpayers. Credits to which the taxpayers
making a joint return are entitled are not allowed as credits to
any other taxpayer; but taxpayers filing joint reports shall permit
all taxpayers engaged in this state in pool operations with them to
join in filing joint reports.
(d)(1) A taxpayer shall keep records necessary to verify the
total miles traveled within and without the state of West Virginia,
the number of gallons of motor fuel used and purchased within and
without West Virginia and any other records which the commissioner
by regulation may prescribe. A finding by the tax commissioner on
the basis of the best information available that the taxpayer has failed to maintain records prescribed by the tax commissioner, or
that the taxpayer refused to make available upon written request
the records prescribed by the tax commissioner, is sufficient cause
for the commissioner of motor vehicles to revoke the identification
markers issued to the taxpayer: Provided, That upon request of the
taxpayer, a hearing shall be provided, under the authority of
articles ten and ten-a of this chapter prior to the revocation
becoming final.
(2) If the tax commissioner determines that a taxpayer used an
incorrect average fuel consumption factor resulting in the filing
of incorrect returns, the tax commissioner shall determine the
correct average fuel consumption factor, calculate the correct
amount of tax due under this article, and under the authority of
article ten of this chapter issue an assessment for the amount of
tax, interest, penalties and additions due and owing: Provided,
That absent adequate information to the contrary, the average fuel
consumption factor is four miles per gallon (one and seven-tenths
kilometers per liter).
(e) In addition to the tax commissioner's powers set forth in
sections five-a and five-b, article ten of this chapter, the
commissioner may inspect or examine the records, books, papers,
storage tanks, meters and any equipment records or records of
highway miles traveled within and without West Virginia and the
records of any other person to verify the truth and accuracy of any
statement or report to ascertain whether the tax imposed by this
article has been properly paid.
(f) In addition to the tax commissioner's powers set forth in
sections five-a and five-b, article ten of this chapter, and as a
further means of obtaining the records, books and papers of a
taxpayer or any other person and ascertaining the amount of taxes
and reports due under this article, the commissioner has the power
to examine witnesses under oath; and if any witness shall fail or
refuse at the request of the commissioner to grant access to the
books, records and papers, the commissioner shall certify the facts
and names to the circuit court of the county having jurisdiction of
the party and the court shall thereupon issue a subpoena duces
tecum to the party to appear before the commissioner, at a place
designated within the jurisdiction of the court, on a day fixed.
§11-14A-6. Payment of tax.
The tax hereby imposed by this article shall be paid by each
taxpayer annually to the tax commissioner on or before the last day
of January of each calendar year, and calculated upon the amount of
motor fuel used as fuel in the operation of each motor carrier
operated or caused to be operated by the taxpayer during the year
ending with the last day of the preceding month: Provided, That
each person subject to the provisions of article fourteen-b of this
chapter shall pay quarterly to the tax commissioner on or before
the last day of January, April, July and October of each calendar
year, the correct amount of motor fuel use taxes imposed by each
state on motor carriers using the highways of those states during
the quarter ending with the last day of the preceding month, the
taxes to be calculated in accordance with the instructions provided by those respective states.
§11-14A-7. Identification markers; fees; civil penalties; criminal
penalties.
(a) Registration of motor carriers. -- No person may operate,
or cause to be operated, in this state any motor carrier subject to
this article without first securing from the commissioner of motor
vehicles an identification marker for each motor carrier, except as
provided in subsection (b) or (c) of this section. A person who
operates, or causes to be operated, in this state more than one
motor carrier may obtain an identification marker for each motor
carrier: Provided, That such person may also obtain an additional
number of identification markers equal to twenty-five percent of
the total number of motor carriers in the person's fleet of motor
carriers that require identification markers.
(1) Each identification marker for a particular motor carrier
shall bear a number. This identification marker shall be displayed
on the driver's side of the motor carrier as required by the
commissioner of motor vehicles: Provided, That the identification
markers issued under the authority of article fourteen-b of this
chapter shall be displayed on the exterior portion of both sides of
the motor carrier.
