ENGROSSED
Senate Bill No. 4004
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
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[Introduced November 17, 2009; referred to the Committee on
Finance.]
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A BILL to amend and reenact §11-14C-5 and §11-14C-48 of the Code of
West Virginia, 1931, as amended; and to amend and reenact
§11-15-18b of said code, all relating to adjusting the minimum
values for computations relating to the flat rate and variable
rate of the motor fuel excise tax; increasing the annual
minimum average wholesale price of motor fuel computation;
establishing variable restrictions on the average wholesale
price of motor fuel computation; terminating the Motor Fuel
Excise Tax Shortfall Reserve Fund; and transferring all moneys
remaining in the fund to the State Road Fund for the purpose
of reconstructing, renovating, maintaining or repairing
secondary roads.
Be it enacted by the Legislature of West Virginia:
That §11-14C-5 and §11-14C-48 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §11-15-18b of
said code be amended and reenacted, all to read as follows:
ARTICLE 14C. MOTOR FUEL EXCISE TAX.
§11-14C-5. Taxes levied; rate.
(a) There is hereby levied on all motor fuel an excise tax
composed of a flat rate equal to $.205 per invoiced gallon plus a
variable component comprised of either the tax imposed by section
eighteen-b, article fifteen of this chapter or the tax imposed
under section thirteen-a, article fifteen-a of this chapter, as
applicable:
Provided, That the motor fuel excise tax shall take
effect January 1, 2004:
Provided, however, That on and after
August 1, 2013, the flat rate portion of the motor fuel excise tax
shall be fifteen and one-half cents per gallon: Provided, further
however, That the variable component shall be equal to five percent
of the average wholesale price of the motor fuel:
And Provided
further, That the average wholesale price shall be no less than
$.97 per invoiced gallon and is computed as hereinafter prescribed
in this section:
And provided further, That on and after January
1, 2010, the average wholesale price shall be no less than $2.34
per invoiced gallon and is computed as hereinafter prescribed in
this section.
(b)
Determination of average wholesale price. --
(1) To simplify determining the average wholesale price of all
motor fuel, the Tax Commissioner shall, effective with the period
beginning the first day of the month of the effective date of the tax and each January 1 thereafter, determine the average wholesale
price of motor fuel for each annual period on the basis of sales
data gathered for the preceding period of July 1 through October
31. Notification of the average wholesale price of motor fuel
shall be given by the Tax Commissioner at least thirty days in
advance of each January 1 by filing notice of the average wholesale
price in the State Register and by any other means as the Tax
Commissioner considers reasonable.
(2) The "average wholesale price" means the single, statewide
average per gallon wholesale price, rounded to the third decimal
(thousandth of a cent), exclusive of state and federal excise taxes
on each gallon of motor fuel, as determined by the Tax Commissioner
from information furnished by suppliers, importers and distributors
of motor fuel in this state, or other information regarding
wholesale selling prices as the Tax Commissioner may gather, or a
combination of information:
Provided, That in no event shall the
average wholesale price be determined to be less than $.97 per
gallon of motor fuel:
Provided,
however, That for calendar year
2009, the average wholesale price of motor fuel shall not exceed
the average wholesale price of motor fuel for calendar year 2008 as
determined pursuant to the notice filed by the Tax Commissioner
with the Secretary of State on November 21, 2007, and published in
the State Register on November 30, 2007:
Provided further, That on
and after January 1, 2010, in no event shall the average wholesale
price be determined to be less than $2.34 per gallon of motor fuel: And provided further, That on and after January 1, 2011, the
average wholesale price shall not vary by more than ten percent
from the average wholesale price of motor fuel as determined by the
Tax Commissioner for the previous calendar year.
(3) All actions of the Tax Commissioner in acquiring data
necessary to establish and determine the average wholesale price of
motor fuel, in providing notification of his or her determination
prior to the effective date of any change in rate, and in
establishing and determining the average wholesale price of motor
fuel may be made by the Tax Commissioner without compliance with
the provisions of article three, chapter twenty-nine-a of this
code.
