ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 496
(By Senators Tomblin, Mr. President and Sprouse, By Request of the Executive)
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[Passed March 8, 2003; in effect ninety days from passage.]
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AN ACT to amend and reenact section two, article nine, chapter
eleven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections three
and fourteen, article ten of said chapter; to amend article
fourteen of said chapter by adding thereto a new section,
designated section thirty-one; to amend and reenact sections
two, three, five, nine and eleven, article fourteen-a of said
chapter; to amend and reenact section two, article fourteen-b
of said chapter; to further amend said chapter by adding
thereto a new article, designated article fourteen-c; to amend
and reenact section eighteen, article fifteen of said chapter;
to further amend said article fifteen by adding thereto a new
section, designated section eighteen-b; to amend and reenact
section thirteen, article fifteen-a of said chapter; and to
further amend said article fifteen-a by adding thereto a new section, designated thirteen-a, all relating generally to the
levy, collection and administration of West Virginia motor
fuels excise tax; making tax crimes and penalties act
applicable to West Virginia motor fuels excise tax as of
specified date; making West Virginia tax procedure and
administration act applicable to West Virginia motor fuels
excise tax effective as of specified date; applying
overpayments, credits and refunds to West Virginia motor fuels
excise tax effective as of effective date; replacing gasoline
and special fuel excise tax with motor fuel excise tax as of
specified date, after which gasoline and special fuel excise
tax is repealed; defining certain motor carrier road tax
terms; requiring motor carrier road tax to be equal to the
motor fuel excise tax; changing frequency for filing motor
carrier road tax reports; providing credit against motor
carrier road tax for payment of motor fuels excise tax;
authorizing refunds of the motor fuels tax; defining certain
terms in interstate fuel tax agreement; enacting motor fuels
excise tax; defining terms; authorizing promulgation of rules
and forms; authorizing exchange of information; levying motor
fuels excise tax; establishing rate of motor fuels excise tax;
establishing points at which the tax is imposed; imposing tax
on unaccounted for motor fuel losses; imposing back-up tax on
taxable use of untaxed fuel; establishing exemptions from tax;
designating persons to be licensed; establishing license application procedure; authorizing permissive supplier to
collect tax; establishing bond requirements; grounds for
issuance and for denial of license; requiring notice of
discontinuance of business; providing for permitting license
cancellation under certain circumstances; records of license
applicants and licensees; specifying when tax returns and tax
payments are due; requiring remittance of tax by suppliers and
permissive suppliers; providing for notice of cancellation and
reissuance of license; identifying information required on tax
return; specifying deductions and discounts allowed to
suppliers and permissive suppliers; specifying duties of
suppliers and permissive suppliers as trustee; requiring
returns and allowing discounts to importers; requiring
information returns by terminal operators; requiring
information returns by motor fuel transporters; requiring
return by exporters; identifying information required on
returns; authorizing refund of taxes erroneously collected or
for gallonage exported or lost through casualty or
evaporation; providing method for claiming and paying refunds;
incorporating provisions of tax crimes and penalties act and
West Virginia tax procedure and administration act into motor
fuels excise tax; specifying information required on shipping
documents; requiring import confirmation number; prohibiting
improper sale or use of untaxed motor fuels; providing remedy
for refusal to allow inspection or taking of fuel sample; prohibiting engaging in business without a license;
prohibiting certain persons from obtaining license; providing
civil remedy for filing false returns and for failure to file
returns; providing criminal penalties for willful commission
of prohibited acts; imposing penalties for unlawful importing,
transportation, delivery, storage or sale of motor fuel;
providing for enforcement of assessment; imposing
record-keeping requirements; providing for inspection of
records; providing commissioner authority to inspect;
specifying marking requirements for dyed diesel fuel storage
facilities; providing for disposition of tax collected; and
specifying that sections pertaining to sales and use taxes on
gasoline and special fuel are, after a specified date,
repealed and replaced by new sections continuing sales and use
taxes on motor fuel and harmonizing these taxes with new motor
fuel excise tax.
Be it enacted by the Legislature of West Virginia:
That section two, article nine, chapter eleven of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that sections three and fourteen, article
ten of said chapter be amended and reenacted; that article fourteen
of said chapter be amended by adding thereto a new section,
designated section thirty-one; that sections two, three, five, nine
and eleven, article fourteen-a of said chapter be amended and reenacted; that section two, article fourteen-b of said chapter be
amended and reenacted; that said chapter be further amended by
adding thereto a new article, designated article fourteen-c; that
section eighteen, article fifteen of said chapter be amended and
reenacted; that article fifteen of said chapter be amended by
adding thereto a new section, designated section eighteen-b; that
section thirteen, article fifteen-a of said chapter be amended and
reenacted; and that article fifteen-a of said chapter be further
amended by adding thereto a new section, designated section
thirteen-a, all to read as follows:
ARTICLE 9. CRIMES AND PENALTIES.
§11-9-2. Application of this article.
(a) The provisions of this article apply to the following
taxes imposed by this chapter: (1) The inheritance and transfer
taxes and estate taxes imposed by article eleven of this chapter;
(2) the business registration tax imposed by article twelve of this
chapter; (3) the minimum severance tax on coal imposed by article
twelve-b of this chapter; (4) the corporate license tax imposed by
article twelve-c of this chapter;(5) the business and occupation
tax imposed by article thirteen of this chapter; (6) the severance
tax imposed by article thirteen-a of this chapter; (7) the
telecommunications tax imposed by article thirteen-b of this
chapter; (8) the gasoline and special fuels excise tax imposed by
article fourteen of this chapter; (9) the motor fuel excise tax imposed by article fourteen-c of this chapter; (10) the motor
carrier road tax imposed by article fourteen-a of this chapter;
(11) the interstate fuel tax agreement authorized by article
fourteen-b of this chapter; (12) the consumers sales and service
tax imposed by article fifteen of this chapter; (13) the use tax
imposed by article fifteen-a of this chapter; (14) the tobacco
products excise tax imposed by article seventeen of this chapter;
(15) the soft drinks tax imposed by article nineteen of this
chapter; (16) the personal income tax imposed by article twenty-one
of this chapter; (17) the business franchise tax imposed by article
twenty-three of this chapter; (18) the corporation net income tax
imposed by article twenty-four of this chapter; and (19) the health
care provider tax imposed by article twenty-seven of this chapter.
(b) The provisions of this article also apply to the West
Virginia tax procedure and administration act in article ten of
this chapter, and to any other articles of this chapter when
application is expressly provided for by the Legislature.
(c) The provisions of this article also apply to the
charitable bingo fee imposed by sections six and six-a, article
twenty, chapter forty-seven of this code; the charitable raffle fee
imposed by section seven, article twenty-one of said chapter; and
the charitable raffle boards and games fees imposed by section
three, article twenty-three of said chapter.
(d) Each and every provision of this article applies to the
articles of this chapter listed in subsections (a), (b) and (c) of this section, with like effect, as if the provisions of this
article were applicable only to the tax and were set forth in
extenso in this article.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-3. Application of this article.
(a) The provisions of this article apply to the inheritance
and transfer taxes, the estate tax, and interstate compromise and
arbitration of inheritance and death taxes, the business
registration tax, the annual tax on incomes of certain carriers,
the minimum severance tax on coal, the corporate license tax, the
business and occupation tax, the severance tax, the
telecommunications tax, the interstate fuel tax, the consumers
sales and service tax, the use tax, the tobacco products excise
tax, the soft drinks tax, the personal income tax, the business
franchise tax, the corporation net income tax, the gasoline and
special fuel excise tax, the motor fuel excise tax, the motor
carrier road tax, the health care provider tax, and the tax relief
for elderly homeowners and renters administered by the state tax
commissioner. This article shall not apply to ad valorem taxes on
real and personal property or any other tax not listed in this
section, except that in the case of ad valorem taxes on real and
personal property, when any return, claim, statement or other
document is required to be filed, or any payment is required to be
made within a prescribed period or before a prescribed date, and the applicable law requires delivery to the office of the sheriff
of a county of this state, the methods prescribed in section five-f
of this article for timely filing and payment to the tax
commissioner or state tax department are the same methods utilized
for timely filing and payment with the sheriff.
(b) The provisions of this article apply to the beer barrel
tax levied by article sixteen of this chapter and to the wine liter
tax levied by section four, article eight, chapter sixty of this
code.
(c) The provisions of this article also apply to any other
article of this chapter when the application is expressly provided
for by the Legislature.
§11-10-14. Overpayments; credits; refunds and limitations.
(a) Refunds or credits of overpayments. -- In the case of
overpayment of any tax (or fee), additions to tax, penalties or
interest imposed by this article, or any of the other articles of
this chapter, or of this code, to which this article is applicable,
the tax commissioner shall, subject to the provisions of this
article, refund to the taxpayer the amount of the overpayment or,
if the taxpayer so elects, apply the same as a credit against the
taxpayer's liability for the tax for other periods. The refund or
credit shall include any interest due the taxpayer under the
provisions of section seventeen of this article.
(b) Refunds or credits of gasoline and special fuel excise tax or motor carrier road tax. -- Any person who seeks a refund or
credit of gasoline and special fuel excise taxes under the
provisions of section ten, eleven or twelve, article fourteen of
this chapter, section nine or eleven, article fourteen-a of this
chapter, or of motor fuel excise tax under section nine, article
fourteen-c of this chapter shall file his or her claim for refund
or credit in accordance with the provisions of the applicable
sections. The ninety-day time period for determination of claims
for refund or credit provided in subsection (d) of this section
does not apply to these claims for refund or credit: Provided, That
claims for refund or credit of the motor fuel excise tax under
section nine, article fourteen-c, of this chapter are subject to
the ninety-day time period provided in subsection (d) of this
section: Provided, however, That claims for refund or credit of the
motor fuel excise tax under section nine, article fourteen-c of
this chapter made by the United States government or unit or agency
thereof, any municipal government or any agency thereof, or any
county board of education made pursuant to subdivisions one, two,
three, four, five and six, subsection (c), section nine, article
fourteen-c of this chapter will be subject to a thirty-day time
period.
(c) Claims for refund or credit. -- No refund or credit shall
be made unless the taxpayer has timely filed a claim for refund or
credit with the tax commissioner. A person against whom an assessment or administrative decision has become final is not
entitled to file a claim for refund or credit with the tax
commissioner as prescribed herein. The tax commissioner shall
determine the taxpayer's claim and notify the taxpayer in writing
of his or her determination.
(d) Petition for refund or credit; hearing. --
(1) If the taxpayer is not satisfied with the tax
commissioner's determination of taxpayer's claim for refund or
credit, or if the tax commissioner has not determined the
taxpayer's claim within ninety days after the claim was filed, or
six months in the case of claims for refund or credit of the taxes
imposed by articles twenty-one, twenty-three and twenty-four of
this chapter, after the filing thereof, the taxpayer may file, with
the tax commissioner, either personally or by certified mail, a
petition for refund or credit: Provided, That no petition for
refund or credit may be filed more than sixty days after the
taxpayer is served with notice of denial of taxpayer's claim:
Provided, however, That after the thirty-first day of December, two
thousand two, the taxpayer shall file the petition with the office
of tax appeals in accordance with the provisions of section nine,
article ten-a of this chapter.
(2) The petition for refund or credit shall be in writing,
verified under oath by the taxpayer, or by taxpayer's duly
authorized agent having knowledge of the facts, and set forth with particularity the items of the determination objected to, together
with the reasons for the objections.
(3) When a petition for refund or credit is properly filed,
the procedures for hearing and for decision applicable when a
petition for reassessment is timely filed shall be followed.
(e) Appeal. -- An appeal from the office of tax appeal's
administrative decision upon the petition for refund or credit may
be taken by the taxpayer in the same manner and under the same
procedure as that provided for judicial review of an administrative
decision on a petition for reassessment, but no bond is required of
the taxpayer. An appeal from the administrative decision of the
office of tax appeals on a petition for refund or credit, if taken
by the taxpayer, shall be taken as provided in section nineteen,
article ten-a of this chapter.
(f) Decision of the court. -- Where the appeal is to review
an administrative decision on a petition for refund or credit, the
court may determine the legal rights of the parties but in no event
shall it enter a judgment for money.
(g) Refund made or credit established. -- The tax
commissioner shall promptly issue his or her requisition on the
treasury or establish a credit, as requested by the taxpayer, for
any amount finally administratively or judicially determined to be
an overpayment of any tax (or fee) administered under this article.
The auditor shall issue his or her warrant on the treasurer for any refund requisitioned under this subsection payable to the taxpayer
entitled to the refund, and the treasurer shall pay the warrant out
of the fund into which the amount refunded was originally paid:
Provided, That refunds of personal income tax may also be paid out
of the fund established pursuant to section ninety-three, article
twenty-one of this chapter.
(h) Forms for claim for refund or a credit; where return
constitutes claim. -- The tax commissioner may prescribe by rule
or regulation the forms for claims for refund or credit.
Notwithstanding the foregoing, where the taxpayer has overpaid the
tax imposed by article twenty-one, twenty-three or twenty-four of
this chapter, a return signed by the taxpayer which shows on its
face that an overpayment of tax has been made constitutes a claim
for refund or credit.
(i) Remedy exclusive. -- The procedure provided by this
section constitutes the sole method of obtaining any refund credit,
or any tax (or fee) administered under this article, it being the
intent of the Legislature that the procedure set forth in this
article is in lieu of any other remedy, including the uniform
declaratory judgments act embodied in article thirteen, chapter
fifty-five of this code, and the provisions of section two-a,
article one of this chapter.
(j) Applicability of this section. -- The provisions of this
section apply to refunds or credits of any tax (or fee), additions to tax, penalties or interest imposed by this article, or any
article of this chapter, or of this code, to which this article is
applicable.
(k) Erroneous refund or credit. -- If the tax commissioner
believes that an erroneous refund has been made or an erroneous
credit has been established, he or she may proceed to investigate
and make an assessment or institute civil action to recover the
amount of the refund or credit, within two years from the date the
erroneous refund was paid or the erroneous credit was established,
except that the assessment may be issued or civil action brought
within five years from the date if it appears that any portion of
the refund or credit was induced by fraud or misrepresentation of
a material fact.
(l) Limitation on claims for refund or credit. --
(1) General rule. -- Whenever a taxpayer claims to be
entitled to a refund or credit of any tax (or fee), additions to
tax, penalties or interest imposed by this article, or any article
of this chapter, or of this code, administered under this article,
paid into the treasury of this state, the taxpayer shall, except as
provided in subsection (d) of this section, file a claim for
refund, or credit, within three years after the due date of the
return in respect of which the tax (or fee) was imposed, determined
by including any authorized extension of time for filing the
return, or within two years from the date the tax, (or fee), was paid, whichever of the periods expires the later, or if no return
was filed by the taxpayer, within two years from the time the tax
(or fee) was paid, and not thereafter.
