H. B. 2781
(By Delegate Hunt)
[Introduced February 16, 1999; referred to the
Committee on Roads and Transportation then Finance.]
A BILL to amend and reenact section thirteen, article fifteen-a,
chapter eleven of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to removal of
the imposed ninety-seven cents per gallon average minimum
wholesale fuel price cap.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article fifteen-a, chapter eleven of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 15A. USE TAX.
§11-15A-13. Tax on gasoline and special fuel.
(a) Imposition of tax.
(1) On deliveries in this state. -- Gasoline or special fuel
furnished or delivered within this state to consumers or users is
subject to tax at the rate imposed by section two of this article: Provided, That the amount of tax due under section two
shall in no event be less than five percent of the average
wholesale price of gasoline and special fuel and with such price
to, in no case, be deemed to be less than ninety-seven cents per
gallon for all gallons of gasoline and special fuel taxable under
section two of this article.
(2) On purchases out of state. -- An excise tax is hereby
imposed on the use or consumption in this state of gasoline or
special fuel purchased outside this state at the rate of five
percent of the average wholesale price of such gasoline or
special fuel, as determined under subsection (c), notwithstanding
any provision of this article to the contrary: Provided, That
gasoline or special fuel contained in the supply tank of a motor
vehicle that is not a motor carrier shall not be taxable, except
that gasoline or special fuel imported in the supply tank or
auxiliary tank of construction equipment, mining equipment, track
maintenance equipment or other similar equipment, shall be taxed
in the same manner as that in the supply tank of a motor carrier.
(b) Definitions. -- Terms used in the section shall have the
same meaning as when used in a comparable context in section
eighteen, article fifteen of this chapter.
(c) Determination of average wholesale price.
(1) To simplify determining the average wholesale price of
all gasoline and special fuel, the tax commissioner shall, effective with the period beginning the first day of the month of
the effective date of this section and each first day of January,
annually, thereafter, determine the average wholesale price of
gasoline and special fuel for each annual period, on the basis of
sales data gathered for the preceding period of the first day of
July through the thirty-first day of October. Notification of
the average wholesale price of gasoline and special fuel shall be
given by the tax commissioner at least thirty days in advance of
each first day of January, annual period, by filing notice of the
average wholesale price in the state register, and by such other
means as the tax commissioner deems reasonable: Provided, That
notice of the average wholesale price of gasoline and special
fuel for the first period shall be timely given if filed in the
state register on the effective date of this section.
(2) The "average wholesale price" shall mean 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 gasoline or diesel fuel,
as determined by the tax commissioner from information furnished
by distributors of gasoline or special fuel in this state, or
such other information regarding wholesale selling prices as the
tax commissioner may gather, or a combination of such
information. Provided, That in no event shall the average
wholesale price be determined to be less than ninety-seven cents per gallon of gasoline or special fuel.
(3) All actions of the tax commissioner in acquiring data
necessary to establish and determine the average wholesale price
of gasoline and special 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 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 gasoline and special
fuel as determined by the tax commissioner, his or her
determination shall be presumed to be correct and shall not be
set aside unless it is clearly erroneous.
(d) Computation of tax due from motor carriers. -- Every
person who operates or causes to be operated a motor carrier in
this state shall pay the tax imposed by this section on the
average wholesale price of all gallons of gasoline or special
fuel used in the operation of any motor carrier within this
state, under the following rules:
(1) The total amount of gasoline or special fuel used in the
operation of the motor carrier within this state shall be that
proportion of the total amount of gasoline and special fuel used
in any motor carrier's operations within and without this state, that the total number of miles traveled within this state bears
to the total number of miles traveled within and without this
state.
(2) A motor carrier shall first determine the gross amount of
tax due under this section on the average wholesale value,
determined under subsection (c), of all gasoline and special fuel
used in the operation of the motor carrier within this state
during the preceding quarter, as if all gasoline and special fuel
had been purchased outside this state.
(3) Next, the taxpayer shall determine the total tax paid
under article fifteen of this chapter on all gasoline and special
fuel purchased in this state for use in the operation of the
motor carrier.
(4) The difference between (2) and (3) is the amount of tax
due under this article when (2) is greater than (3), or the
amount to be refunded or credited to the motor carrier when (3)
is greater than (2), which refund or credit shall be allowed in
the same manner and under the same conditions as a refund or
credit is allowed for the tax imposed by article fourteen-a of
this chapter.
(e) Return and payment of tax. -- Tax due under this article
on the uses or consumption in this state of gasoline or special
fuel shall be paid by each taxpayer on or before the twenty-fifth
day of January, April, July and October of each year, notwithstanding any provision of this article to the contrary, by
check, bank draft, certified check or money order, payable to the
tax commissioner, for the amount of tax due for the preceding
quarter. Every taxpayer shall make and file with his or her
remittance, a return showing such information as the tax
commissioner may require.
(f) Compliance. -- To facilitate ease of administration and
compliance by taxpayers, the tax commissioner may require motor
carriers liable for the taxes imposed by this article on the use
of gasoline or special fuel in the operation of motor carriers
within this state, and the tax imposed by article fourteen-a of
this chapter on such gallons of fuel, to file a combined return
and make a combined payment of the tax due under this article and
article fourteen-a of this chapter on such fuel. In order to
encourage use of a combined return and the making of a single
payment each quarter for both taxes, the due date of the return
and tax due under article fourteen-a of this chapter is hereby
changed from the last day of January, April, July and October of
each calendar year, to the twenty-fifth day of such months,
notwithstanding any provisions in article fourteen-a of this
chapter to the contrary.
(g) Dedication of tax to highways. -- All tax collected under
the provisions of this section after deducting the amount of any
refunds lawfully paid shall be deposited in the "road fund" in the state treasurer's office, and shall be 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.
(h) Construction. -- The tax imposed by this article on the
use of gasoline or special fuel in this state shall not be
construed as taxing any gasoline or special fuel which the state
is prohibited from taxing under the constitution of this state or
the constitution or laws of the United States.
(i) Effective date. -- The provisions of this section and the
amendments to section three of this article took effect on the
first day of April, one thousand nine hundred eighty-three.
(j) Validation. -- Inasmuch as there is currently litigation
challenging the lawfulness of this section in the situation where
a motor carrier purchases gasoline or special fuel in another
state paying to that other state a sales tax thereon and then
consumes that gasoline or special fuel in its operation of a
motor carrier in this state, without being statutorily allowed a
credit for such sales tax against the tax imposed by this article
with respect to such gallonage of tax paid fuel consumed in this
state; and inasmuch as section ten-a of this article
reestablishes the allowance of such a credit and makes such
allowance effectively retroactive and applicable to gasoline and
special fuel consumed in this state after the thirtieth day of June, one thousand nine hundred eighty-five, the purported
constitutional infirmity is cured. To avoid any question about
whether this section was in effect subsequent to the thirtieth
day of June, one thousand nine hundred eighty-five, this section
is reenacted and expressly made retroactive to the first day of
July, one thousand nine hundred eighty-five, and the tax
commissioner shall not refund or credit any tax previously paid
under this section due to a claim that the tax was not lawfully
imposed subsequent to the thirtieth day of June, one thousand
nine hundred eighty-five.
NOTE: The purpose of this bill is to correct the statute by
removing the arbitrarily high value of ninety-seven cents per
gallon it sets for fuel, the true and actual wholesale value of
which, and the value upon which it should be taxed, being
approximately one-half that amount.
Strike-throughs indicate language which would be stricken
from the present law, and underscoring indicates new language
which would be added.