(4) In any administrative or court proceeding brought to
challenge the average wholesale price of motor fuel as determined
by the Tax Commissioner, his or her determination is presumed to be
correct and shall not be set aside unless it is clearly erroneous.
(c) There is hereby levied a floorstocks tax on motor fuel
held in storage outside the bulk transfer/terminal system as of the
close of the business day preceding January 1, 2004, and upon which
the tax levied by this section has not been paid. For the purposes
of this section, "close of the business day" means the time at
which the last transaction has occurred for that day. The
floorstocks tax is payable by the person in possession of the motor
fuel on January 1, 2004. The amount of the floorstocks tax on
motor fuel is equal to the sum of the tax rate specified in subsection (a) of this section multiplied by the gallons in storage
as of the close of the business day preceding January 1, 2004.
(1) Persons in possession of taxable motor fuel in storage
outside the bulk transfer/terminal system as of the close of the
business day preceding January 1, 2004, shall:
(A) Take an inventory at the close of the business day
preceding January 1, 2004, to determine the gallons in storage for
purposes of determining the floorstocks tax;
(B) Report no later than January 31, 2004, the gallons on
forms provided by the commissioner; and
(C) Remit the tax levied under this section no later than June
1, 2004.
(2) In the event the tax due is paid to the commissioner on or
before January 31, 2004, the person remitting the tax may deduct
from their remittance five percent of the tax liability due.
(3) In the event the tax due is paid to the commissioner after
June 1, 2004, the person remitting the tax shall pay, in addition
to the tax, a penalty in the amount of five percent of the tax
liability due.
(4) In determining the amount of floorstocks tax due under
this section, the amount of motor fuel in dead storage may be
excluded. There are two methods for calculating the amount of
motor fuel in dead storage:
(A) If the tank has a capacity of less than ten thousand
gallons, the amount of motor fuel in dead storage is two hundred gallons and if the tank has a capacity of ten thousand gallons or
more, the amount of motor fuel in dead storage is four hundred
gallons; or
(B) Use the manufacturer's conversion table for the tank after
measuring the number of inches between the bottom of the tank and
the bottom of the mouth of the drainpipe:
Provided, That the
distance between the bottom of the tank and the bottom of the mouth
of the draw pipe is presumed to be six inches.
(d) Every licensee who, on the effective date of any rate
change, has in inventory any motor fuel upon which the tax or any
portion thereof has been previously paid shall take a physical
inventory and file a report thereof with the commissioner, in the
format as required by the commissioner, within thirty days after
the effective date of the rate change, and shall pay to the
commissioner at the time of filing the report any additional tax
due under the increased rate.
§11-14C-48. Motor Fuel Excise Tax Shortfall State Road Fund
support payment.
There is hereby created in the State Treasury a special fund
to be known and designated as the Motor Fuel Excise Tax Shortfall
Reserve Fund to be administered by the Tax Commissioner for the
purposes provided by this section. The fund shall consist of
moneys transferred to the General Revenue Fund pursuant to
appropriation of the Legislature. At the end of each fiscal year,
during the fund's existence, the moneys in the fund shall not expire to the General Fund, but shall remain available for
expenditure during the ensuing fiscal year. The fund shall
terminate on
August 1, 2013 December 1, 2009. Any moneys remaining
in the fund on that termination date shall be transferred to the
General Revenue Fund State Road Fund and used only for the purpose
of reconstruction, renovation, maintenance and repair of secondary
roads. No provision of this section may be construed to require
funding for the purposes of this section in excess of amounts
transferred to the fund pursuant to appropriation of the
Legislature.
(b) Monthly shortfalls for fiscal years beginning on July 1,
2008, 2009, 2010, 2011 and 2012. -- Beginning on July 31 of each
fiscal year beginning in 2008, 2009, 2010, 2011 and 2012, and on
the last day of each month of each specified fiscal year until, and
including, June 30, 2013, or as soon after the last day of each
month as is practicable, the Tax Commissioner shall determine the
amount of the monthly motor fuel excise tax revenue shortfall that
occurred for each month. No such determination shall be made for
any month ending after June 30, 2013.