(2) Extensions of time for filing claim by agreement. -- The
tax commissioner and the taxpayer may enter into a written
agreement to extend the period within which the taxpayer may file
a claim for refund or credit, which period shall not exceed two
years. The period agreed upon may be extended for additional
periods not in excess of two years each by subsequent agreements in
writing made before expiration of the period previously agreed
upon.
(3) Special rule where agreement to extend time for making an
assessment. -- Notwithstanding the provisions of subdivisions (1)
and (2) of this subsection, if an agreement is made under the
provisions of section fifteen of this article extending the time
period in which an assessment of tax can be made, then the period
for filing a claim for refund or credit for overpayment of the same
tax made during the periods subject to assessment under the
extension agreement are also extended for the period of the
extension agreement plus ninety days.
(4) Overpayment of federal tax. -- Notwithstanding the
provisions of subdivisions (1) and (2) of this subsection, in the
event of a final determination by the United States Internal
Revenue Service or other competent authority of an overpayment in the taxpayer's federal income or estate tax liability, the period
of limitation upon claiming a refund reflecting the final
determination in taxes imposed by articles eleven, twenty-one and
twenty-four of this chapter shall not expire until six months after
the determination is made by the United States Internal Revenue
Service or other competent authority.
(5) Tax paid to the wrong state. -- Notwithstanding the
provisions of subdivisions (1) and (2) of this subsection, when an
individual, or the fiduciary of an estate, has in good faith
erroneously paid personal income tax, estate tax or sales tax, to
this state on income or a transaction which was lawfully taxable by
another state and, therefore, not taxable by this state, and no
dispute exists as to the jurisdiction to which the tax should have
been paid, then the time period for filing a claim for refund, or
credit, for the tax erroneously paid to this state does not expire
until ninety days after the tax is lawfully paid to the other
state.
(6) Exception for gasoline and special fuel excise tax, motor
fuel excise tax and motor carrier road tax. -- This subsection
does not apply to refunds or credits of gasoline and special fuel
excise tax, motor carrier road tax, or motor fuel excise tax sought
under the provisions of article fourteen, fourteen-a or fourteen-c
of this chapter.
ARTICLE 14. GASOLINE AND SPECIAL FUEL EXCISE TAX.
§11-14-31. Repeal of article.
Each and every provision of this article is repealed for all
tax periods beginning on and after the first day of January, two
thousand four: Provided, That tax liabilities arising for taxable
periods ending before the first day of January, two thousand four,
are determined, paid, administered, assessed and collected as if
the tax imposed by this article had not been repealed, and the
rights and duties of the taxpayer and the state of West Virginia
are fully and completely preserved.
ARTICLE 14A. MOTOR CARRIER ROAD TAX.
§11-14A-2. Definitions.
For purposes of this article:
(1) "Commissioner" or "tax commissioner" means the tax
commissioner of the state of West Virginia or his or her duly
authorized agent.
(2) "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.
(3) "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, "gasoline" shall have the same meaning
as in article fourteen-c of this chapter.
(4) "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.
(5) "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.
(6) "Lease" means any oral or written contract for valuable
consideration granting the use of a motor carrier.
(7) "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 having three or more axles regardless of weight or is
used in combination when the weight of the combination exceeds
twenty-six thousand pounds or registered gross vehicle weight:
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) "Motor fuel" means motor fuel as defined in article
fourteen-c of this chapter effective the first day of January, two
thousand four.
(9) "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) "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) "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) "Purchase" means and includes any acquisition of
ownership of property or of a security interest for a
consideration.
(13) "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) "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) "Sale" means any transfer, exchange, gift, barter or
other disposition of any property or security interest for a
consideration.
(16) "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 casinghead 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, "special fuel" has the same meaning as
in article fourteen-c of this chapter.
(17) "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) "Taxpayer" means any person liable for any tax,
interest, additions to tax or penalty under the provisions of this
article.
(19) "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) "Truck" means every motor carrier designed, used or
maintained primarily for the transportation of property and having
more than two axles.
§11-14A-3. Imposition of tax; amount; tax in addition to all other
taxes.
Every person who operates or causes to be operated on any
highway in this state any motor carrier shall pay a road tax on
each motor carrier equivalent to the amount of tax per gallon of
gasoline or special fuel imposed by article fourteen of this
chapter, calculated on each gallon of gasoline or special fuel used
as fuel in each motor carrier's operations in this state: Provided,
That effective the first day of January, two thousand four, the tax
imposed by this section shall be equal to the amount of the flat
rate of tax per gallon of motor fuel imposed by article fourteen-c
of this chapter and calculated on each gallon of motor fuel used as
fuel in each motor carrier's operations in this state.
The tax imposed by this article is in addition to all other
taxes of whatever character imposed upon any person by any other
provisions of law.
§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 article, except as provided in
subsections (b) and (c) of this section, shall on or before the
twenty-fifth 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 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. 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
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) A taxpayer shall keep records necessary to verify the
highway miles traveled within and without the state of West
Virginia, the number of gallons of gasoline and special fuel used and purchased within and without West Virginia and any other
records which the commissioner by regulation may prescribe.
(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-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 shall, upon
written request by the taxpayer, be allowed as a credit on the tax
for which the taxpayer would be otherwise liable for any of the
four succeeding quarters.
§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 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 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
further, That 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.
ARTICLE 14B. INTERNATIONAL FUEL TAX AGREEMENT.
§11-14B-2. Definitions.
(a) "Commercial motor vehicle": (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) "Fuel use tax" means a tax imposed on or measured by the
consumption of fuel in a motor vehicle.
(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.
(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) "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 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) "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.
ARTICLE 14C. MOTOR FUEL EXCISE TAX.
PART 1. GENERAL PROVISIONS.
§11-14C-1. Short title; nature of tax.
(a) This article shall be known and may be cited as the "West
Virginia Motor Fuels Excise Tax Act."
(b) All taxes levied under this article, or imposed under any
other article of this chapter but collected under this article, are
imposed upon the ultimate consumer but are precollected as
prescribed in this article. The levies and assessments imposed on
licensees as provided in this article are imposed on them as agents
of this state for the precollection of the tax. The taxes levied
under this article shall be collected and paid at those times, in
the manner, and by those persons specified in this article.
§11-14C-2. Definitions.
As used in this article and unless the context requires
otherwise, the following terms have the meaning ascribed herein.
(1) "Agricultural purposes" means the activities of:
(A) Cultivating the soil, including the planting and
harvesting of crops, for the commercial production of food, fiber, and ornamental woodland products;
(B) Using land for breeding and management of farm livestock,
including dairy, apiary, equine or poultry husbandry; and
(C) Using land for the practice of horticulture including the
growing of Christmas trees, orchards and nursery stock: Provided,
That agricultural purposes shall not include commercial forestry,
growing of timber for commercial purposes
,
or any other activity
that normally would not be included in subdivisions (A), (B) or (C)
of this definition.
(2) "Aircraft" includes any airplane or helicopter.
(3) "Alcohol" means motor fuel grade ethanol or a mixture of
motor fuel-grade ethanol and methanol, excluding denaturant and
water that is a minimum of ninety-eight percent ethanol or methanol
by volume.
(4) "Article" or "this article" means article fourteen-c,
chapter eleven of this code.
(5) "Assessment" means a written determination by the
commissioner of the amount of taxes owed by a taxpayer.(6)
"Aviation fuel" means aviation gasoline or aviation jet fuel.
(7) "Aviation gasoline" means motor fuel designed for use in
the operation of aircraft other than jet aircraft, and sold or used
for that purpose.
(8) "Aviation jet fuel" means motor fuel designed for use in
the operation of jet or turbo-prop aircraft, and sold or used for that purpose.
(9) "Biodiesel fuel" means any motor fuel or mixture of motor
fuels that is derived, in whole or in part, from agricultural
products or animal fats, or the wastes of such products or fats,
and is advertised as, offered for sale as, suitable for use or used
as motor fuel in an internal combustion engine.
(10) "Blended fuel" means a mixture composed of gasoline or
diesel fuel and another liquid, including, but not limited to,
gasoline blend stocks, gasohol, ethanol, methanol, fuel grade
alcohol, diesel fuel enhancers and resulting blends, other than a
de minimus amount of a product such as carburetor detergent or
oxidation inhibitor, that can be used as a motor fuel in a highway
vehicle.
(11) "Blender" means a person who produces blended motor fuel
outside the bulk transfer/terminal system.
(12) "Blending" means the mixing of one or more petroleum
products, with or without another product, regardless of the
original character of the product blended, if the product obtained
by the blending is capable of use in the generation of power for
the propulsion of a motor vehicle, an airplane, or a marine vessel.
Blending does not include mixing that occurs in the process of
refining by the original refiner of crude petroleum or the blending
of products known as lubricating oil in the production of
lubricating oils and greases.
(13) "Bulk plant" means a motor fuel storage and distribution
facility that is not a terminal and from which motor fuel may be
removed at a rack.
(14) "Bulk transfer" means any transfer of motor fuel from one
location to another by pipeline tender or marine delivery within a
bulk transfer/terminal system, including, but not limited to, all
of the following:
(A) A marine vessel movement of motor fuel from a refinery or
terminal to a terminal;
(B) Pipeline movements of motor fuel from a refinery or
terminal to a terminal;
(C) Book transfer of motor fuel within a terminal between
licensed suppliers prior to completion of removal across the rack;
and
(D) Two-party exchange between licensed suppliers or between
licensed suppliers and permissive suppliers.
(15) "Bulk user" means a person who maintains storage
facilities for motor fuel and uses part or all of the stored motor
fuel to operate a motor vehicle, watercraft or aircraft.
(16) "Bulk transfer/terminal system" means the motor fuel
distribution system consisting of refineries, pipelines, marine
vessels, and terminals. Motor fuel in a refinery, a pipeline, a
terminal, or a marine vessel transporting motor fuel to a refinery
or terminal is in the bulk transfer/terminal system. Motor fuel in
a motor fuel storage facility including, but not limited to, a bulk plant that is not part of a refinery or terminal, in the motor fuel
supply tank of any engine or motor vehicle, in a marine vessel
transporting motor fuel to a motor fuel storage facility that is
not in the bulk transfer/terminal system, or in any tank car, rail
car, trailer, truck, or other equipment suitable for ground
transportation is not in the bulk transfer/terminal system.
(17) "Carrier" means any operator of a pipeline or marine
vessel engaged in the business of transporting motor fuel above the
terminal rack.
(18) "Code" means the code of West Virginia of one thousand
nine hundred thirty-one, as amended.
(19) "Commercial watercraft" means a watercraft employed in
the business of commercial fishing, transporting persons or
property for compensation or hire, or any other trade or business.
(20) "Commissioner" or "tax commissioner" means the West
Virginia state tax commissioner, or his or her delegate.
(21) "Compressed natural gas" means natural gas that has been
compressed and dispensed into motor fuel storage containers and is
advertised as, offered for sale as, suitable for use as, or used as
an engine motor fuel.
(22) "Corporate or partnership officer" means an officer or
director of a corporation, partner of a partnership, or member of
a limited liability company, who as an officer, director, partner
or member is under a duty to perform on behalf of the corporation, partnership, or limited liability company the tax collection,
accounting, or remitting obligations.
(23) "Dead storage" is the amount of motor fuel that cannot be
pumped out of a motor fuel storage tank because the motor fuel is
below the mouth of the draw pipe. The amount of motor fuel in dead
storage is two hundred gallons for a tank with a capacity of less
than ten thousand gallons and four hundred gallons for a tank with
a capacity of ten thousand gallons or more.
(24) "Denaturants" means and includes gasoline, natural
gasoline, gasoline components, or toxic or noxious materials added
to motor fuel grade ethanol to make it unsuitable for beverage use,
but not unsuitable for automotive use.
(25) "Designated inspection site" means any state highway
inspection station, weigh station, agricultural inspection station,
mobile station, or other location designated by the commissioner to
be used as a motor fuel inspection site.
(26) "Destination state" means the state, territory, or
foreign country to which motor fuel is directed for delivery into
a storage facility, a receptacle, a container, or a type of
transportation equipment for the purpose of resale or use. The
term shall not include a tribal reservation of any recognized
native American tribe.
(27) "Diesel fuel" means any liquid that is advertised as,
offered for sale as, sold for use as, suitable for use as or used
as a motor fuel in a diesel-powered highway vehicle or watercraft. The term includes #1 fuel oil, #2 fuel oil, undyed diesel fuel and
kerosene, but shall not include gasoline or aviation fuel.
(28) "Distributor" means a person who acquires motor fuel from
a licensed supplier, permissive supplier, or from another licensed
distributor for subsequent sale or use.
(29) "Diversion" means transporting motor fuel outside a
reasonably direct route from the source to the destination state.
(30) "Division" or "state tax division" means the tax division
of the West Virginia department of tax and revenue.
(31) "Dyed diesel fuel" means diesel fuel that meets the
dyeing and marking requirements of section 4082, Title 26, United
States Code, regardless of how the diesel fuel was dyed.
(32) "End seller" means the person who sells motor fuel to the
ultimate user of the motor fuel.
(33) "Export" means to obtain motor fuel in West Virginia for
sale or other distribution in another state, territory, or foreign
country.
(34) "Exporter" means a person that exports motor fuel from
this state. The seller is the exporter of motor fuel delivered
out-of-state by or for the seller, and the purchaser is the
exporter of motor fuel delivered out-of-state by or for the
purchaser.
(35) "Fuel" means motor fuel.
(36) "Fuel alcohol" means methanol or motor fuel grade
ethanol.
(37) "Fuel grade ethanol" means the ASTM standard in effect on
the effective date of this article as the D-4806 specification for
denatured motor fuel grade ethanol for blending with gasoline.
(38) "Fuel supply tank" means any receptacle on a motor
vehicle from which motor fuel is supplied for the propulsion of the
motor vehicle.
(39) "Gallon" means a unit of liquid measure as customarily
used in the United States containing 231 cubic inches by
volume.(40) "Gasohol" means a blended motor fuel composed of
gasoline and motor fuel alcohol.
(41) "Gasoline" means any product commonly or commercially
known as gasoline, regardless of classification, that is advertised
as, offered for sale as, sold for use as, suitable for use as or
used as motor fuel in an internal combustion engine, including
gasohol, but does not include special fuel as defined in this
section.
(42) "Gasoline blend stocks" includes any petroleum product
component of gasoline, such as naphtha, reformate, or toluene,
listed in Treas. Reg. §48.4081-1(c)(3) that can be blended for
use in a motor fuel. However, the term does not include any
substance that will be ultimately used for consumer nonmotor fuel
use and is sold or removed in drum quantities of fifty-five gallons
or less at the time of the removal or sale.
(43) "Gross gallons" means the total measured product,
exclusive of any temperature or pressure adjustments, considerations or deductions, in U.S. gallons.
(44) "Governmental entity" means this state or any political
subdivision thereof or the United States or its commissioners,
agencies and instrumentalities.
