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Introduced Version House Bill 4567 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 4567


(By Delegates Craig, Morgan, Leach, Kominar,

Amores, H. White and R. M. Thompson)


[Introduced February 20, 2004 ; referred to the

Committee on Finance.]



A BILL 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 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 carriers; stating method of computing tax; stating time for payment of tax; requiring identification markers and providing penalties when carrier acts contrary to law; use of credit against motor carrier road tax; repealing requirement for surety bond; authorizing disposition of taxes under article fourteen-b, chapter eleven of this code; limiting penalty for failure to file; authorizing interest rate on delinquent motor carrier road tax to be one percent per month; establishing effective date of amendments; conforming article fourteen-b of chapter eleven of this code to federal law; defining certain international fuel tax agreement terms; establishing identification marker requirements; establishing application of article fourteen-b, 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.
(1) (2) "Commissioner" or "tax commissioner" means the tax commissioner of the state of West Virginia or his or her duly authorized agent.
(2) (3) "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.
(4) "Fleet" means, for purposes of administering the tax imposed by this article, one or more motor carriers operated by the same person.
(3) (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 effective the first day of January, two thousand four in the event there is a question as to the proper classification of any product, "gasoline" shall have has the same meaning as in article fourteen-c of this chapter.
(4) (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.
(5) (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 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.
(6) (10) "Lease" means any oral or written contract for valuable consideration granting the use of a motor carrier.
(7) (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. 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.
(8) (12) "Motor fuel" means motor fuel as defined in article fourteen-c of this chapter effective the first day of January, two thousand four.
(9) (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.
(10) (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 means 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.
(11) (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.
(12) (16) "Purchase" means and includes any acquisition of ownership of property or of a security interest for a consideration.
(13) (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.
(14) (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.
(15) (19) "Sale" means any transfer, exchange, gift, barter or other disposition of any property or security interest for a consideration.
(16) (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 effective the first day of January, two thousand four 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.
(17) (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.
(18) (22) "Taxpayer" means any person liable for any tax, interest, additions to tax or penalty under the provisions of this article.
(19) (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.
(20) (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.
(a) (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.
(b) (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 lessors 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 shall be liable for the tax imposed by this article: Provided, That if the lease is for a period of thirty days or more, the lessee shall be 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 shall be 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.
(b) (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 liability, such failing party and other party to the transaction, whether denominated as a lessor, licensee or other lessee, shall be 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 such 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 such taxes and fees to pay: Provided further, That once such 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 such taxes is assessed for those taxes and fees and fails to discharge such assessment within the time prescribed therefor, or within thirty days after receiving such 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 name.
§11-14A-4. Computation of tax.
Computation of the tax is based upon the amount of gallons of gasoline or special motor fuel used in the operation of any motor carrier within this state and shall be in such proportion of the total amount of such gasoline or special fuel used in any person's operations within and without this State as the total number of miles traveled within this State bears to the total number of highway miles traveled within and without this State 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 twenty-fifth 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 gasoline or special 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), 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), 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 highway miles traveled in this state and the total number of gallons of gasoline or special 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 highway total miles traveled within and without the state of West Virginia, the number of gallons of gasoline and special 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 shall be 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 quarterly annually to the tax commissioner on or before the last day of January April, July and October of each calendar year, and calculated upon the amount of gasoline or special motor fuel used as fuel in the operation of each motor carrier operated or caused to be operated by said taxpayer during the quarter 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, such 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 such motor carrier, except as provided in subsection (b) or (c) of this section. 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. The commissioner, after issuance of any identification marker to a motor carrier, shall cause an internal cross-check to be made in his office as to any state tax which he administers, to aid in determination of any noncompliance in respect to failure to file returns or payment of tax liabilities. The identification markers herein provided for shall be valid for the period of one year, ending December thirty-first of each year. A fee of five dollars shall be paid to the commissioner for issuing each identification marker which is reasonably related to the commissioner's costs of issuing such identification. All tax or reports due under this article shall be paid or reports filed before the issuance of a new identification marker. Failure by a taxpayer to file the returns or pay the taxes imposed by this article shall give cause to the commissioner to revoke or refuse to renew the identification marker previously issued. 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.
(3) The identification markers herein provided for shall be valid for the 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 such identification.
(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.
(D) 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 such 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 shall be 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 or from wire services authorized by the commissioner to issue such permits. The cost of the telegram or similar transmissions shall be the responsibility of the motor carrier requesting the trip permit.
(c) Transportation permit. -- The commissioner is hereby authorized to grant, in his 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 such transporter's permit shall be 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, as applicable, until the cause for the revocation is corrected:
(1) Maintains inaccurate or incomplete records;

(2) Failure to respond to written requests for information;
(3) Failure to make records available upon request;
(4) Falsifying application for identification markers or trip permit;
(5) Prior revocation of identification markers in another jurisdiction without reinstatement in that jurisdiction;
(6) 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.
(d) (e) Criminal penalty penalties. --
(1) Any person, whether such 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 such violation continues or reoccurs shall constitute a separate offense.
(2) Any person, whether such 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 such 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.
(e) (f) Notwithstanding the provisions of section five-d, article ten of this chapter, the 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. Such agencies have authority to enter into such an agreement notwithstanding any provision of this code to the contrary; and the fee for such combined trip permit shall be 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 herein imposed 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 the road tax herein imposed 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 upon written request by the taxpayer, be allowed as used as a credit on the tax for which the taxpayer would be otherwise liable for any of the four eight succeeding quarters: And provided further, That if the taxpayer is ceasing 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.