(2) The tax commissioner, after issuance of any identification
marker to a motor carrier, shall cause an internal cross-check to
be made in his or her office as to any state tax which he or she
administers, to aid in determination of any noncompliance in
respect to failure to file returns or payment of tax liabilities. If the tax commissioner determines the motor carrier is not in
compliance with the requirement to file any tax return or pay any
tax liability required by any tax governed by article ten of this
chapter, the identification markers issued to that motor carrier by
the commissioner of motor vehicles shall be revoked until all the
returns are filed and payments made.
(3) The identification markers provided for in this section
are valid for a period of one year, ending the thirty-first day of
December each year. A fee of five dollars shall be paid to the
commissioner of motor vehicles for issuing each identification
marker which is reasonably related to the commissioner of motor
vehicles' costs of issuing each identification marker.
(4) All tax or returns due under this article shall be paid or
returns filed before the issuance of a new identification marker.
If the tax commissioner determines that a person subject to the
requirements of this article has failed to file any return or pay
the taxes imposed by this article, the commissioner of motor
vehicles shall revoke each identification marker previously issued
to that person and shall refuse to issue a new identification
marker to that person until all returns are filed and all taxes
imposed by this article paid.
(5) Each identification marker shall be removed from a motor
carrier:
(A) Prior to the motor carrier being sold or traded in for a
different motor carrier;
(B) When a motor carrier registered under subsection (a) of this section ceases doing business in this state, or requests
cancellation of the account authorized under article fourteen-b of
this chapter; or
(C) When the identification marker issued under subsection (a)
of this section is revoked.
(6) Each identification marker so removed and any additional
identification markers issued under the authority of subsection (a)
of this section shall within thirty days of removal be returned to
the commissioner of motor vehicles.
(b) Trip permit. -- A motor carrier that does not have a motor
carrier identification marker issued under subsection (a) of this
section may obtain a trip permit which authorizes the motor carrier
specified therein to be operated in this state without an
identification marker for a period of not more than ten consecutive
days beginning and ending on the dates specified on the face of the
permit: Provided, That if a motor carrier's identification marker,
whether issued by this state or another jurisdiction, has been
revoked, the motor carrier may not be issued a trip permit. The
fee for this permit is twenty-four dollars.
(1) Fees for trip permits shall be in lieu of the tax
otherwise due under this article on account of the vehicles
specified in the permit operating in this state during the period
of the permit, and no reports of mileage shall be required with
respect to that vehicle.
(2) A trip permit shall be carried in the cab of the motor
vehicle for which it was issued at all times while it is in this state.
(3) A trip permit may be obtained from the commissioner of
motor vehicles or from wire services authorized by the commissioner
to issue trip permits. The cost of the telegram or similar
transmissions is the responsibility of the motor carrier requesting
the trip permit.
(c) Transportation permit. -- The commissioner of motor
vehicles is hereby authorized to grant, in his or her discretion,
a special permit to a new motor vehicle dealer for use on new motor
vehicles driven under their own power from the factory or
distributing place of a manufacturer, or other dealer, to a place
of business of the new vehicle dealer, or from the place of
business of a new vehicle dealer to a place of business of another
dealer, or when delivered from the place of business of the new
vehicle dealer to the place of business of a purchaser to whom
title passes on delivery. A transporter's permit must be carried
in the cab of the motor vehicle being transported. A person to
whom a transporter's permit is issued shall file the reports
required by section five of this article and pay any tax due. The
fee for a transporter's permit is fifteen dollars and a
transporter's permit is valid for the fiscal year for which it is
issued unless surrendered or revoked by the tax commissioner.
(d) Civil penalties. -- Upon a finding by the tax commissioner
based upon the best evidence available that a taxpayer, whether the
owner, licensee or lessee, or the employee, servant or agent
thereof, has performed any of the following acts, the commissioner of motor vehicles shall revoke and refuse to renew the taxpayer's
identification marker or trip permit until the cause for the
revocation is corrected:
(1) Maintains inaccurate or incomplete records;
(2) Fails to respond to written requests for information;
(3) Fails to make records available upon request;
(4) Falsified application for identification markers or trip
permit;
(5) Has a prior revocation of identification markers in
another jurisdiction without reinstatement in that jurisdiction;
(6) Is delinquent in payment of taxes, but only after the
assessment of those taxes is finalized;
(7) Transfers or sells an identification marker or trip
permit; or
(8) Receives or purchases from any person not the commissioner
of motor vehicles an identification marker or trip permit.