(1) Transfer for monthly shortfall. -- Within thirty days
after making the determination of the monthly motor fuel excise tax
revenue shortfall that occurred for each month, the Tax
Commissioner shall transfer moneys in an amount equal to the amount
of the motor fuel excise tax revenue shortfall that occurred for
each month from the Motor Fuel Excise Tax Shortfall Reserve Fund to the State Road Fund: Provided, That the total amount of moneys
transferred from the Motor Fuel Excise Tax Shortfall Reserve Fund
to the State Road Fund in each specified fiscal year through total
aggregate monthly transfers shall not exceed the balance remaining
in the Motor Fuel Excise Tax Shortfall Reserve Fund. No such
transfer shall be made that is attributable to any month beginning
after June 30, 2013: Provided, however, That transfers attributable
to the reconciliation for the period beginning July 1, 2012, to
June 30, 2013, mandated by paragraph (2) of this subsection shall
be made, if required.
(2) Annual reconciliation. -- On June 30 of each fiscal year
beginning in 2008, 2009, 2010, 2011 and 2012, or as soon thereafter
as is practicable, the Tax Commissioner shall determine the amount
of the annual motor fuel excise tax revenue shortfall that occurred
for each of the specified fiscal years.
(A) Transfer for annual reconciliation for the fiscal year. --
The amount of the annual motor fuel excise tax revenue shortfall
that occurred for each specified fiscal year shall be compared to
the total amount of moneys transferred from the Motor Fuel Excise
Tax Shortfall Reserve Fund to the State Road Fund over the same
fiscal year through total aggregate monthly transfers. The
resulting difference is the reconciliation amount.
(B) Net Shortfall. -- If the total amount of moneys
transferred from the Motor Fuel Excise Tax Shortfall Reserve Fund
to the State Road Fund for each specified fiscal year through total aggregate monthly transfers is less than the amount of the annual
motor fuel excise tax revenue shortfall that occurred over the same
fiscal year, then on or before August 1 next succeeding the end of
each such specified fiscal year, an amount of money equal to the
reconciliation amount shall be transferred by the Tax Commissioner
from the Motor Fuel Excise Tax Shortfall Reserve Fund to the State
Road Fund: Provided, That the sum of the reconciliation amount
subject to transfer and the total amount of moneys transferred from
the Motor Fuel Excise Tax Shortfall Reserve Fund to the State Road
Fund in each such fiscal year through total aggregate monthly
transfers shall not exceed the amount remaining in the Motor Fuel
Excise Tax Shortfall Reserve Fund.
(C) Net Overage. -- If the total amount of moneys transferred
from the Motor Fuel Excise Tax Shortfall Reserve Fund to the State
Road Fund for each specified fiscal year through total aggregate
monthly transfers is greater than the amount of the annual motor
fuel excise tax revenue shortfall that occurred over the same
fiscal year, then moneys equal to the reconciliation amount shall
be offset against amounts that would have otherwise been
transferred by the Tax Commissioner from the Motor Fuel Excise Tax
Shortfall Reserve Fund to the State Road Fund under this section in
the next succeeding fiscal year, and moneys transferred shall
accordingly decrease.
(c) Definitions. --
(1) ôCalendar yearö means the year beginning on January 1 and ending on December 31.
(2) ôMotor fuel excise tax revenue shortfallö means the
official West Virginia state revenue estimate for motor fuel excise
tax revenues for a designated period minus the amount of motor fuel
excise tax collected for the same period: Provided, That if the
motor fuel excise tax collected for the designated period is
greater than the official West Virginia state revenue estimate for
motor fuel excise tax revenues for the same period, the motor fuel
excise tax revenue shortfall is zero for the period.