(45) "Heating oil" means any combustible liquid, including,
but not limited, to #1 fuel oil, #2 dyed fuel oil and kerosene,
that is burned in a boiler, furnace, or stove for heating or for
industrial processing purposes.
(46) "Highway" means every way or place of whatever nature
open to the use of the public for purposes of vehicular travel in
this state, including the streets and alleys in towns and cities.
(47) "Highway vehicle" means any self-propelled vehicle,
trailer or semitrailer that is designed or used for transporting
persons or property over the public highway, and includes all
vehicles subject to registration under article three, chapter
seventeen-a of this code.
(48) "Import" means to bring motor fuel into this state by
motor vehicle, marine vessel, pipeline, or any other means.
However, import does not include bringing motor fuel into this
state in the motor fuel supply tank of a motor vehicle, if the
motor fuel is used to power that motor vehicle.
(49) "Importer" means a person that imports motor fuel into
this state. The seller is the importer for motor fuel delivered
into this state from outside of this state by or for the seller,
and the purchaser is the importer for motor fuel delivered into this state from outside of this state by or for the purchaser.
(50) "Import verification number" means the number assigned by
the commissioner with respect to a single transport vehicle
delivery into this state from another state upon request for an
assigned number by an importer or the transporter carrying taxable
motor fuel into this state for the account of an importer.
(51) "In this state" means the area within the borders of West
Virginia, including all territory within the borders of West
Virginia that is owned by the United States of America.
(52) "Invoiced gallons" means the gallons actually billed on
an invoice for payment.
(53) "Licensee" means any person licensed by the commissioner
pursuant to section ten of this article.
(54) "Liquid" means any substance that is liquid above its
freezing point.
(55) "Liquefied natural gas" means natural gas that has been
liquefied at -126.1 degrees centigrade and stored in insulated
cryogenic tanks for use as an engine motor fuel.
(56) "Motor carrier" means any vehicle used, designated or
maintained for the transportation of persons or property and having
two axles and a gross vehicle weight exceeding twenty-six thousand
pounds or having three or more axles regardless of weight or is
used in combination when the weight of the combination exceeds
twenty-six thousand pounds or registered gross vehicle weight, and
any aircraft, barge or other watercraft or railroad locomotive transporting passengers or freight in or through this state:
Provided, That the gross vehicle weight rating of the vehicles
being towed is in excess of ten thousand pounds. The term motor
carrier does not include any type of recreational vehicle.
(57) "Motor fuel" means gasoline, blended fuel, aviation fuel
and any special fuel.
(58) "Motor fuel transporter" means a person who transports
motor fuel outside the bulk transfer/terminal system by means of a
transport vehicle, a railroad tank car, or a marine vessel.
(59) "Motor vehicle" means automobiles, motor carriers, motor
trucks, motorcycles and all other vehicles or equipment, engines or
machines which are operated or propelled by combustion of motor
fuel.
(60) "Net gallons" means the amount of motor fuel measured in
gallons when adjusted to a temperature of sixty degrees fahrenheit
and a pressure of fourteen and seven-tenths pounds pressure per
square inch.
(61) "Permissive supplier" is a person who may not be subject
to the taxing jurisdiction of this state, but who meets both of the
following requirements: (A) Is registered under section 4101 of the
Internal Revenue Code for transactions in motor fuel in the bulk
transfer/terminal system; and (B) a position holder in motor fuel
only located in another state or a person who receives motor fuel
only in another state pursuant to a two-party exchange: Provided, That a person is classified as a supplier if it has or maintains,
occupies or uses, within this state, directly or by a subsidiary,
an office, distribution house, sales house, warehouse, or other
place of business, or any agent (by whatever name called) operating
within this state under the authority of the supplier or its
subsidiary.
(62) "Person" means any individual; firm; cooperative;
association; corporation; limited liability corporation; trust;
business trust; syndicate; partnership; limited liability
partnership; joint venture; receiver; trustee in bankruptcy; club,
society or other group or combination acting as a unit; or public
body, including, but not limited to, this state, any other state,
and any agency, commissioner, institution, political subdivision or
instrumentality of this state or any other state.
(63) "Position holder" means the person who holds the
inventory position in motor fuel in a terminal, as reflected on the
records of the terminal operator. A person holds the inventory
position in motor fuel when that person has a contract with the
terminal operator for the use of storage facilities and terminaling
services for motor fuel at the terminal. The term includes a
terminal operator who owns motor fuel in the terminal.
(64) "Principal" means:
(A) If a partnership, all its partners;
(B) If a corporation, all its officers, directors, and
controlling direct or indirect owners;
(C) If a limited liability company, all its members; or
(D) An individual.
(65) "Rack" means a mechanism for delivering motor fuel from
a refinery, terminal, marine vessel, or bulk plant into a transport
vehicle, railroad tank car, or other means of transfer that is
outside the bulk transfer/terminal system.
(66) "Railroad locomotive" means any diesel-powered equipment
or machinery that rides on railroad rails, and includes a switching
engine.
(67) "Receive" means any acquisition of ownership or
possession of motor fuel.
(68) "Refiner" means any person who owns, operates or
otherwise controls a refinery.
(69) "Refinery" means a facility for the manufacture or
reprocessing of finished or unfinished petroleum products usable as
motor fuel and from which motor fuel may be removed by pipeline or
marine vessel or at a rack.
(70) "Removal" means a physical transfer other than by
evaporation, loss, or destruction. A physical transfer to a
transport vehicle or other means of conveyance outside the bulk
transfer/terminal system is complete upon delivery into the means
of conveyance.
(71) "Retailer" means a person who sells motor fuel at retail
or dispenses motor fuel at a retail location.
(72) "Special fuel" means any gas or liquid, other than gasoline, used or suitable for use as motor fuel in an internal
combustion engine or motor to propel any form of vehicle, machine,
or mechanical contrivance, and includes products commonly known as
natural or casing-head gasoline, diesel fuel, dyed diesel fuel,
biodiesel fuel, transmix, and all forms of motor fuel commonly or
commercially known or sold as butane, propane, liquefied natural
gas, liquefied petroleum gas, compressed natural gas product, or a
combination of liquefied petroleum gas and a compressed natural gas
product. "Special fuel" does not include any petroleum product or
chemical compound such as alcohol, industrial solvent, heavy
furnace oil, or lubricant, unless blended in or sold for use as
motor fuel in an internal combustion engine.
(73) "State" or "this state" means the state of West Virginia.
(74) "Supplier" means a person that is:
(A) Subject to the general taxing jurisdiction of this state;
(B) Registered under section 4101 of the Internal Revenue Code
for transactions in motor fuel in the bulk transfer/terminal
distribution system; and
(C) One of the following:
(i) A position holder in motor fuel in a terminal or refinery
in this state and may concurrently also be a position holder in
motor fuel in another state; or
(ii) A person who receives motor fuel in this state pursuant
to a two-party exchange.
A terminal operator shall not be considered a supplier based solely on the fact that the terminal operator handles motor fuel
consigned to it within a terminal.
(75) "Tax" or "this tax" is the motor fuel excise tax imposed
by this article fourteen-c and includes within its meaning
interest, additions to tax and penalties, unless the context
requires a more limited meaning.
(76) "Taxpayer" means any person required to file a return for
the tax imposed by this article or any person liable for payment of
the tax imposed by this article.
(77) "Terminal" means a motor fuel storage and distribution
facility to which a terminal control number has been assigned by
the Internal Revenue Service, to which motor fuel is supplied by
pipeline or marine vessel, and from which motor fuel may be removed
at a rack.
(78) "Terminal operator" means a person who owns, operates or
otherwise controls a terminal.
(79) "Transmix" means: (A) The buffer or interface between two
different products in a pipeline shipment; or (B) a mix of two
different products within a refinery or terminal that results in an
off-grade mixture.
(80) "Transport vehicle" means a vehicle designed or used to
carry motor fuel over the highway and includes a straight truck, a
straight truck/trailer combination and a semitrailer combination
rig.
(81) "Trustee" means a person who is licensed as a supplier or a permissive supplier and receives tax payments from and on behalf
of another pursuant to section twenty-four of this article.
(82) "Two-party exchange" means a transaction in which motor
fuel is transferred from one licensed supplier or permissive
supplier to another licensed supplier or permissive supplier
pursuant to an exchange agreement, and:
(A) Includes a transfer from the person who holds the
inventory position in taxable motor fuel in the terminal as
reflected on the records of the terminal operator;
(B) Is completed prior to removal of the product from the
terminal by the receiving exchange partner; and
(C) Is recorded on the terminal operator's books and records
with the receiving exchange partner as the supplier that removes
the motor fuel across the terminal rack for purposes of reporting
the transaction to this state.
(83) "Use" means the actual consumption or receipt of motor
fuel by any person into a motor vehicle, aircraft, or watercraft.
(84) "Watercraft" means any vehicle used on waterways.
§11-14C-3. Rules; forms.
The commissioner may promulgate rules in accordance with
article three, chapter twenty-nine-a of this code that are
necessary to effectuate and enforce this article. The commissioner
may also prescribe forms necessary to effectuate and enforce this
article, and provide other necessary guidelines on the administration of this article.
§11-14C-4. Exchange of information; criminal penalty for
unauthorized disclosure.
(a) The commissioner may enter into written agreements with
duly constituted tax officials of other states and of the United
States for the inspection of tax returns, the making of audits, the
exchange of information relating to taxes administered by the
commissioner pursuant to this article, and providing information
relative to the production, manufacture, refining, compounding,
receipt, sale, use, transportation, or shipment by any person of
motor fuel.
(b) The commissioner may divulge tax information to the
commissioner of the division of highways: Provided, That the
information disclosure requirements of section five-d, article ten
of this chapter are satisfied.
(c) The commissioner may provide to any person a list of
licensees. The list shall state the name, business address and, if
available, telephone number of each licensee on the list.
(d) Any person to whom tax information is divulged pursuant to
this section is subject to the prohibitions and penalties
prescribed in article ten of this chapter as though that person was
an employee of the state tax division.
PART 2. MOTOR FUEL TAX; LIABILITY.
§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 twenty and one-half cents 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 the first day of January, two thousand four:
Provided, however, That on and after the first day of August, two
thousand seven, the flat rate portion of the motor fuel excise tax
shall be fifteen and one-half cents per gallon: Provided further,
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 ninety-seven
cents 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 this
section and each first day of January 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 the first
day of July through the thirty-first day of October. Notification
of the average wholesale price of motor fuel shall be given by the tax commissioner at least thirty days in advance of each first day
of January by filing notice of the average wholesale price in the
state register, and by any other means as the tax commissioner
considers reasonable: Provided, That notice of the average
wholesale price of motor 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" 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 ninety-seven
cents per gallon of motor fuel.
(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 the first day of January, two
thousand four, 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 the first day of January,
two thousand four. 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 the first day of January, two
thousand four.
(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 the first day of January, two thousand four,
shall:
(A) Take an inventory at the close of the business day
preceding the first day of January, two thousand four, to determine
the gallons in storage for purposes of determining the floorstocks tax;
(B) Report no later than the thirty-first day of January, two
thousand four, the gallons on forms provided by the commissioner;
and
(C) Remit the tax levied under this section no later than the
first day of June, two thousand four.
(2) In the event the tax due is paid to the commissioner on or
before the thirty-first day of January, two thousand four, 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
the first day of June, two thousand four, 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-6. Point of imposition of motor fuels tax.
(a) The tax levied pursuant to section five of this article is
imposed at the time motor fuel is imported into this state, other
than by a bulk transfer, is measured by invoiced gallons received
outside this state at a refinery, terminal or bulk plant for
delivery to a destination in this state and is payable by the
person importing the motor fuel unless otherwise specified in this
section.
(b) Except as provided in subsection (a) of this section, the
tax levied pursuant to section five of this article is measured by
invoiced gallons of motor fuel removed, other than by a bulk
transfer:
(1) From the bulk transfer/terminal system within this state;
(2) From the bulk transfer/terminal system outside this state
for delivery to a location in this state as represented on the
shipping papers: Provided, That the supplier imports the motor fuel
for the account of the supplier; and
(3) Upon sale or transfer in a terminal or refinery in this
state to any person not holding a supplier's license and payable by
the person selling or transferring the motor fuel.
(c) The tax levied pursuant to section five of this article
upon motor fuel removed from a refinery or terminal in this state
shall be collected by the supplier, as shown in the records of the
terminal operator, acting as trustee, from the person removing the
motor fuel from the facility.
(d) The tax levied pursuant to section five of this article
shall not apply to motor fuel imported into this state in the motor
fuel supply tank or tanks of a motor vehicle, other than in the
motor fuel supply tank of a vehicle being hauled: Provided, That
the person owning or operating as a motor carrier is not relieved
of any taxes imposed by article fourteen-a of this chapter.
(e) The tax imposed pursuant to section five of this article
at the point that blended motor fuel is made in West Virginia
outside the bulk transfer/terminal system is payable by the
blender. The number of gallons of blended motor fuel on which the
tax is payable is the difference, if any, between the number of
gallons of blended motor fuel made and the number of gallons of previously taxed motor fuel used to make the blended motor fuel.
(f) The terminal operator of a terminal in this state is
jointly and severally liable with the supplier for the tax levied
pursuant to section five of this article and shall remit payment to
this state at the same time and on the same basis as a supplier
under section twenty-two of this article upon:
(1) The removal of motor fuel from the terminal on account of
any supplier who is not licensed in this state: Provided, That the
terminal operator is relieved of liability if the terminal operator
establishes all of the following:
(A) The terminal operator has a valid terminal operator's
license issued for the facility from which the motor fuel is
withdrawn;
(B) The terminal operator has a copy of a valid license from
the supplier as required by the commissioner; and
(C) The terminal operator has no reason to believe that any
information is false; or
(2) The removal of motor fuel that is not dyed and marked in
accordance with Internal Revenue Service requirements, if the
terminal operator provides any person with any bill of lading,
shipping paper, or similar document indicating that the motor fuel
is dyed and marked in accordance with the Internal Revenue Service
requirements.
§11-14C-7. Tax on unaccounted for motor fuel losses; liability.
(a) There is hereby annually levied a tax at the rate
specified by section five of this article on taxable unaccounted
for motor fuel losses at a terminal in this state. "Taxable
unaccounted for motor fuel losses" means the number of net gallons
of unaccounted for motor fuel losses that exceed one half of one
percent of the number of net gallons removed from the terminal
during the year by a bulk transfer or at the terminal rack.
"Unaccounted for motor fuel losses" means the difference between:
(1) The amount of motor fuel in inventory at the terminal at the
beginning of the year plus the amount of motor fuel received by the
terminal during the year; and (2) the amount of motor fuel in
inventory at the terminal at the end of the year plus the amount of
motor fuel removed from the terminal during the year. Accounted
for motor fuel losses which have been approved by the commissioner
or motor fuel losses constituting part of a transmix shall not
constitute unaccounted for motor fuel losses.