Upon request of the taxpayer, a hearing shall be provided,
under the authority of articles ten and ten-a of this chapter prior
to the revocation becoming final.
(e) Criminal penalties. -
(1) Any person, whether the person be the owner, licensee or
lessee, or the employee, servant or agent thereof, who operates or
causes to be operated in this state, a motor carrier in violation
of this section, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than fifty nor more than five
hundred dollars; and each day the violation continues or reoccurs constitutes a separate offense.
(2) Any person, whether the person be the owner, licensee or
lessee, or the employee, servant or agent thereof, who transfers or
sells an identification marker or trip permit is guilty of a felony
and, upon conviction thereof, shall be fined not less than five
thousand dollars nor more than ten thousand dollars.
(3) Any person, whether the person be the owner, licensee or
lessee, or the employee, servant or agent thereof, who receives or
purchases from any person not the commissioner of motor vehicles an
identification marker or trip permit is guilty of a felony and,
upon conviction thereof, shall be fined not less than five thousand
dollars nor more than ten thousand dollars.
(f) Notwithstanding the provisions of section five-d, article
ten of this chapter, the tax commissioner shall deliver to or
receive from the commissioner of the division of motor vehicles and
the commissioner of the public service commission, the information
contained in the application filed by a motor carrier for a trip
permit under this section, when the information is used to
administer a combined trip permit registration program for motor
carriers operating in this state, which program may be administered
by one agency or any combination of the three agencies, as embodied
in a written agreement executed by the head of each agency
participating in the program. The agencies have authority to enter
into an agreement notwithstanding any provision of this code to the
contrary; and the fee for a combined trip permit is twenty-four
dollars, which shall be in lieu of the fee set forth in subsection (b) of this section.
§11-14A-9. Credits against tax.
Every taxpayer subject to the road tax imposed in this article
is entitled to a credit on the tax equivalent to the amount of tax
per gallon of gasoline or special fuel imposed by article fourteen
of this chapter on all gasoline or special fuel purchased by the
taxpayer for fuel in each motor carrier which it operates or causes
to be operated within this state, and upon which gasoline or
special fuel the tax imposed by the laws of this state has been
paid: Provided, That the credit is not allowed for any gasoline or
special fuel taxes for which any taxpayer has applied or received
a refund of gasoline or special fuel tax under article fourteen of
this chapter: Provided, however, That effective the first day of
January, two thousand four, every taxpayer subject to said road tax
is entitled to a credit against the tax equivalent to the amount of
the flat rate of tax per gallon of motor fuel imposed by article
fourteen-c of this chapter on all motor fuel purchased by the
taxpayer and used as motor fuel in motor carriers which it operates
or causes to be operated within this state, and upon which the
motor fuel tax imposed by the laws of this state has been paid:
Provided further, That no credit is allowed for any motor fuel
taxes for which the taxpayer has applied or received a refund of
motor fuel tax under article fourteen-c of this chapter. Evidence
of the payment of the tax in the form as required by the
commissioner shall be furnished by the taxpayer claiming the credit
allowed in this section. When the amount of the credit provided for in this section exceeds the amount of the tax for which the
taxpayer is liable in the same quarter, the excess, if less than
twenty dollars, shall be used as a credit on the tax for which the
taxpayer would be otherwise liable for any of the eight succeeding
quarters: And provided further, That if the taxpayer has ceased to
do business in this state under either this article or article
fourteen-b of this chapter, the amount of the credit shall be
refunded in accordance with section eleven of this article: And
provided further, That if the amount of the credit provided in this
section exceeds by twenty dollars or more the amount of the tax for
which the taxpayer is liable in the same quarter, the entire
amount, upon the written request by the taxpayer, shall be allowed
as a credit on the tax for which the taxpayer would otherwise be
liable for any of the succeeding eight quarters: And provided
further, That any credit not used within the eight succeeding
quarters after the credit is established shall be forfeited.