(d) Reporting. -- The Commissioner of Highways shall submit a
report to the Joint Committee on Government and Finance not later
than the last day of each month for the period of July 1, 2008
through June 30, 2013, providing an analysis of the financial
status of the State Road Fund and funds for highway maintenance.
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-18b. Tax on motor fuel effective January 1, 2004.
(a)
General. -- Effective January 1, 2004, all sales of motor
fuel subject to the flat rate of the tax imposed by section five,
article fourteen-c of this chapter are subject to the tax imposed
by this article which shall comprise the variable component of the
tax imposed by said section and be collected and remitted at the
time the tax imposed by said section is remitted. Sales of motor
fuel upon which the tax imposed by this article has been paid shall
not thereafter be again taxed under the provisions of this article.
This section is construed so that all gallons of motor fuel sold and delivered, or delivered, in this state are taxed one time.
(b)
Measure of tax. -- The measure of tax imposed by this
article on sales of motor fuel is the average wholesale price as
defined and determined in section five, article fourteen-c of this
chapter. For purposes of maintaining revenue for highways, and
recognizing that the tax imposed by this article is generally
imposed on gross proceeds from sales to ultimate consumers, whereas
the tax on motor fuel herein is imposed on the average wholesale
price of the motor fuel; in no case, for the purposes of taxation
under this article, shall the average wholesale price be determined
to be less than $.97 per gallon of motor fuel for all gallons of
motor fuel sold during the reporting period, notwithstanding any
provision of this article to the contrary:
Provided, That on and
after January 1, 2010, for the purpose of taxation under this
article, in no case shall the average wholesale price be determined
to be less than $2.34 per gallon of motor fuel for all gallons of
motor fuel sold during the reporting period, notwithstanding any
provision of this article to the contrary.
(c)
Definitions. -- For purposes of this article, the terms
ôgasolineö and ôspecial fuelö are defined as provided in section
two, article fourteen-c of this chapter. Other terms used in this
section have the same meaning as when used in a similar context in
said article.
(d)
Tax return and tax due. -- The tax imposed by this article
on sales of motor fuel shall be paid by each taxpayer on or before the last day of the calendar month by check, bank draft, certified
check or money order payable to the Tax Commissioner for the amount
of tax due for the preceding month, notwithstanding any provision
of this article to the contrary:
Provided, That the commissioner
may require all or certain taxpayers to file tax returns and
payments electronically. The return required by the commissioner
shall accompany the payment of tax:
Provided,
however, That if no
tax is due, the return required by the commissioner shall be
completed and filed on or before the last day of the month.
(e)
Compliance. -- To facilitate ease of administration and
compliance by taxpayers, the Tax Commissioner shall require persons
liable for the tax imposed by this article on sales of motor fuel
to file a combined return and make a combined payment of the tax
due under this article on sales of motor fuel and the tax due under
article fourteen-c of this chapter on motor fuel. In order to
encourage use of a combined return each month and the making of a
single payment each month for both taxes, the due date of the
return and tax due under said article is the last day of each
month, notwithstanding any provision in said article to the
contrary.
(f)
Dedication of tax. -- All tax collected under the
provisions of this section, after deducting the amount of any
refunds lawfully paid, shall be deposited in the Road Fund in the
State Treasurer
'
s office and used only for the purpose of
construction, reconstruction, maintenance and repair of highways and payment of principal and interest on state bonds issued for
highway purposes: Provided, That notwithstanding any provision to
the contrary, any tax collected on the sale of aviation fuel after
deducting the amount of any refunds lawfully paid shall be
deposited in the State Treasurer
'
s office and transferred to the
State Aeronautical Commission to be used for the purpose of
matching federal funds available for the reconstruction,
maintenance and repair of public airports and airport runways.
(g) Construction. -- This section is not construed as taxing
any sale of motor fuel which this state is prohibited from taxing
under the constitution of this state or the constitution or laws of
the United States.
(h) Effective date. -- The provisions of this section take
effect on January 1, 2004. The provisions of this section enacted
during the 2007 Legislative session take effect on January 1, 2008.