(b) The terminal operator whose motor fuel is unaccounted for
is liable for the tax levied by this section. Motor fuel received
by a terminal operator and not shown on an informational return
filed by the terminal operator with the commissioner as having been
removed from the terminal is presumed to be unaccounted for motor
fuel losses. A terminal operator may rebut this presumption by
establishing that motor fuel received at a terminal, but not shown
on an informational return as having been removed from the
terminal, was an accounted for loss or constitutes part of a transmix.
§11-14C-8. Backup tax; liability.
(a) The tax levied pursuant to section five of this article is
levied on the following:
(1) Dyed diesel fuel that is used to operate a highway vehicle
for a taxable use other than a use exempt under 26 U.S.C. §4082;
(2) Motor fuel that was allowed an exemption from the motor
fuel tax and was then used or consumed on a highway; and
(3) Motor fuel that is used to operate a highway vehicle after
an application for a refund of tax paid on the motor fuel is made
or allowed on the basis that the motor fuel was used for an
off-highway purpose.
(b) The operator of a highway vehicle that uses untaxed or
refunded motor fuel that is taxable under this section is liable
for the tax. If the highway vehicle that uses the motor fuel is
owned by or leased to a motor carrier, the operator of the highway
vehicle and the motor carrier are jointly and severally liable for
the tax. If the end seller of motor fuel taxable under this
section knew or had reason to know that the motor fuel would be
used for a purpose that is taxable under this section, the operator
of the highway vehicle and the end seller are jointly and severally
liable for the tax.
(c) The tax liability levied by this section is in addition to
any other penalty imposed pursuant to this article.
§11-14C-9. Exemptions from tax; claiming refunds of tax.
(a) Per se exemptions for flat rate. -- Sales of motor fuel
to the following, or as otherwise stated in this subsection, is
exempt per se from the flat rate of the tax levied by section five
of this article and the flat rate shall not be paid at the rack:
(1) All motor fuel exported from this state to any other state
or nation: Provided, That the supplier collects and remits to the
destination state or nation the appropriate amount of tax due on
the motor fuel transported to that state or nation: Provided,
however, That this exemption shall not apply to any motor fuel
which is transported and delivered outside this state in the motor
fuel supply tank of a highway vehicle;
(2) Sales of aircraft fuel;
(3) All sales of dyed special fuel; and
(4) Sales of propane.
(b) Per se exemptions for variable component. -- Sales of
motor fuel to the following are exempt per se from the variable
component of the tax levied by section five of this article and the
variable component shall not be paid at the rack:
All motor fuel exported from this state to any other state or
nation: Provided, That the supplier collects and remits to the
destination state or nation the appropriate amount of tax due on
the motor fuel transported to that state or nation: Provided,
however, That this exemption shall not apply to any motor fuel which is transported and delivered outside this state in the motor
fuel supply tank of a highway vehicle.
(c) Refundable exemptions for flat rate. -- Any person having
a right or claim to any of the following exemptions to the flat
rate of the tax levied by section five of this article that is set
forth in this subsection shall first pay the tax levied by this
article and then apply to the tax commissioner for a refund:
(1) The United States or any agency thereof;
(2) Any county government or unit or agency thereof;
(3) Any municipal government or any agency thereof;
(4) Any county boards of education;
(5) Any urban mass transportation authority created pursuant
to the provisions of article twenty-seven, chapter eight of this
code;
(6) Any municipal, county, state or federal civil defense or
emergency service program pursuant to a government contract for use
in conjunction therewith, or to any person on whom is imposed a
requirement to maintain an inventory of motor fuel for the purpose
of the program: Provided, That motor fueling facilities used for
these purposes are not capable of fueling motor vehicles and the
person in charge of the program has in his or her possession a
letter of authority from the tax commissioner certifying his or her
right to the exemption: Provided, however, That in order for this
exemption to apply, motor fuel sold under subdivisions (1) through (6) of this subsection shall be used in vehicles or equipment owned
and operated by the respective government entity or government
agency or authority and purchased for delivery in bulk quantities
of five hundred gallons or more;
(7) All gallons of motor fuel purchased by a licensed exporter
and subsequently exported from this state to any other state or
nation: Provided, That the exporter has paid the applicable motor
fuel tax to the destination state or nation prior to claiming this
refund: Provided, however, That a refund shall not be granted on
any motor fuel which is transported and delivered outside this
state in the motor fuel supply tank of a highway vehicle;
(8) All gallons of motor fuel used and consumed in stationary
off-highway turbine engines;
(9) All gallons of special fuel used for heating any public or
private dwelling, building or other premises;
(10) All gallons of special fuel used for boilers;
(11) All gallons of motor fuel used as a dry cleaning solvent
or commercial or industrial solvent;
(12) All gallons of motor fuel used as lubricants, ingredients
or components of any manufactured product or compound;
(13) All gallons of motor fuel sold for use or used as a motor
fuel for commercial watercraft;
(14) All gallons of special fuel sold for use or consumed in
railroad diesel locomotives;
(15) All gallons of motor fuel purchased in quantities of
twenty-five gallons or more for use as a motor fuel for internal
combustion engines not operated upon highways of this state;
(16) All gallons of motor fuel purchased in quantities of
twenty-five gallons or more and used to power a power take-off unit
on a motor vehicle. When a motor vehicle with auxiliary equipment
uses motor fuel and there is no auxiliary motor for the equipment
or separate tank for a motor, the person claiming the refund may
present to the tax commissioner a statement of his or her claim and
is allowed a refund for motor fuel used in operating a power take-
off unit on a cement mixer truck or garbage truck equal to twenty-
five percent of the tax levied by this article paid on all motor
fuel used in such a truck;
(17) Motor fuel used by any person regularly operating any
vehicle under a certificate of public convenience and necessity or
under a contract carrier permit for transportation of persons, when
purchased in an amount of twenty-five gallons or more: Provided,
That the amount refunded is equal to six cents per gallon:
Provided, however, That the gallons of motor fuel shall have been
consumed in the operation of urban and suburban bus lines, and the
majority of passengers use the bus for traveling a distance not
exceeding forty miles, measured one way, on the same day between
their places of abode and their places of work, shopping areas or
schools; and
(18) All gallons of motor fuel that are not otherwise exempt
under subsection (a) of this section and that are purchased and
used by any bona fide volunteer fire department, nonprofit
ambulance service or emergency rescue service that has been
certified by the municipality or county wherein the bona fide
volunteer fire department, nonprofit ambulance service or emergency
rescue service is located.
(d) Refundable exemptions for variable rate. -- Any of the
following persons may claim an exemption to the variable rate of
the tax levied by section five of this article on the purchase and
use of motor fuel by first paying the tax levied by this article
and then applying to the tax commissioner for a refund.
(1) The United States or any agency thereof;
(2) This state and its institutions;
(3) Any county government or unit or agency thereof;
(4) Any municipal government or any agency thereof;
(5) Any county boards of education;
(6) Any urban mass transportation authority created pursuant
to the provisions of article twenty-seven, chapter eight of this
code;
(7) Any municipal, county, state or federal civil defense or
emergency service program pursuant to a government contract for use
in conjunction therewith, or to any person on whom is imposed a
requirement to maintain an inventory of motor fuel for the purpose of the program: Provided, That fueling facilities used for these
purposes are not capable of fueling motor vehicles and the person
in charge of the program has in his or her possession a letter of
authority from the tax commissioner certifying his or her right to
the exemption;
(8) Any bona fide volunteer fire department, nonprofit
ambulance service or emergency rescue service that has been
certified by the municipality or county wherein the bona fide
volunteer fire department, nonprofit ambulance service or emergency
rescue service is located; or
(9) All gallons of motor fuel purchased by a licensed exporter
and subsequently exported from this state to any other state or
nation: Provided, That the exporter has paid the applicable motor
fuel tax to the destination state or nation prior to claiming this
refund: Provided, however, That a refund shall not be granted on
any motor fuel which is transported and delivered outside this
state in the motor fuel supply tank of a highway vehicle.
(e) The provision in subdivision (9), subsection (a), section
nine, article fifteen of this chapter that exempts as a sale for
resale those sales of gasoline and special fuel by a distributor or
importer to another distributor shall not apply to sales of motor
fuel under this article.
PART 3. MOTOR FUEL LICENSING.
§11-14C-10. Persons required to be licensed.
(a) A person shall obtain the appropriate license or licenses
issued by the commissioner before conducting the activities of:
(1) A supplier which includes a refiner;
(2) A permissive supplier;
(3) An importer;
(4) An exporter;
(5) A terminal operator;
(6) A blender;
(7) A motor fuel transporter; or
(8) A distributor.
(b) A person who is engaged in more than one activity for
which a license is required shall have a separate license for each
activity, except as otherwise determined by the commissioner.
§11-14C-11. License application procedure.
(a) To obtain a license under this article, an applicant shall
file an application with the commissioner on a form provided by the
commissioner. The application shall include the applicant's name,
address, federal employer identification number, and any other
information required by the commissioner.
(b) An applicant for a license as a supplier, permissive
supplier, terminal operator, importer, blender, or distributor,
shall satisfy the following requirements:
(1) If the applicant is a corporation, the applicant shall
either be incorporated in this state or authorized to transact business in this state;
(2) If the applicant is a limited liability company, the
applicant shall either be organized in this state or authorized to
transact business in this state;
(3) If the applicant is a limited liability partnership, the
applicant shall either be formed in this state or authorized to
transact business in this state; and
(4) If the applicant is an individual or a general
partnership, the applicant shall designate an agent for service of
process and provide the agent's name and address.
(c) An applicant for a license as a supplier, permissive
supplier, terminal operator, or blender shall have a federal
certificate of registry issued under 26 U.S.C. §4101 that
authorizes the applicant to enter into federal tax-free
transactions in taxable motor fuel in the terminal transfer system.
An applicant that is required to have a federal certificate of
registry shall include the registration number of the certificate
on the application for a license under this section. An applicant
for a license as an importer, an exporter, or a distributor who has
a federal certificate of registry issued under 26 U.S.C. §4101
shall include the registration number of the certificate on the
application for a license under this section.
(d) An applicant for a license as an importer or distributor
shall list on the application each state from which the applicant intends to import motor fuel and, if required by a state listed,
shall be licensed or registered for motor fuel tax purposes in that
state. If a state listed requires the applicant to be licensed or
registered, the applicant shall provide the applicant's license or
registration number of that state. A licensee who intends to
import motor fuel from a state not listed on its application for an
importer's license or a distributor's license shall provide the
commissioner written notice of the action before importing motor
fuel from that state. The notice shall include the information
that is required on the license application.
(e) An applicant for a license as an exporter shall designate
an agent located in West Virginia for service of process and
provide the agent's name and address. An applicant for a license
as an exporter or distributor shall list on the application each
state to which the applicant intends to export motor fuel received
in West Virginia by means of a transfer that is outside the
terminal transfer system and, if required by a state listed, shall
be licensed or registered for motor fuel tax purposes in that
state. If a state listed requires the applicant to be licensed or
registered, the applicant shall provide the applicant's license or
registration number of that state. A licensee who intends to
export motor fuel to a state not listed on its application for an
exporter's license or a distributor's license shall provide the
commissioner written notice of the action before exporting motor fuel to that state. The notice shall include the information
required on the license application.
(f) An applicant for a license as a motor fuel transporter
shall list on the application each state from which and to which
the applicant intends to transport motor fuel and, if required by
a state listed, shall be licensed or registered for motor fuel tax
purposes in that state. If a state listed requires the applicant
to be licensed or registered, the applicant shall provide the
applicant's license or registration number of that state. A
licensee who intends to transport motor fuel from or to a state not
listed on its application for a motor fuel transporter's license
shall provide the commissioner written notice of the action before
transporting motor fuel from or to that state. The notice shall
include the information that is required on the license
application.
§11-14C-12. Permissive supplier requirements on out-of-state
removals.
(a) A person may elect to obtain a permissive supplier license
to collect the tax levied by section five of this article for motor
fuel that is removed at a terminal in another state and has West
Virginia as the destination state.
(b) A licensed permissive supplier shall comply with all of
the following requirements with respect to motor fuel that is
removed by that licensed permissive supplier at a terminal located in another state and has West Virginia as the destination state:
(1) Collect the tax due this state on the motor fuel;
(2) Waive any defense that this state lacks jurisdiction to
require the supplier to collect the tax due this state on the motor
fuel under this article;
(3) Report and pay the tax due on the motor fuel in the same
manner as if the removal had occurred at a terminal located in West
Virginia;
(4) Keep records of the removal of the motor fuel and submit
to audits concerning the motor fuel as if the removal had occurred
at a terminal located in West Virginia; and
(5) Report sales by the supplier not engaged in business in
this state to a person who is not licensed in the state where the
removal occurred if the destination state is West Virginia.
(c) A licensed permissive supplier acknowledges that this
state imposes the requirements listed in subsection (b) of this
section under its general police power and submits to the
jurisdiction of this state only for purposes related to the
administration of this article.
§11-14C-13. Bond requirements.
(a) There shall be filed with an application for a license
required by section eleven of this article either a cash bond or a
continuous surety bond in the amount or amounts specified in this
section: 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
requirements that the commissioner is to be notified of
cancellation at least sixty days prior to the continuous surety
bond being canceled, an annual notice of renewal is not required.