§11-14A-11. Refunds authorized; claim for refund and procedure
thereon; surety bonds and cash bonds.
The commissioner is hereby authorized to refund from the funds
collected under the provisions of this article and article fourteen
of this chapter, the amount of the credit accrued for gallons of
motor fuel purchased in this state but consumed outside of this
state, if the taxpayer by duly filed claim requests the
commissioner to issue a refund and if the commissioner is satisfied
that the taxpayer is entitled to the refund and that the taxpayer
has not applied for a refund of the tax imposed by article fourteen of this chapter: Provided, That effective the first day of
January, two thousand four, the refunds authorized in this section
shall be made from the funds collected under the provisions of this
article and from the flat rate of tax imposed under section five,
article fourteen-c of this chapter: Provided, however, That unless
the taxpayer has ceased doing business in this state under either
this article or article fourteen-b of this chapter, any amount less
than twenty dollars may not be refunded but shall be used as a
credit in accordance with the provisions of section nine of this
article: Provided further, That the commissioner shall not approve
a claim for refund when the claim for a refund is filed after
thirteen months from the close of the quarter in which the tax was
paid or the credit, as provided in section nine of this article,
was allowed: And provided further, That effective the first day of
April, two thousand four, the commissioner shall not approve a
claim for refund when the claim for refund is filed after eight
quarters from the close of the quarter in which the tax was paid or
the credit, as provided in section nine of this article, was
allowed: And provided further, That any refund or credit due a
taxpayer subject to article fourteen-b of this chapter shall be
withheld if the taxpayer is delinquent on any fuel taxes due any
other state: And provided further, That the credit or refund shall
in no case be allowed to reduce the amount of tax to be paid by a
taxpayer below the amount due as tax on gasoline or special fuel
used as fuel in this state as provided by article fourteen of this
chapter: And provided further, That effective the first day of January, two thousand four, the credit or refund shall in no case
be allowed to reduce the amount of tax to be paid by a taxpayer
below the amount due as tax on motor fuel used in this state as
provided by article fourteen-c of this chapter. The right to
receive any refund under the provisions of this article is not
assignable and any attempt at assignment thereof is void and of no
effect. The claim for refund or credit shall also be subject to
the provisions of section fourteen, article ten of this chapter.
§11-14A-13. Disposition of tax collected.
All tax collected under the provisions of this article shall
be paid into the state treasury and shall be used only for the
purpose of construction, reconstruction, maintenance and repair of
highways, and payment of the interest and sinking fund obligations
on state bonds issued for highway purposes: Provided, That the
taxes collected under the provisions of this article but for the
purposes of article fourteen-b of this chapter shall be disposed of
in accordance with the provisions of section eleven, article
fourteen-b of this chapter.
Unless necessary for the bond requirements, five fourteenths
of the tax collected under the provisions of this article shall be
used for feeder and state local service highway purposes.
§11-14A-16. Civil penalty for failure to file required return when
no tax due.
In the case of any failure to make or file a return when no
tax is due, as required by this article, on the date prescribed
therefor, unless it can be shown that the failure is due to reasonable cause and not due to willful neglect, there shall be
collected a civil penalty of fifty dollars or ten percent of the
net tax due, whichever is greater, for each month of the failure or
fraction thereof. The civil penalty prescribed under this section
shall be assessed, collected and paid in the same manner as the
motor carrier road tax.
§11-14A-27. General procedure and administration.
Each and every provision of the "West Virginia Tax Procedure
and Administration Act" set forth in article ten of this chapter
shall apply to the motor carrier road tax imposed by this article
with like effect as if said act were applicable only to the motor
carrier road tax imposed by this article and were set forth with
respect thereto in extenso in this article: Provided, That for
purposes of the tax imposed by this article and notwithstanding
sections seventeen and seventeen-a, article ten of this chapter,
the annual rate of interest in effect at the time of assessment or
when the payment of delinquent tax is made shall be one percent per
month, calculated for each month or part thereof from the date
prescribed for payment to the date the payment is made.