(a) 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 gasoline or special 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 for in section nine of this article, was allowed: Provided, 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 a 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: the refund shall not be made until after audit of the claimant's records by the commissioner or until after a continuous surety bond or cash bond has been furnished by the claimant, as hereinafter provided in an amount fixed by the commissioner, conditioned to pay all road taxes due hereunder: 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.
A taxpayer shall furnish a continuous surety bond or a cash bond in an amount fixed by the commissioner, but the amount shall not be less than the total refunds due or to be paid within one year: Provided, That if a continuous surety bond is filed, an annual notice of renewal shall be filed thereafter: Provided, however, That if the continuous surety bond includes the requirement that the commissioner is to be notified of cancellation at least sixty days prior to the surety bond being canceled, an annual notice of renewal is not required. The bond, whether a continuous surety bond or a cash bond, is conditioned upon compliance with the requirements of this article and shall be payable to this state in the form required by the commissioner.
(b) The surety must be authorized to engage in business within this state. The cash bond or the continuous surety bond is 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 or 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 carrier road tax or the motor fuel excise tax imposed by article fourteen-c of this chapter. Any surety on a continuous surety bond furnished hereunder shall be relieved, released and discharged from all liability accruing on the bond after the expiration of sixty days from the date the surety shall have lodged, by certified mail, with the commissioner a written request to be discharged. Discharge from a continuous surety bond shall not relieve, release or discharge the surety from liability already accrued, or which shall accrue before the expiration of the sixty-day period. Whenever any surety seeks discharge as provided in this section, 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 such other bond results in no refund being paid until after completion of an audit of the taxpayer's records as provided in subsection (a) of this section and the commissioner may cancel any registration card and identification marker previously issued to the person.
(c) Any taxpayer that has furnished a cash bond shall be relieved, released and discharged from all liability accruing on the cash bond after the expiration of sixty days from the date the taxpayer shall have lodged, by certified mail, with the commissioner a written request to be discharged and the amount of the cash bond refunded: Provided, That the commissioner may retain all or part of the bond until the commissioner may perform an audit of the taxpayer's business or three years, whichever first occurs. Discharge from the cash bond shall not relieve, release or discharge the taxpayer from liability already accrued, or which shall accrue before the expiration of the sixty-day period. Whenever any taxpayer seeks discharge as provided in this section, 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 another bond results in no refund being paid until after completion of an audit of the taxpayer's records as provided in subsection (a) of this section.
§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, 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 such 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 such failure is due to reasonable cause and not due to willful neglect, there shall be collected a civil penalty of twenty-five fifty dollars or ten percent of the net tax due, whichever is greater, for each month of such 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 fourteen-a with like effect as if said act were applicable only to such motor carrier road tax imposed by this article fourteen-a and were set forth with respect thereto in extenso in this article fourteen-a: 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 act article shall 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 that act requires establishment of a single state registration system for commercial motor carriers. Under this system, a motor carrier is required to register annually only with one state. Single state registration is deemed to satisfy the registration requirements of all other states.
(2) Section 4008 of that 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 commercial motor vehicle carrier registration law, regulation or agreement which limits the operation of any commercial motor vehicle carrier within its borders which is not registered under the laws of the state if the vehicle 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 such law or regulation is in conformity with the international fuel tax agreement with respect to collection of such tax by a single base state jurisdiction and proportional sharing of such taxes charged among the states in which a commercial motor vehicle 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.
(a) (b) "Commercial motor vehicle" "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.
(b) (c) "Fuel use tax" means a tax imposed on or measured by the consumption of fuel in a motor vehicle carrier.
(c) "Gasoline" has the same meaning as the term is defined in article fourteen-c of this chapter.
(d) "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.
(e) "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.
(f) "Licensee" means a person who holds an uncanceled license issued by a base jurisdiction in accordance with the international fuel tax agreement.
(g) "Motor fuel" means motor fuel as defined in article fourteen-c of this chapter.
(f) (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 gasoline or special motor fuel consumed in this state by a motor carrier.
(g) "Special fuel" has the same meaning as the term is defined in article fourteen-c of this chapter.
(h) (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 registration identification marker or trip permit shall be 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 shall be 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 state 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 vehicles 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) The reporting requirements provided in the international fuel tax agreement shall take precedence over the reporting requirements provided in article fourteen-a of this chapter.
(b) Where the international fuel tax agreement and the provisions of article fourteen-a of this chapter and any amendments thereto subsequently made address the same matters, the provisions of the international fuel tax agreement shall take precedence.
(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, (c) 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,
(d) Interstate motor fuel users (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 may provide for provides that each state base jurisdiction to audit the records of motor carriers based in that state jurisdiction to determine if the motor fuel taxes due each state all other base jurisdictions are properly reported and paid. When a base state jurisdiction performs a motor fuel use tax audit on an interstate motor carrier based in that state jurisdiction, it shall forward the findings of such audit to each state 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.
(b) (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 the international fuel tax agreement shall said article ten control.


The Committee on Finance moves to amend the bill on page sixteen, section seven, line twenty, following the words "be revoked", by striking out the period and inserting in lieu thereof the words "until all the returns are filed and payments made", followed by a period.

And,

On page sixteen, section seven, line twenty-five, following the word "marker", by striking out
the remainder of the subdivision and inserting in lieu thereof the words "and retained by the commissioner to defray the cost of issuing the identification markers.".

And,

By
amending the title of the bill to read as follows:

H. B. 4567 -- "A BILL 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 the 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."
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