The bond, whether a cash bond or a continuous surety bond, shall be
conditioned upon compliance with the requirements of this article,
be payable to this state, and be in the form required by the
commissioner. The amount of the bond is as follows:
(1) For a supplier license, the amount shall be no less than
one hundred thousand dollars nor greater than two million dollars;
(2) For a permissive supplier license, the amount shall be no
less than one hundred thousand dollars nor greater than two million
dollars;
(3) For a terminal operator license, the amount shall be no
less than one hundred thousand dollars nor greater than two million
dollars;
(4) For an importer license for a person, other than a
supplier, that imports by transport vehicle or another means of
transfer outside the bulk transfer/terminal system motor fuel
removed from a terminal located in another state in which: (A) The
state from which the motor fuel is imported does not require the
seller of the motor fuel to collect a motor fuel excise tax on the
removal either at that state's rate or the rate of the destination state; and (B) the seller of the motor fuel is not a permissive
supplier, the amount shall be no less than one hundred thousand
dollars nor greater than two million dollars;
(5) For an importer license for a person that imports by
transport vehicle or another means outside the bulk
transfer/terminal system motor fuel removed from a terminal located
in another state in which: (A) The state from which the motor fuel
is imported requires the seller of the motor fuel to collect a
motor fuel excise tax on the removal either at that state's rate or
the rate of the destination state; or (B) the seller of the motor
fuel is a permissive supplier, the amount shall be a minimum of two
thousand dollars or an amount equal to three months tax liability,
whichever is greater: Provided, That the amount shall not exceed
three hundred thousand dollars: Provided, however, That when
required by the commissioner to file a cash bond or a continuous
surety bond in an additional amount, the licensee shall comply with
the commissioner's notification within thirty days after receiving
that notification;
(6) For a license as both a distributor and an importer as
described in subdivision (4) of this subsection, the amount shall
be no less than one hundred thousand dollars nor greater than two
million dollars;
(7) For a license as both a distributor and an importer as
described in subdivision (5) of this subsection, the amount shall be a minimum of two thousand dollars or an amount equal to three
months tax liability, whichever is greater: Provided, That the
amount shall not exceed three hundred thousand dollars: Provided,
however, That when required by the commissioner to file a cash bond
or a continuous surety bond in an additional amount, the licensee
shall comply with the commissioner's notification within thirty
days after receiving that notification;
(8) For an exporter license, the amount shall be a minimum of
two thousand dollars or an amount equal to three months tax
liability, whichever is greater: Provided, That the amount shall
not exceed three hundred thousand dollars: Provided, however, That
when required by the commissioner to file a cash bond or a
continuous surety bond in an additional amount, the licensee shall
comply with the commissioner's notification within thirty days
after receiving that notification;
(9) For a blender license, the amount shall be a minimum of
two thousand dollars or an amount equal to three months tax
liability, whichever is greater: Provided, That the amount shall
not exceed three hundred thousand dollars: Provided, however, That
when required by the commissioner to file a cash bond or a
continuous surety bond in an additional amount, the licensee shall
comply with the commissioner's notification within thirty days
after receiving that notification;
(10) For a distributor license, the amount shall be a minimum of two thousand dollars or an amount equal to three months tax
liability, whichever is greater: Provided, That the amount shall
not exceed three hundred thousand dollars: Provided, however, That
when required by the commissioner to file a cash bond or a
continuous surety bond in an additional amount, the licensee shall
comply with the commissioner's notification within thirty days
after receiving that notification;
(11) For a motor fuel transporter license, there shall be no
bond; and
(12) An applicant for a licensed activity listed under
subdivisions (1) through (10) of this subsection may in lieu of
posting either the cash bond or continuous surety bond required by
this subsection (a) provide proof of financial responsibility
acceptable to the commissioner: Provided, That the proof of
financial responsibility shall demonstrate the absence of
circumstances indicating risk with the collection of taxes from the
applicant: Provided, however, That the following shall constitute
proof of financial responsibility:
(A) Proof of five million dollars net worth shall constitute
evidence of financial responsibility in lieu of posting the
required bond;
(B) Proof of two million five hundred thousand dollars net
worth constitutes financial responsibility in lieu of posting fifty
per cent of the required bond; and
(C) Proof of one million two hundred fifty thousand dollars
net worth constitutes financial responsibility in lieu of posting
twenty-five per cent of the required bond. Net worth is calculated
on a business, not individual basis.
(13) In lieu of providing either cash bond, a continuance
surety bond or proof of financial responsibility acceptable to the
commissioner, an applicant for a licensed activity listed under
this subsection that has established with the state tax division a
good filing record that is accurate, complete and timely for the
preceding eighteen months shall be granted a waiver of the
requirement to file either a cash bond or continuance surety bond:
Provided, That when a licensee that has been granted a waiver of
the requirement to file a bond violates a provision of this
article, the licensee shall file the applicable bond as stated in
this subsection.
(14) Any licensee who disagrees with the commissioner's
decision requiring new or additional security may seek a hearing by
filing a petition with the office of tax appeals in accordance with
the provisions of section nine, article ten-a of this chapter:
Provided, That the hearing shall be provided within thirty days
after receipt by the office of tax appeals of the petition for the
hearing.
(b) The surety must be authorized to engage in business within
this state. The cash bond and the continuous surety bond are conditioned upon faithful compliance with the provisions of this
article, including the filing of the returns and payment of all tax
prescribed by this article. The cash bond and the continuous
surety bond shall be approved by the commissioner as to sufficiency
and form, and shall indemnify the state against any loss arising
from the failure of the taxpayer to pay for any cause whatever the
motor fuel excise tax levied by this article.
(c) Any surety on a continuous surety bond furnished hereunder
shall be relieved, released and discharged from all liability
accruing on the bond after the expiration of sixty days from the
date the surety shall have lodged, by certified mail, with the
commissioner a written request to be discharged. Discharge from
the continuous surety bond shall 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 herein provided, it is the duty of the principal
of the bond to supply the commissioner with another continuous
surety bond or a cash bond prior to the expiration of the original
bond. Failure to provide a new continuous surety bond or a cash
bond shall result in the commissioner canceling each license and
registration previously issued to the person.
(d) Any taxpayer that has furnished a cash bond hereunder
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 cash bond until such time as 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 herein
provided, it is the duty of the taxpayer to provide the
commissioner with another cash bond or a continuous surety bond
prior to the expiration of the original cash bond. Failure to
provide either a new cash bond or a continuous surety bond shall
result in the commissioner canceling each license and registration
previously issued to the taxpayer.
§11-14C-14. Grounds for denial of license.
(a) The commissioner may refuse to issue a license under this
article if the applicant or any principal of the applicant that is
a business entity has:
(1) Had a license or registration issued under prior law or
this article canceled by the commissioner for cause;
(2) Had a motor fuel license or registration issued by another
state canceled for cause;
(3) Had a federal certificate of registry issued under section
4101 of the Internal Revenue Code, or a similar federal authorization, revoked;
(4) Been convicted of any offense involving fraud or
misrepresentation; or
(5) Been convicted of any other offense that indicates that
the applicant may not comply with this article if issued a license.
§11-14C-15. Issuance of license.
Upon approval of an application, the commissioner shall issue
to the applicant the appropriate license or licenses for each place
of business of the applicant. Each licensee shall display the
license issued under this article in a conspicuous place at each of
the licensee's places of business. A license is not transferable
and remains in effect until surrendered or canceled.
§11-14C-16. Notice of discontinuance, sale or transfer of
business.
(a) A licensee who discontinues the business for which was
issued a license authorized by this article shall notify the
commissioner in writing within fifteen days of discontinuance and
shall surrender the license to the commissioner. The notice shall
state the effective date of the discontinuance and, if the licensee
has transferred the business or otherwise relinquished control to
another person by sale or otherwise, the date of the sale or
transfer and the name and address of the person to whom the
business is transferred or relinquished. The notice shall also
include any other information required by the commissioner.
(b) All taxes for which the licensee is liable under this
article but are not yet due are due on the date of the
discontinuance. If the licensee has transferred the business to
another person and does not give the notice required by this
section, the person to whom the business was transferred is jointly
and severally liable for the amount of any tax owed by the licensee
to this state on the date the business was transferred. The
liability of the person to whom the business was transferred shall
not exceed the value of the property acquired from the licensee.
§11-14C-17. License cancellation.
(a) The commissioner may cancel the license of any person
licensed under this article, upon written notice sent by registered
mail to the licensee's last known address, or to the licensee's
designated agent for service of process, appearing in the
commissioner's files, for any of the following reasons:
(1) Filing by the licensee of a false report of the data or
information required by this article;
(2) Failure, refusal, or neglect of the licensee to file a
report or information required by this article;
(3) Failure of the licensee to pay the full amount of the tax
due or pay any penalties or interest due as required by this
article;
(4) Failure of the licensee to keep accurate records of the
quantities of motor fuel received, produced, refined, manufactured, compounded, sold, or used in West Virginia;
(5) Failure to file a new or additional cash bond or
continuous surety bond upon request of the commissioner pursuant to
section thirteen of this article;
(6) Conviction of the licensee or a principal of the licensee
for any act prohibited under this article;
(7) Failure, refusal, or neglect of a licensee to comply with
any other provision of this article or any rule promulgated
pursuant to this article; or
(8) A change in the ownership or control of the business.
(b) Upon cancellation of any license for any cause listed in
subsection (a) of this section, the tax levied under this article
becomes due and payable on all untaxed motor fuel held in storage
or otherwise in the possession of the licensee and all motor fuel
sold, delivered, or used prior to the cancellation on which the tax
has not been paid.
(c) The commissioner may cancel any license upon the written
request of the licensee.
(d) Upon cancellation of any license and payment by the
licensee of all taxes due, including all penalties accruing due to
any failure by the licensee to comply with the provisions of this
article, the commissioner shall cancel and surrender the bond,
filed by the licensee: Provided, That the requirements of section
thirteen of this article are satisfied.
§11-14C-18. Records and lists of license applicants and licensees.
(a) The Commissioner shall maintain a record of:
(1) All applicants for a license under this article;
(2) All persons to whom a license has been issued under this
article; and
(3) All persons holding a current license issued under this
article, by license category.
(b) The commissioner shall provide a list of licensees to any
person who requests a copy. The list shall state the name,
business address, and, if available, telephone number of each
licensee on the list and may include other information determined
appropriate by the commissioner.
PART 4. PAYMENT AND REPORTING OF TAX ON MOTOR FUEL.
§11-14C-19. When tax return and payment are due.
(a) The tax levied by this article shall be paid by each
taxpayer on or before the last day of the calendar month by check,
bank draft, or money order payable to the commissioner for the
amount of tax due, if any, for the preceding month: Provided, That
the commissioner may require all or certain taxpayers to file tax
returns and payments electronically. The return required by the
commissioner shall accompany the payment of tax: Provided, however,
That if no tax is due, the return required by the commissioner
shall be completed and filed before the last day of the calendar
month for the preceding month.
(b) The following shall file a monthly return as required by
this section:
(1) A terminal operator;
(2) A supplier;
(3) An importer;
(4) A blender;
(5) A person incurring liability under section eight of this
article for the backup tax on motor fuel;
(6) A permissive supplier;
(7) A motor fuel transporter; and
(8) An exporter.
§11-14C-20. Remittance of tax to supplier or permissive supplier.
(a) Each licensed distributor and licensed importer shall
remit to the supplier or permissive supplier, as applicable, of the
motor fuel the tax levied by section five of this article and due
on motor fuel removed at a terminal rack: Provided, That at the
election of a licensed distributor or licensed importer, the
supplier or permissive supplier shall not require the licensed
distributor or licensed importer to pay tax levied by section five
of this article until two days before the date the supplier or
permissive supplier is required to pay the tax to this state:
Provided, however, That an election under this subsection is
subject to the condition that remittances by the licensed
distributor or licensed importer of all tax due to the supplier or permissive supplier shall be paid by electronic funds transfer two
days before the date of the remittance by the supplier or
permissive supplier to the commissioner. An election under this
subsection may be terminated by the supplier or permissive supplier
if the licensed distributor or licensed importer does not make
timely payments to the supplier or permissive supplier as required
by this subsection.
(b) A licensed exporter shall remit tax due on motor fuel
removed at a terminal rack to the supplier of the motor fuel. The
date by which an exporter shall remit tax is governed by the law of
the destination state of the exported motor fuel: Provided, That if
the laws of the destination state prohibit the collection of the
destination state's tax, the tax levied by section five of this
article shall be collected.
(c) All tax payments received by a supplier or permissive
supplier shall be held in trust by the supplier or permissive
supplier until the supplier or permissive supplier remits the tax
payment to this state or to another state, and the supplier or
permissive supplier shall constitute the trustee for the tax
payments.
(d) The license of a licensed distributor, exporter or
importer who fails to pay the full amount of tax required by this
article is subject to cancellation.
§11-14C-21. Notice of cancellation or reissuance of licenses; effect of notice.
(a) If the commissioner cancels the license of a distributor
or importer, the commissioner shall notify all suppliers and
permissive suppliers of the cancellation. If the commissioner
issues a license to a distributor or importer whose license was
previously canceled, the commissioner shall notify all suppliers
and permissive suppliers of the issuance.
(b) A supplier or permissive supplier who sells motor fuel to
a distributor or importer after receiving notice from the
commissioner that the commissioner has canceled the distributor's
or importer's license is jointly and severally liable with the
distributor or importer for any tax due on motor fuel sold to the
distributor or importer subsequent to receipt of the notice:
Provided, That the supplier or permissive supplier is not liable
for tax due on motor fuel sold to a previously unlicensed
distributor or importer after the supplier or permissive supplier
receives notice from the commissioner that the commissioner has
issued another license to the distributor or importer.
(c) If the commissioner cancels the license of a supplier or
permissive supplier, the commissioner shall notify all licensed
distributors, exporters and importers of the cancellation. If the
commissioner issues a license to a supplier or permissive supplier
whose license was previously canceled, the commissioner shall notify all licensed distributors, exporters, and importers of the
issuance.
(d) A licensed distributor, exporter or importer who purchases
motor fuel from a supplier or permissive supplier after receiving
notice from the commissioner that the commissioner has canceled the
supplier's or permissive supplier's license is jointly and
severally liable with the supplier or permissive supplier for any
tax due on motor fuel purchased from the supplier or permissive
supplier after receiving the notice: Provided, That a licensed
distributor that purchases motor fuel from a supplier or permissive
supplier whose license has been canceled shall file a tax return on
or before the last day of the month following the month in which
the purchase occurred. The return shall include the following
information and any other information required by the commissioner:
(1) The number of invoiced gallons of tax paid motor fuel,
sorted by type of motor fuel, terminal code, name of seller, point
of origin and carrier; and
(2) The number of invoiced gallons of untaxed motor fuel,
sorted by type of motor fuel, terminal code, name of seller, point
of origin and carrier.
The licensed distributor, exporter or importer is not liable
for tax due on motor fuel purchased from a previously unlicensed
supplier or permissive supplier after the licensee receives notice
from the commissioner that the commissioner has issued another license to the supplier or permissive supplier.
§11-14C-22. Information required on return filed by supplier or
permissive supplier.
The return of each supplier and permissive supplier shall list
all of the following information and any other information required
by the commissioner:
(a) The number of gross gallons of tax-paid motor fuel
received by the supplier or permissive supplier during the month,
sorted by type of motor fuel, seller, point of origin, destination
state, and carrier;
(b) The number of gross gallons of motor fuel removed at a
terminal rack during the month from the account of the supplier,
sorted by type of motor fuel, person receiving the motor fuel,
terminal code, and carrier;
(c) The number of gross gallons of motor fuel removed during
the month for export, sorted by type of motor fuel, person
receiving the motor fuel, terminal code, destination state, and
carrier;
(d) The number of gross gallons of motor fuel removed during
the month from a terminal located in another state for conveyance
to West Virginia, as indicated on the shipping document for the
motor fuel, sorted by type of motor fuel, person receiving the
motor fuel, terminal code, and carrier;
(e) The number of gross gallons of motor fuel the supplier or permissive supplier sold during the month to a governmental entity
whose use of motor fuel is exempt from the tax, sorted by type of
motor fuel, carrier, and governmental entity receiving the motor
fuel, terminal code.
§11-14C-23. Deductions and discounts allowed a supplier and a
permissive supplier when filing a return.