§11-14A-28. Effective date.
The provisions of this article take effect on the first day of
April, one thousand nine hundred eighty-nine: Provided, That the
amendments to this article made during the two thousand four
legislative session shall be effective the first day of July, two
thousand four.
ARTICLE 14B. INTERNATIONAL FUEL TAX AGREEMENT.
§11-14B-1. Purpose.
This article is enacted to conform laws of this state relating
to registration of motor carriers and reporting and payment of
motor fuel use taxes with requirements of the "Intermodal Surface
Transportation and Efficiency Act of 1991", Public Law 102-240.
More specifically:
(1) Section 4005 of said act requires establishment of a
single state registration system for motor carriers. Under this
system, a motor carrier is required to register annually only with
one state. Single state registration is considered to satisfy the
registration requirements of all other states.
(2) Section 4008 of said act mandates state participation in
the international registration plan and adoption of the
international fuel tax agreement by providing that after the
thirtieth day of September, one thousand nine hundred ninety-six:
(A) No state, other than a state participating in the
international registration plan, may establish, maintain or enforce
any motor carrier registration law, regulation or agreement which
limits the operation of any motor carrier within its borders which
is not registered under the laws of the state if the motor carrier
is registered under the laws of any other state participating in
the international registration plan;
(B) No state may establish, maintain or enforce any law or
regulation which has fuel use tax reporting requirements including
tax reporting forms which are not in conformity with the
international fuel tax agreement; and
(C) No state may establish, maintain or enforce any law or
regulation which provides for the payment of a fuel use tax unless
the law or regulation is in conformity with the international fuel
tax agreement with respect to collection of tax by a single base
jurisdiction and proportional sharing of fuel use taxes charged
among the states in which a motor carrier is operated.
§11-14B-2. Definitions.
For purposes of this article:
(a) "Base jurisdiction" means the member jurisdiction where a
motor carrier is based for vehicle registration purposes and:
(1) Where the operational control and operational records of
the licensee's motor carriers are maintained or can be made
available; and
(2) Where some travel is accrued by motor carriers within the
fleet.
(b) "Fuel use tax" means a tax imposed on or measured by the
consumption of fuel in a motor carrier.
(c) "International fuel tax agreement" means the international
agreement for the collection and distribution of fuel use taxes
paid by motor carriers, developed under the auspices of the
national governors' association: Provided, That this term includes
amendments to the international fuel tax agreement.
(d) "International registration plan" means the interstate
agreement for the apportionment of vehicle registration fees paid
by motor carriers developed by the American association of motor
vehicle administrators.
(e) "Licensee" means a person who holds an uncanceled license
issued by a base jurisdiction in accordance with the international
fuel tax agreement.
(f) "Motor carrier":
(1) As used with respect to the international registration
plan, has the meaning the term "apportionable vehicle" has under
that plan; and
(2) As used with respect to the international fuel tax
agreement, has the meaning the term "qualified motor vehicle" has
under that agreement.
(g) "Motor fuel" means motor fuel as defined in article
fourteen-c of this chapter.
(h) "Motor fuel use taxes imposed by this state" means the
aggregate amount of taxes, expressed in cents per gallon, imposed
by this state, under articles fourteen-a and fifteen-a of this
chapter, on motor fuel consumed in this state by a motor carrier.
(i) "State" means any of the forty-eight contiguous states and
the District of Columbia, and any other jurisdiction which imposes
a motor fuel use tax and is a member of the international fuel tax
agreement.
§11-14B-3. Registration of motor carriers.
(a) To facilitate adoption of the single point registration
system in this state, the powers, duties and responsibilities of
the tax commissioner under section seven, article fourteen-a of
this chapter, are transferred to the commissioner of the division
of motor vehicles effective with the registration year that begins the first day of July, one thousand nine hundred ninety-five:
Provided, That no identification marker or trip permit is required
under section seven, article fourteen-a of this chapter of a motor
carrier based in another state which is a member of the
international fuel tax agreement.