(a) The supplier or permissive supplier may deduct from the
next monthly return those tax payments that were not remitted for
the previous month to the supplier or permissive supplier by any
licensed distributor or any licensed importer who removed motor
fuel on which the tax is due from the supplier's or permissive
supplier's terminal. The licensed supplier or permissive supplier
is eligible to take this deduction if the licensed supplier or
permissive supplier notifies the state within ten business days
after a return is due of any licensed distributor or importer who
did not pay to the supplier or permissive supplier the tax due by
the time the supplier or permissive supplier filed the monthly
return: Provided, That when a licensed distributor or licensed
importer fails to remit the tax to the licensed supplier or
permissive supplier, the licensed supplier or permissive supplier
is not eligible to take the deduction for any tax payments that
accrue after the ten business day period referenced above for
delinquent distributors or importers. The notice shall be
transmitted to the state in the form required by the commissioner. A supplier or permissive supplier is not liable for the tax a
licensee owes but fails to pay. If a licensee pays to a supplier
or permissive supplier the tax owed, but the payment occurs after
the supplier or permissive supplier has deducted the amount of the
tax on a return, the supplier or permissive supplier shall remit
the payment to the commissioner with the next monthly return filed
subsequent to receipt of the tax.
(b) A supplier or permissive supplier who timely files a
return with the payment due may deduct, from the amount of tax
payable with the return, an administrative discount of one tenth of
one percent of the amount of tax payable to this state, not to
exceed five thousand dollars per month.
(c) For sales from permissive suppliers or suppliers to
licensed distributors, a supplier or permissive supplier shall
deduct three fourths of one percent of the tax due from the
licensed distributor as a discount to that licensed distributor.
The discount given to the licensed distributor shall be reported on
the supplier or the permissive supplier's next monthly return.
This discount only applies to sales from permissive suppliers and
suppliers to licensed distributors, and shall not apply to any
other transactions, including, but not limited to, licensed
distributor to licensed distributor transactions: Provided, That if
the permissive supplier and/or supplier is also a licensed
distributor, this discount shall not apply.
§11-14C-24. Duties of supplier or permissive supplier as trustee.
(a) All tax payments due to this state that are received by a
supplier or permissive supplier shall be held by the supplier or
permissive supplier as trustee in trust for this state, and the
supplier or permissive supplier has a fiduciary duty to remit to
the commissioner the amount of tax received. A supplier or
permissive supplier is liable for the taxes paid to it.
(b) A supplier or permissive supplier shall notify a licensed
distributor, licensed exporter, or licensed importer who received
motor fuel from the supplier or permissive supplier during a
reporting period of the number of taxable gallons received. The
supplier or permissive supplier shall give this notice after the
end of each reporting period and before the licensee is required to
remit the amount of tax due on the motor fuel.
(c) A supplier or permissive supplier of motor fuel at a
terminal shall notify the commissioner within the time period
established by the commissioner of any licensed distributors,
licensed exporters, or licensed importers who did not pay the tax
due when the supplier or permissive supplier filed its return. The
notice shall be transmitted to the commissioner in the form
required by the commissioner.
(d) A supplier or permissive supplier who receives a payment
of tax shall not apply the payment of tax to a debt that the person
making the payment owes for motor fuel purchased from the supplier or permissive supplier.
§11-14C-25. Returns and discounts of importers.
(a) The monthly return of an importer shall contain the
following information for the period covered by the return and any
other information required by the commissioner:
(1) The number of gross gallons of imported motor fuel
acquired from a supplier or permissive supplier who collected the
tax due this state on the motor fuel;
(2) The number of gross gallons of imported motor fuel
acquired from a person who did not collect the tax due this state
on the motor fuel, listed by type of motor fuel, source state,
person, and terminal;
(3) The number of gross gallons of imported motor fuel
acquired from a bulk plant outside this state, listed by bulk plant
name, address and type of motor fuel; and
(4) The import confirmation number, as may be required under
section thirty-five of this article, of each import that is
reported under subdivision (2) or subdivision (3) of this
subsection, as applicable, and was removed from a terminal or bulk
plant.
(b) An importer that imports by transport vehicle or another
means of transfer outside the terminal transfer system motor fuel
removed from a terminal located in another state in which: (1) The
state from which the motor fuel is imported does not require the seller of the motor fuel to collect a motor fuel excise tax on the
removal either at that state's rate or the rate of the destination
state; and (2) the seller of the motor fuel is not a licensed
supplier or permissive supplier, who timely files a return with the
payment due may deduct, from the amount of tax payable with the
return, an administrative discount of one tenth of one percent of
the amount of tax payable by the importer to this state, not to
exceed five thousand dollars per month.
§11-14C-26. Informational returns of terminal operators.
(a) A terminal operator shall file with the commissioner a
monthly information return showing the amount of motor fuel
received and removed from the terminal during the month. The
return is due by the last day of the month following the month
covered by the return. The return shall contain the following
information and any other information required by the commissioner:
(1) The beginning and ending inventory which pertains to the
applicable reporting month;
(2) The number of gross gallons of motor fuel received in
inventory at the terminal during the month and each position holder
for the motor fuel;
(3) The number of gross gallons of motor fuel removed from
inventory at the terminal during the month and, for each removal,
the position holder for the motor fuel and the destination state of
the motor fuel; and
(4) The number of gross gallons of motor fuel gained or lost
at the terminal during the month.
The tax commissioner may accept the Federal ExSTARS terminal
operator report provided to the Internal Revenue Service in lieu of
the required state terminal operator report.
§11-14C-27. Informational returns of motor fuel transporters.
(a) A person who transports by marine vessel, railroad tank
car, or transport vehicle, motor fuel that is imported into West
Virginia or exported from West Virginia shall file a monthly
information return with the commissioner that shows motor fuel
received or delivered for import or export by the transporter
during the month. This requirement does not apply to a distributor
who is not required to be licensed as a motor fuel transporter.
(b) The return required by this section is due by the last day
of the month following the month covered by the return. The return
shall contain the following information and any other information
required by the commissioner:
(1) The name, address and terminal control number of each
person or terminal from whom the transporter received motor fuel
outside West Virginia for delivery in West Virginia, the invoiced
gallons of motor fuel received, the date the motor fuel was
received, and the name and address of the purchaser of the motor
fuel; and
(2) The name, address and terminal control number of each
person or terminal from whom the transporter received motor fuel in
West Virginia for delivery outside West Virginia, the invoiced
gallons of motor fuel delivered, the date the motor fuel was
delivered, and the destination state of the motor fuel.
§11-14C-28. Exports.
(a) A person who exports motor fuel from West Virginia shall
file a monthly return with the commissioner identifying the
exports. The return is due by the last day of the month following
the month covered by the return. The return shall serve as a claim
for a refund for tax paid to this state on exported motor fuel.
(b) The return shall contain the following information and any
other information required by the commissioner:
(1) The number of invoiced gallons of motor fuel exported
during the month;
(2) The destination state of the motor fuel exported during
the month; and
(3) A certification that the tax has been paid to the
destination state of the motor fuel exported during the month.
§11-14C-29. Identifying information required on return.
When a transaction with a person licensed under this article
is required to be reported on a return, the return must state the
licensee's name, address, and, if available, license number and
telephone number as stated on the lists compiled by the
commissioner under section nineteen of this article.
PART 5. REFUNDS.
§11-14C-30. Refund of taxes erroneously collected, etc.; refund
for gallonage exported or lost through casualty or
evaporation; change of rate; petition for refund.
(a) The commissioner is hereby authorized to refund from the
funds collected under the provisions of this article any tax, interest, additions to tax or penalties which have been erroneously
collected from any person.
(b) Any supplier, distributor, producer, retail dealer,
exporter or importer, while the owner of motor fuel in this state,
that loses any gallons of motor fuel through fire, lightning,
breakage, flood or other casualty, which gallons having been
previously included in the tax by or for that person, may claim a
refund of a sum equal to the amount of the flat rate of the tax
levied by section five of this article paid upon the gallons lost.
(c) Any dealer as defined in section two, article eleven-c,
chapter forty-seven of the code, and any bulk plant in this state
that purchases or receives motor fuel in this state upon which the
tax levied by section five of this article has been paid, is
entitled to an annual refund of the flat rate of the tax levied by
section five of this article for gallons lost through evaporation:
Provided, That only the owner of the bulk plant that is also the
owner of the fuel in the bulk plant may claim this refund for
gallons lost through evaporation. The refund is computed at the
flat rate of tax levied per gallon under this article on all
gallons of motor fuel actually lost due to evaporation, not
exceeding one half of one percent of the adjusted total accountable
gallons, computed as determined by the commissioner.
(d) Every supplier, distributor or producer, retail dealer,
exporter or importer is entitled to a refund of the flat rate of
the tax levied by section five of this article from this state of
the amount resulting from a change of rate decreasing the tax under the provisions of this article on motor fuel on hand and in
inventory on the effective date of the rate change, which motor
fuel has been included in any previous computation by which the tax
levied by this article has been paid.
§11-14C-31. Claiming refunds.
(a) Any person seeking a refund pursuant to subsection (b),
section nine of this article shall present to the commissioner a
petition accompanied by the original or duplicate original sales
slip or invoice from the distributor or producer or retail dealer,
as the case may be, showing the amount of the purchases, together
with evidence of payment thereof, and a statement stating how the
motor fuel was used: Provided, That sales slips or invoices marked
"duplicate" are not acceptable: Provided, however, That certified
copies of sales slips or invoices are acceptable: Provided further,
That copies of sales slips and invoices may be used with any
application for refund made under authority of subdivision (9),
subsection (c), section nine of this article when the gasoline is
used to operate tractors and gas engines or threshing machines for
agricultural purposes.
(b) Any person claiming a refund pursuant to section thirty of
this article shall file a petition in writing with the
commissioner. The petition shall be in the form and with
supporting records as required by the commissioner and made under
the penalty of perjury.
(c) The right to receive any refund under the provisions of
this section is not assignable and any assignment thereof is void and of no effect. No payment of any refund may be made to any
person other than the original person entitled. The commissioner
shall cause a refund to be made under the authority of this section
only when the claim for refund is filed with the commissioner
within the following time periods:
(1) A petition for refund under section thirty of this
article, other than for evaporation loss, shall be filed with the
commissioner within three years from the end of the month in which
the tax was erroneously or illegally paid or the gallons were
exported or lost by casualty, or in which a change of rate took
effect;
(2) A petition for refund under section thirty of this article
for evaporation loss shall be filed within three years from the end
of the year in which the evaporation occurred;
(3) A petition for refund under subsection (c), section nine
of this article shall be filed with the commissioner within six
months from the month of purchase or delivery of the motor fuel:
Provided, That any application for refund made under authority of
subdivision (9), subsection (c), section nine of this article when
the gasoline is used to operate tractors and gas engines or
threshing machines for agricultural purposes shall be filed within
twelve months from the month of purchase or delivery of the motor
fuel: Provided, however, That all persons authorized to claim a
refund under the authority of subdivision (12), subsection (c),
section nine of this article to claim a refundable exemption shall
do so no later than the thirty-first day of August for the purchases of motor fuel made during the preceding fiscal year
ending the thirtieth day of June.
(d) Any petition for a refund not timely filed is not
construed to be or constitute a moral obligation of the state of
West Virginia for payment. Every petition for refund is subject to
the provisions of section fourteen, article ten of this chapter.
(e) The commissioner may make any investigation considered
necessary before refunding to a person the tax levied by section
five of this article. The commissioner may also subject to audit
the records related to a refund of the tax levied by section five
of this article.
§11-14C-32. Payment of refund.
Whenever it appears to the satisfaction of the commissioner
that any person is entitled to a refund for taxes paid pursuant to
section five of this article, the commissioner shall forthwith
certify the amount of the refund.
PART 6. ENFORCEMENT AND ADMINISTRATION.
§11-14C-33. General procedure and administration; crimes and
penalties.
(a) Each and every provision of the "West Virginia Tax
Procedure and Administration Act" set forth in article ten of this
chapter applies to the taxes levied by this article, except as
otherwise expressly provided in this article, with like effect as
if that act were applicable only to the taxes levied by this
article and were set forth in extenso in this article.
(b) Each and every provision of the "West Virginia Tax Crimes and Penalties Act" set forth in article nine of this chapter
applies to the taxes levied by this article with like effect as if
that act were applicable only to the taxes levied by this article
and were set forth in extenso in this article.
(c) To the extent that any provision of this article is in
conflict with either article nine or article ten of this chapter,
the provision of this article shall control.
§11-14C-34. Shipping documents; transportation of motor fuel by
barge, watercraft, railroad tank car or transport
truck; civil penalty.
(a) A person shall not transport in this state any motor fuel
by barge, watercraft, railroad tank car or transport vehicle unless
the person has a shipping document for the motor fuel that complies
with this section. A terminal operator or operator of a bulk plant
shall give a shipping document to the person who operates the
barge, watercraft, railroad tank car or transport vehicle into
which motor fuel is loaded at the terminal rack or bulk plant rack.
(b) The shipping document issued by the terminal operator or
operator of a bulk plant shall contain the following information
and any other information required by the commissioner:
(1) Identification, including address, of the terminal or bulk
plant from which the motor fuel was received;
(2) Date the motor fuel was loaded;
(3) Invoiced gallons loaded;
(4) Destination state of the motor fuel, as represented by the
purchaser of the motor fuel or the purchaser's agent;
(5) In the case of aviation jet fuel, the shipping document
shall be marked with the phrase "Aviation Jet Fuel, Not for On-road
Use" or a similar phrase;
(6) In the case of dyed diesel fuel, the shipping document
shall be marked with the phrase "Dyed Diesel Fuel, Nontaxable Use
Only, Penalty for Taxable Use" or a similar phrase; and
(7) If the document is issued by a terminal operator, the
gross gallons loaded and a statement indicating the name of the
supplier that is responsible for the tax due on the motor fuel.
(c) A terminal operator or bulk plant operator may rely on the
representation made by the purchaser of motor fuel or the
purchaser's agent concerning the destination state of the motor
fuel. A purchaser is liable for any tax due as a result of the
purchaser's diversion of motor fuel from the represented
destination state.
(d) A person to whom a shipping document was issued shall:
(1) Carry the shipping document in the means of conveyance for
which it was issued when transporting the motor fuel described;
(2) Show the shipping document upon request to any
law-enforcement officer, representative of the commissioner and any
other authorized individual when transporting the motor fuel
described;
(3) Deliver motor fuel to the destination state printed on the
shipping document unless the person:
(A) Notifies the commissioner before transporting the motor fuel into a state other than the printed destination state that the
person has received instructions after the shipping document was
issued to deliver the motor fuel to a different destination state;
(B) Receives from the commissioner a confirmation number
authorizing the diversion; and
(C) Writes on the shipping document the change in destination
state and the confirmation number for the diversion; and
(4) Gives a copy of the shipping document to the person to
whom the motor fuel is delivered.
(e) The person to whom motor fuel is delivered by barge,
watercraft, railroad tank car or transport vehicle shall not accept
delivery of the motor fuel if the destination state shown on the
shipping document for the motor fuel is a state other than West
Virginia: Provided, That delivery may be accepted if the
destination state is other than West Virginia if the document
contains a diversion number authorized by the commissioner. The
person to whom the motor fuel is delivered shall examine the
shipping document to determine that West Virginia is the
destination state, and shall retain a copy of the shipping
document: (1) At the place of business where the motor fuel was
delivered for ninety days following the date of delivery; and (2)
at the place or another place for at least three years following
the date of delivery. The person who accepts delivery of motor
fuel in violation of this subsection and any person liable for the
tax on the motor fuel pursuant to section five of this article is
jointly and severally liable for any tax due on the motor fuel.
(f) Any person who transports motor fuel in a barge,
watercraft, railroad tank car or transport vehicle without a
shipping document or with a false or an incomplete shipping
document, or delivers motor fuel to a destination state other than
the destination state shown on the shipping document, is subject to
the following civil penalty.
(1) If the motor fuel is transported in a barge, watercraft or
transport vehicle, the civil penalty shall be payable by the person
in whose name the means of conveyance is registered.
(2) If the motor fuel is transported in a railroad tank car,
the civil penalty shall be payable by the person responsible for
shipping the motor fuel in the railroad tank car.
(3) The amount of the civil penalty for a first violation is
five thousand dollars.
(4) The amount of the civil penalty for each subsequent
violation is ten thousand dollars.
(5) Civil penalties prescribed under this section are
assessed, collected and paid in the same manner as the motor fuel
excise tax imposed by this article.
§11-14C-35. Import confirmation number; civil penalty.
(a) The commissioner may require an importer who acquires
motor fuel for import from a person who is not a supplier or a
permissive supplier to obtain an import confirmation number from
the commissioner before importing the motor fuel. The importer
shall write the import confirmation number on the shipping document
issued for the motor fuel. If required by the commissioner, the importer shall obtain a separate import confirmation number for
each delivery of motor fuel into West Virginia.
(b) An importer who does not obtain an import confirmation
number when required by this section is subject to the following
civil penalty.
(1) For the first violation, the amount is five thousand
dollars.
(2) For each subsequent violation the amount is ten thousand
dollars.
(c) The civil penalty is payable by the person in whose name
the transport vehicle is registered.
(d) Civil penalties prescribed under this section are
assessed, collected and paid in the same manner as the motor fuel
excise tax imposed by this article.
§11-14C-36. Improper sale or use of untaxed motor fuel; civil
penalty.
(a) Any person who commits any of the following violations is
subject to the civil penalty specified in subsection (b) of this
section:
(1) Sells or stores any dyed diesel fuel for use in a highway
vehicle that is licensed or required to be licensed as such, unless
that use is allowed under the authority of 26 U.S.C. §4082;
(2) Willfully alters or attempts to alter the strength or
composition of any dye or marker in any dyed diesel fuel;
(3) Uses dyed diesel fuel in a highway vehicle unless that use
is allowed under the authority of 26 U.S.C. §4082;
(4) Acquires, sells or stores any motor fuel for use in a
watercraft, aircraft, or highway vehicle that is licensed or
required to be licensed unless the tax levied by section five of
this article has been paid; or
(5) Uses any motor fuel in a watercraft, aircraft, or highway
vehicle that is licensed or required to be licensed unless the tax
levied by section five of this article has been paid.
(b) The amount of the civil penalty for the first two
violations of this section in a calendar year, as described in
subsection (a) of this section, is ten dollars per gallon of motor
fuel based upon the maximum capacity of the motor fuel storage
tank, container or storage tank of the highway vehicle, watercraft
or aircraft in which the motor fuel is found or one thousand
dollars, whichever is greater: Provided, That for each subsequent
violation in the same calendar year, the penalty is fifteen dollars
per gallon based upon the maximum capacity of the motor fuel
storage tank, container or storage tank of the highway vehicle,
watercraft or aircraft in which the motor fuel is found or two
thousand dollars, whichever is greater.
(c) Each violation is subject to a separate civil penalty.
(d) Civil penalties prescribed under this section shall be
assessed, collected and paid in the same manner as the motor fuel
tax.
§11-14C-37. Refusal to allow inspection or taking of fuel sample;
civil penalty.
(a) Any person who refuses to allow an inspection authorized
by section forty-seven of this article or to allow the taking of a
fuel sample authorized by section forty-seven of this article is
subject to a civil penalty of five thousand dollars for each
refusal. If the refusal is for a sample to be taken from a
vehicle, the person operating the vehicle and the owner of the
vehicle are jointly and severally liable for payment of the civil
penalty. If the refusal is for a sample to be taken from any other
storage tank or container, the owner of the storage tank or
container and the owner of the motor fuel in the storage tank or
container, if different from the owner of the storage tank or
container, are jointly and severally liable for payment of the
civil penalty.
(b) Civil penalties prescribed under this section shall be
assessed, collected and paid in the same manner as the motor fuel
tax.
§11-14C-38. Engaging in business without a license; civil penalty.
(a) Any person who engages in any business activity for which
a license is required by this article without having first obtained
and subsequently retained such a valid license is subject to the
following civil penalty.
(1) For the first violation the amount is five thousand
dollars.
(2) For each subsequent violation the amount is ten thousand
dollars.
(b) Civil penalties prescribed under this section shall be
assessed, collected and paid in the same manner as the motor fuel
tax.
§11-14C-39. Preventing a person from obtaining a license; civil
penalty.
(a) Any terminal operator, supplier, or position holder in a
terminal who, by use of coercion, threat, intimidation or any other
means of interference, intentionally prevents any person from
applying for or obtaining a license issued under this article is
subject to the following civil penalty.
(1) For the first violation the amount is five thousand
dollars.
(2) For each subsequent violation the amount is ten thousand
dollars.
(b) Civil penalties prescribed under this section shall be
assessed, collected and paid in the same manner as the motor fuel
tax.
§11-14C-40. Filing a false return; failure to file return; civil
penalty.
(a) Any person liable for a tax levied under this article who
files a false return, report or document under the provisions of
this article with the intent to evade the tax levied by section
five of this article is subject to a civil penalty equal to the
total amount of tax evaded, or not collected, by the filing of a
return, report or document. The civil penalty is in addition to
the amount of the tax evaded or not collected.
(b) Any person liable for a tax levied under this article who
fails to file, even if no tax is due, within thirty days after it
is due any return required by this article is subject to a civil
penalty of fifty dollars for each month, or part thereof, the
return is not filed. The civil penalty is in addition to the
amount of tax not correctly returned.
(c) Any person required to file a return under this article
who fails to file within thirty days after it is due is subject to
a civil penalty of fifty dollars for each month, or part thereof,
the return is not filed.
(d) Civil penalties prescribed under this section shall be
assessed, collected and paid in the same manner as the motor fuel
tax.
§11-14C-41. Willful commission of prohibited acts; criminal
penalties.
(a) Any person who willfully commits any of the following
offenses is guilty of a misdemeanor, and upon conviction thereof,
shall be fined not less than five thousand dollars nor more than
twenty-five thousand dollars, or imprisoned in the county or
regional jail not more than one year, or both fined and imprisoned:
(1) Fails to obtain a license required by this article prior
to performing an act for which the license is required;
(2) Fails to pay to this state no more than thirty days after
the date the tax is due the tax levied by this article;
(3) Makes a false statement in an application, return, ticket,
invoice, statement, or any other document required under this
article;
(4) Fails to file no more than thirty days after it is due any
return required by this article;
(5) Fails to maintain any record required by this article;
(6) Makes a false statement in an application for a refund;
(7) Refuses to allow the commissioner to examine the person's
books and records concerning motor fuel;
(8) Fails to make a required disclosure of the correct amount
of fuel sold or used in this state;
(9) Fails to file a replacement or additional cash bond or
continuous surety bond as required under this article;
(10) Fails to show or give a shipping document as required
under this article;
(11) Refuses to allow a licensed distributor, licensed
exporter, or licensed importer to defer payment of tax to the
licensed supplier or permissive supplier, as required by section
twenty of this article;
(12) Uses, delivers, or sells any aviation fuel for use or
intended for use in highway vehicles or watercraft;
(13) Interferes with or refuses to permit seizures authorized
under section forty-two of this article;
(14) Delivers motor fuel from a transport vehicle to the fuel
supply tank of a highway vehicle;
(15) Dispenses into the supply tank of a highway vehicle,
watercraft or aircraft any motor fuel on which tax levied by
section five of this article has not been paid;
(16) Allows to be dispensed into the supply tank of a highway
vehicle, watercraft or aircraft any motor fuel on which tax levied
by section five of this article has not been paid;
(17) Purchases motor fuel from an unlicensed distributor,
unlicensed importer or unlicensed supplier; or
(18) Uses twenty-five or less gallons of dyed diesel fuel for
a use that the user knows or has reason to know is a taxable use of
the motor fuel, or sells twenty-five or less gallons of dyed diesel
fuel to a person who the seller knows or has reason to know will
use the motor fuel for a taxable purpose.
(b) Any person who willfully commits any of the following
offenses with the intent either to evade or circumvent the tax
levied by section five of this article or to assist any other
person in efforts to evade or circumvent the tax levied by section
five of this article is guilty of a felony, and upon conviction
thereof, shall be fined not less than twenty-five thousand dollars
nor more than fifty thousand dollars, or imprisoned in a state
correctional facility not less than one nor more than five years,
or both fined and imprisoned:
(1) Alters, manipulates, replaces, or in any other manner
tampers or interferes with, or causes to be altered, manipulated,
replaced, tampered or interfered with, a totalizer attached to
motor fuel pumps to measure the dispensing of motor fuel;
(2) Fails to pay motor fuels taxes and diverts the tax
proceeds for other purposes;
(3) As a licensee or the agent or representative of a
licensee, converts or attempts to convert motor fuel tax proceeds
for the use of the licensee or the licensee's agent or
representative, with the intent to defraud this state;
(4) Collects motor fuel taxes when not authorized or licensed
by the commissioner to do so;
(5) Imports motor fuel into this state in contravention of
this article;
(6) Conspires with any other person or persons to engage in an
act, plan, or scheme to defraud this state of motor fuels tax
proceeds;
(7) Uses in excess of twenty-five gallons of any dyed diesel
fuel for a use that the user knows or has reason to know is a
taxable use of the motor fuel, or sells in excess of twenty-five
gallons of any dyed diesel fuel to a person who the seller knows or
has reason to know will use the motor fuel for a taxable purpose;
(8) Alters or attempts to alter the strength or composition of
any dye or marker in any dyed diesel fuel intended to be used for
a taxable purpose; or
(9) Fails to remit to the commissioner any tax levied pursuant
to this article, if the person has added, or represented that he or
she has added, the tax to the sales price for the motor fuel and
has collected the amount of the tax.
(c) Each offense is subject to a separate criminal penalty.
§11-14C-42. Unlawful importing, transportation, delivery, storage
or sale of motor fuel; sale to enforce assessment.
(a) Upon the discovery of any motor fuel illegally imported
into, or illegally transported, delivered, stored or sold in, this
state, the commissioner shall order the tank or other storage
receptacle in which the motor fuel is located to be seized and
locked or sealed until the tax, interest, penalties and additions
levied under this article are assessed and paid.
(b) If the assessment for the tax is not paid within thirty
days, the commissioner is hereby authorized, in addition to the
other remedies authorized in this article, to sell the motor fuel
and use the proceeds of the sale to satisfy the assessment due,
with any funds that exceed the assessment and costs of the sale
being returned to the owner of the motor fuel: Provided, That the
sale of seized property be conducted in accordance with the
requirements established in article ten of this chapter.
(c) All motor fuel and any property, tangible or intangible,
which is found upon the person or in any vehicle which the person
is using, including the vehicle itself, to aid the person in the
transportation or sale of illegally transported, delivered, stored,
sold, imported or acquired motor fuel, and any property found in
the immediate vicinity of any place where the illegally
transported, delivered, stored, sold, imported or acquired motor
fuel is located, including motor vehicles, tanks, and other storage
devices, used to aid in the illegal transportation or sale of motor fuel, is considered contraband and shall be forfeited to this
state.
§11-14C-43. Record-keeping requirements.
(a) Each person required to be licensed under section ten of
this article and each bulk user and retailer shall keep and
maintain all records pertaining to motor fuel received, produced,
manufactured, refined, compounded, used, sold or delivered,
together with delivery tickets, invoices, bills of lading, and
other pertinent records and papers as required by the commissioner
for the reasonable administration of this article.
(b) The records required by this section to be retained shall
be kept and maintained for a period to include the commissioner's
current calendar year and the previous three calendar years.
§11-14C-44. Inspection of records.
(a) The commissioner may, during the usual business hours of
the day, examine records, books, papers, storage tanks and any
other equipment of any person required to maintain records for the
purpose of ascertaining the quantity of motor fuel received,
produced, manufactured, refilled, compounded, used, sold, shipped,
or delivered, to verify the truth and accuracy of any statement,
report or return or to ascertain whether or not the tax levied by
this article has been paid.
(b) If a person required to maintain records is open for
business during hours which the commissioner may not consider usual
business hours, the commissioner may examine the person's books and
records during the person's normal business hours, which are those hours when the person is open for business at any of the person's
places of business. If the person does not maintain the books and
records on the premises, the commissioner may inspect the books and
records where they are maintained, irrespective of the working
hours at the location, as long as one of the person's places of
business maintains hours at the time of day during which the
commissioner asserts his or her inspection powers.
(c) While performing inspections authorized by section
forty-five of this article, the commissioner may also inspect the
books and records kept to determine any motor fuel tax liability
under this article.
§11-14C-45. Authority to inspect.
(a) The commissioner, upon presenting appropriate credentials
to the owner, operator, or agent in charge, is authorized to enter
any place and to conduct inspections in accordance with this
section. Inspections shall be performed in a reasonable manner and
at times that are reasonable under the circumstances, taking into
consideration the normal business hours of the place to be
inspected.
(b) Inspections may be conducted at any place where taxable
motor fuel or motor fuel dyes or markers are, or may be, produced,
altered, or stored, or at any site where evidence of production,
alteration, or storage is discovered.
(c) The commissioner may physically inspect, examine, and
otherwise search any tank, reservoir, or other container that can
or may be used for the production, storage, or transportation of motor fuel, motor fuel dyes or markers. Inspection may also be
made of any equipment used for, or in connection with, the
production, storage, or transportation of motor fuel, motor fuel
dyes or markers, including equipment used for the dyeing or marking
of motor fuel.
(d) The commissioner may stop, inspect and issue citations to
operators of motor vehicles for violations of this article at sites
where motor fuel is, or may be, produced, stored, or loaded into or
consumed by motor vehicles. The commissioner may enter into
agreements with other agencies of this state to provide assistance
in stopping and inspecting motor vehicles for violations of this
article.