(b) Beginning with the registration year specified in
subsection (a) of this section, the commissioner of motor vehicles
shall furnish the tax commissioner with motor carrier registration
information and information pertaining to the trip permit
registration program for use by the tax commissioner in collecting
motor fuel taxes.
(c) Also beginning with the registration year specified in
subsection (a) of this section, the tax commissioner shall furnish
the commissioner of motor vehicles with the taxpayer identity
information for any motor carrier which fails to file required
returns or report for, or to pay, the motor fuel use taxes imposed
by this state. This information may give the commissioner of motor
vehicles sufficient cause to revoke or refuse to renew the
identification marker previously issued under section seven,
article fourteen-a of this chapter.
(d) Information exchanged pursuant to this section shall be
used solely for tax administration and motor carrier registration
purposes and treated as confidential information for all other
purposes as provided in article ten of this chapter.
§11-14B-5. Scope of agreement.
An international fuel tax agreement may provide for:
(a) Determining the base jurisdiction of motor carriers;
(b) Making and retaining of records by motor carriers;
(c) Auditing the books and records of motor carriers and
auditing procedures;
(d) Exchanging information for purposes of motor fuel use tax
administration and collection;
(e) Determining persons eligible for a motor carrier tax
license or registration;
(f) Defining qualified motor carriers;
(g) Determining if or when bonding is required;
(h) Specify reporting requirements and periods;
(i) Specifying uniform penalty and interest rates for late
reporting and payment of motor fuel use taxes;
(j) Determining methods for collecting and forwarding of motor
fuel use taxes and penalties to another jurisdiction; and
(k) Any other provision which the parties to the agreement
believe will facilitate administration of the agreement and
collection of motor fuel use taxes from interstate motor carriers.
§11-14B-6. Effect of international fuel tax agreement on the
administration or application of motor fuel use taxes
imposed by this state.
(a) Even though the state of West Virginia is a member of the
international fuel tax agreement, the state of West Virginia
retains substantive authority to determine when the motor fuel use
taxes imposed by this state apply, the applicable rate of tax, the
applicable interest rate, and any other substantive tax issues related to the administration or application of those taxes.
(b) The provisions of article fourteen-a of this chapter shall
apply to every licensee that is subject to the provisions of this
article: Provided, That, the amount of international fuel tax
agreement taxes reported as due and owing by a motor carrier based
in this state shall for purposes of articles nine and ten of this
chapter be treated as taxes due and owing to the state of West
Virginia: and,
(c) Every motor carrier that is not a licensee, every motor
carrier based in another state which is not a member of the
international fuel tax agreement and every West Virginia intrastate
motor carrier shall continue to be subject to the provisions of
article fourteen-a of this chapter, and any subsequent amendments
thereto.
§11-14B-10. Audits.
(a) The international fuel tax agreement provides that each
base jurisdiction audit the records of motor carriers based in that
jurisdiction to determine if the motor fuel taxes due all other
base jurisdictions are properly reported and paid. When a base
jurisdiction performs a motor fuel use tax audit on an interstate
motor carrier based in that jurisdiction, it shall forward the
findings of the audit to each base jurisdiction in which the
interstate motor carrier has taxable use of motor fuels.
(b) The tax commissioner is authorized to participate in
auditing motor carriers in other base jurisdictions to determine if
the motor fuel taxes due this state are properly reported and paid: Provided, That any other base jurisdiction may participate with the
tax commissioner in auditing motor carriers based in this state to
determine if motor fuel taxes due that base jurisdiction are
properly reported and paid.
(c) No international fuel tax agreement entered into under
this article may preclude the tax commissioner from auditing the
records of any person covered by the provisions of this article.
§11-14B-14. General procedure and administration.
(a) All of the provisions of the "West Virginia Tax Procedure
and Administration Act" set forth in article ten of this chapter,
including amendments thereto, apply to motor fuel taxes collected
under an international fuel tax agreement.
(b) In the event of any inconsistency between the provisions
of article ten of this chapter and the terms of the international
fuel tax agreement, the terms of said article ten control.
Email
Webmaster | © 2024 West Virginia Legislature **