(e) Inspections may occur at any terminal, motor fuel storage
facility that is not a terminal, retail motor fuel facility,
highway rest stop, and designated inspection site.
(f) The commissioner may, on the premises or at a designated
inspection site, take and remove samples of motor fuel in
reasonable quantities as necessary to determine the composition of
the motor fuel.
(g) Nothing contained in this section is construed to prohibit
the issuance of a citation for the violation of the provisions of
this article on the open highway or other than the spot check areas
where the violation of this article is discovered when the motor
vehicle is lawfully stopped for any other criminal violation of the
laws of this state.
§11-14C-46. Marking requirements for dyed diesel fuel storage
facilities.
(a) A person who is a retailer of dyed diesel fuel or who
stores dyed diesel fuel for use by that person or another person
shall mark each visible storage tank and each dispensing device
with the phrase "Dyed Diesel Fuel, Nontaxable Use Only, Penalty for
Taxable Use," or a similar phrase that clearly indicates that the
diesel fuel is not to be used to operate a highway vehicle.
(b) The marking requirements of this section shall not apply
to a storage facility that contains fuel used only in a heating,
crop-drying, or manufacturing process, and is installed in a manner
that makes use of the fuel for any other purpose improbable.
§11-14C-47. Disposition of tax collected.
(a) The commissioner, for the administration, auditing and
enforcement of this article, is authorized to retain and expend one
half of one percent of the tax collected pursuant to the provisions
of this article: Provided, That in any fiscal year in which the tax
collected pursuant to the provisions of this article exceed three
hundred million dollars, the commissioner is authorized to retain
and expend for the administration, auditing and enforcement of this
article an additional one per cent of the tax in excess of the
three hundred million dollars that is collected.
(b) All remaining tax collected under the provisions of this
article after deducting the amount of any refunds lawfully paid
shall be paid into the state road fund and used only for the
purpose of construction, reconstruction, maintenance and repair of highways, matching of federal moneys available for highway purposes
and payment of the interest and sinking fund obligations on state
bonds issued for highway purposes.
ARTICLE 15. CONSUMERS SALES TAX.
§11-15-18. Tax on gasoline and special fuel; section repealed
January 1, 2004.
(a) General. -- All sales of gasoline or special fuel by
distributors or importers, except when to another distributor for
resale in this state, when delivery is made in this state, is
subject to the tax imposed by this article, notwithstanding any
provision of this article to the contrary. Sales of gasoline or
special fuel by a person who paid the tax imposed by this article
on his or her purchases of fuel, shall not thereafter be again
taxed under the provisions of this article. This section is
construed so that all gallons of gasoline or special fuel sold and
delivered, or delivered, in this state are taxed one time.
(b) Measure of tax. -- The measure of tax on sales of
gasoline or special fuel by distributors or importers is the
average wholesale price as defined and determined in subsection
(c), section thirteen, article fifteen-a 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
gasoline and special fuel is imposed on the average wholesale price
of gasoline and special fuel; in no case, for the purposes of
taxation under this article, shall the average wholesale price be considered to be less than ninety-seven cents per gallon of
gasoline or special fuel for all gallons of gasoline and special
fuel sold during the reporting period, notwithstanding any
provision of this article to the contrary.
(c) Definitions. -- For purposes of this section:
(1) "Aircraft" includes any airplane or helicopter that lands
in this state on a regular or routine basis, and transports
passengers or freight.
(2) "Aircraft fuel" means gasoline and special fuel suitable
for use in any aircraft engine.
(3) "Distributor" means and includes every person:
(A) Who produces, manufactures, processes or otherwise alters
gasoline or special fuel in this state for use or for sale;
(B) Who engages in this state in the sale of gasoline or
special fuel for the purpose of resale or for distribution; or
(C) Who receives gasoline or special fuel into the cargo tank
of a tank wagon in this state for use or sale by the person.
(4) "Gasoline" means and includes 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 defined in this section, including any product
obtained by blending together any one or more products, with or
without other products, if the resultant product is capable of the
same use.
(5) "Importer" means and includes every person, resident or
nonresident, other than a distributor, who receives gasoline or special fuel outside this state for use, sale or consumption within
this state, but shall not include the fuel in the supply tank of a
motor vehicle that is not a motor carrier.
(6) "Motor carrier" means and includes: (A) Any passenger
vehicle which has seats for more than nine passengers in addition
to the driver, any road tractor, tractor truck or any truck having
more than two axles, which is operated or caused to be operated, by
any person on any highway in this state using gasoline or special
fuel; and (B) any aircraft, barge or other watercraft or locomotive
transporting passengers or freight in or through this state.
(7) "Motor vehicle" means and includes automobiles, motor
carriers, motor trucks, motorcycles and all other vehicles or
equipment, engines or machines which are operated or propelled by
combustion of gasoline or special fuel.
(8) "Retail dealer of gasoline or special fuel" means and
includes any person not a distributor, who sells gasoline or
special fuel from a fixed location in this state to users.
(9) "Special fuel" means and includes 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 casinghead gasoline and includes
gasoline and special fuel for heating any private residential
dwelling, building or other premises; 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.
(10) "Supply tank" means any receptacle on a motor vehicle
from which gasoline or special fuel is supplied for the propulsion
of the vehicle or equipment located thereon, exclusive of a cargo
tank. A supply tank includes a separate compartment of a cargo
tank used as a supply tank, and any auxiliary tank or receptacle of
any kind or cargo tank, from which gasoline or special fuel is
supplied for the propulsion of the vehicle, whether or not the tank
or receptacle is directly connected to the fuel supply line of the
vehicle.
(11) "Tank wagon" means and includes any motor vehicle or
vessel with a cargo tank or cargo tanks ordinarily used for making
deliveries of gasoline or special fuel, or both, for sale or use.
(12) "Taxpayer" means any person liable for the tax imposed by
this article.
(13) "User" means any person who purchases gasoline or special
fuel for use or consumption.
(d) Tax due. -- The tax on sales of gasoline and special fuel
shall be paid by each taxpayer on or before the twenty-fifth day of
each 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.
(e) Monthly return. -- On or before the twenty-fifth day of
each month, the taxpayer shall make and file a return for the
preceding month showing the information as the tax commissioner requires, notwithstanding any provision of this article to the
contrary.
(f) Compliance. -- To facilitate ease of administration and
compliance by taxpayers, the tax commissioner may require
distributors, importers and other persons liable for the tax
imposed by this article on sales of gasoline or special fuel, to
file a combined return and make a combined payment of the tax due
under this article on sales of gasoline and special fuel, and the
tax due under article fourteen of this chapter, on gasoline and
special 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 article fourteen of
this chapter is hereby changed from the last day of each month to
the twenty-fifth day of each month, notwithstanding any provision
in article fourteen 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 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 aircraft fuel 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.
(h) Construction. -- This section is not construed as taxing
any sale of gasoline or special fuel which this state is prohibited
from taxing under the constitution of this state or the
constitution or laws of the United States.
(i) Effective date. --
This section shall have no force or effect after the thirty-
first day of December, two thousand three: Provided, That tax
liabilities arising for periods ending before the first day of
January, two thousand four, shall be determined, paid,
administered, assessed and collected as if this section had not
been repealed, and the rights and duties of the taxpayer and the
state of West Virginia are fully and completely preserved.
§11-15-18b. Tax on motor fuel effective January 1, 2004.
(a) General. -- Effective the first day of January, two
thousand four, all sales of motor fuel subject to the flat rate of
the tax imposed by section five, article fourteen-c of this chapter
is subject to the tax imposed by this article which shall comprise
the variable component of the tax imposed by section five, article
fourteen-c of this chapter, and be collected and remitted at the
time the tax imposed by section five, article fourteen-c of this
chapter 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 ninety-seven cents 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
"gasoline" and "special fuel" are defined as provided in section
two, article fourteen-c of this chapter. Other terms used in this
section have the same meaning as when used in a similar context in
article fourteen-c of the chapter.
(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 article fourteen-c of this chapter is the
last day of each month, notwithstanding any provision in article
fourteen-c of this chapter to the contrary.
(f) Dedication of tax to highways. -- All tax collected under
the provisions of this section after deducting the amount of any
refunds lawfully paid, shall be deposited in the "road fund" in the
state treasurer's office, and used only for the purpose of
construction, reconstruction, maintenance and repair of highways,
and payment of principal and interest on state bonds issued for
highway purposes: Provided, That notwithstanding any provision to
the contrary, any tax collected on the sale of aviation fuel 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 the first day of January, two thousand four.
ARTICLE 15A. USE TAX.
§11-15A-13. Tax on gasoline and special fuel; section repealed
January 1, 2004.
(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 the price to, in no case, be
determined 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 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 is not 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, is taxed in the same manner as that in the
supply tank of a motor carrier.
(b) Definitions. -- Terms used in this section 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 other means
as the tax commissioner considers 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" 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 gasoline or diesel fuel, as determined by the tax
commissioner from information furnished by distributors of gasoline
or special fuel in this state, or any 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 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 whole price of gasoline and special 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.
(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 is 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 this section, 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 is allowed in the same manner and under the same conditions as a refund or credit is allowed for the
tax imposed by article fourteen-a of this chapter.
(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 the information the tax commissioner
requires.
(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 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 the fuel. In order to encourage use
of a combined return and the making of a single payment each
quarter for both taxes, the due date of the return and tax due
under article fourteen-a of this chapter is hereby changed from the
last day of January, April, July and October of each calendar year,
to the twenty-fifth day of each of those 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 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 is not 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. --
This section shall have no force or effect after the thirty-
first day of December, two thousand three: Provided, That tax
liabilities arising for periods ending before the first day of
January, two thousand four, shall be determined, paid,
administered, assessed and collected as if this section had not
been repealed, and the rights and duties of the taxpayer and the
state of West Virginia are fully and completely preserved.
(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 the
sales tax against the tax imposed by this article with respect to
the gallonage of tax paid fuel consumed in this state; and inasmuch
as section ten-a of this article reestablishes the allowance of a
credit and makes the 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.
§11-15A-13a. Tax on motor fuel effective January 1, 2004.
(a) Imposition of tax. -
(1) On deliveries in this state. -- Effective the first day
of January, two thousand four, all motor fuel furnished or
delivered within this state which is subject to the flat rate of
the tax imposed by section five, article fourteen-c of this chapter
is subject to the tax imposed by this article which shall comprise
the variable component of the tax imposed by the said section five,
article fourteen-c, and shall be collected and remitted at the time
the tax imposed by the said section five, article fourteen-c is remitted: Provided, That the amount of tax due under this article
shall in no event be less than five percent of the average
wholesale price of motor fuel as determined in accordance with said
section five, article fourteen-c.
(2) On purchases out-of-state subject to motor fuel tax. --
Effective the first day of January, two thousand four, an excise
tax is hereby imposed on the importation into this state of motor
fuel purchased outside this state when the purchase is subject to
the flat rate of the tax imposed by section five, article
fourteen-c of this chapter: Provided, That the rate of the tax due
under this article shall in no event be less than five percent of
the average wholesale price of the motor fuel, as determined in
accordance with said section five, article fourteen-c: Provided,
however, That the motor fuel subject to the tax imposed by this
article shall comprise the variable component of the tax imposed by
the said section five, article fourteen-c, and shall be collected
and remitted by the seller at the time the seller remits the tax
imposed by the said section five, article fourteen-c.
(3) On other purchases out-of-state. -- An excise tax is
hereby imposed on the use or consumption in this state of motor
fuel purchased outside this state at the rate of five percent of
the average wholesale price of the motor fuel, as determined in
accordance with section five, article fourteen-c of this chapter:
Provided, That motor fuel contained in the fuel supply tank of a
motor vehicle that is not a motor carrier shall not be taxable,
except that motor fuel imported in the fuel supply tank or auxiliary tank of construction equipment, mining equipment, track
maintenance equipment or other similar equipment, shall be taxed in
the same manner as that in the fuel supply tank of a motor carrier.
(b) Definitions. -- For purposes of this article, the terms
"gasoline" and "special fuel" are defined as provided in section
two, article fourteen-c of this chapter. Other terms used in this
section have the same meaning as when used in a similar context in
article fourteen-c of this chapter.
(c) Computation of tax due from motor carriers. -- Every
person who operates or causes to be operated a motor carrier in
this state shall pay the tax imposed by this section on the average
wholesale price of all gallons of motor fuel used in the operation
of any motor carrier within this state, under the following rules:
(1) The total amount of motor fuel used in the operation of
the motor carrier within this state is that proportion of the total
amount of motor fuel used in any motor carrier's operations within
and without this state, that the total number of miles traveled
within this state bears to the total number of miles traveled
within and without this state.
(2) A motor carrier shall first determine the gross amount of
tax due under this section on the average wholesale value,
determined under section five, article fourteen-c of this chapter,
of all motor fuel used in the operation of the motor carrier within
this state during the preceding quarter, as if all gasoline and
special fuel had been purchased outside this state.
(3) Next, the taxpayer shall determine the total tax paid
under article fifteen of this chapter on all motor fuel purchased
in this state for use in the operation of the motor carrier.
(4) The difference between (2) and (3) is the amount of tax
due under this article when (2) is greater than (3), or the amount
to be refunded or credited to the motor carrier when (3) is greater
than (2), which refund or credit is allowed in the same manner and
under the same conditions as a refund or credit is allowed for the
tax imposed by article fourteen-a of this chapter.
(d) Return and payment of tax. -- Tax due under this article
on the uses or consumption in this state of motor fuel shall be
paid by each taxpayer on or before 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: Provided, That the tax
due under this article that comprises the variable component of the
tax due under article fourteen-c of this chapter is due on the last
day of the month. Every taxpayer shall make and file with his or
her remittance, a return showing the information the tax
commissioner requires.
(e) Compliance. -- To facilitate ease of administration and
compliance by taxpayers, the tax commissioner shall require motor
carriers liable for the taxes imposed by this article on the use of
motor fuel in the operation of motor carriers within this state,
and the tax imposed by article fourteen-a of this chapter on such gallons of motor fuel, to file a combined return and make a
combined payment of the tax due under this article and article
fourteen-a of this chapter on the fuel. In order to encourage use
of a combined return and the making of a single payment each
quarter for both taxes, the due date of the return and tax due
under article fourteen-a of this chapter is the last day of
January, April, July and October of each calendar year.
(f) Dedication of tax to highways. -- All tax collected under
the provisions of this section after deducting the amount of any
refunds lawfully paid shall be deposited in the "road fund" in the
state treasurer's office, and used only for the purpose of
construction, reconstruction, maintenance and repair of highways,
and payment of principal and interest on state bonds issued for
highway purposes.
(g) Construction. -- The tax imposed by this article on the
use of motor fuel in this state is not construed as taxing any
motor fuel which the state is prohibited from taxing under the
constitution of this state or the constitution or laws of the
United States.
(h) Effective date. -- The provisions of this section take
effect the first day of January, two thousand four.