H. B. 2971
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced February 12, 2003; referred to the
Committee on Finance.]
A BILL 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tax is repealed; defining certain motor carrier road tax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 and as to such 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;
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; notice of
cancellation and reissuance of license; 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, 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 for authority to inspect; specifying
marking requirements for dyed diesel fuel storage facilities; providing for disposition of tax collected; 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; and directing house clerk to remove repealed code
sections from his or her books after a specified date.
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 eleven 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 shall 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 franchise registration tax imposed by
article twelve of this chapter; (3) the annual tax on incomes of
certain carriers imposed by article twelve-a 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; (5) (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; (6) (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; (7) (12) the consumers sales and
service tax imposed by article fifteen of this chapter; (8) (13)
the use tax imposed by article fifteen-a of this chapter; (9) (14)
the cigarette tobacco products excise tax imposed by article
seventeen of this chapter; (10) (15) the soft drinks tax imposed by
article nineteen of this chapter; (11) (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; and
(12) (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 shall 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
such application is expressly provided for by the Legislature.
(c) The provisions of this article shall 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 shall apply 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 such tax and were set forth in
extenso in such article.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-3. Application of this article.
(a) The provisions of this article shall apply to the
inheritance and transfer taxes, the estate tax, and interstate
compromise and arbitration of inheritance and death taxes, the
business franchise registration certificate 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
agreement, the consumers sales and service tax, the use tax, the
cigarette 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 the corporate license tax or any other tax not listed hereinabove,
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 shall be the same methods utilized for timely
filing and payment with such sheriff.
(b) The provisions of this article shall 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 shall also apply to any
other article of this chapter when such application is expressly
provided for by the Legislature.
§11-10-14. Overpayments; credits; refunds and limitations.
(a) Refunds of 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, or 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.
(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 shall 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 tax commissioner's 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
shall be 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 so 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 shall
constitute 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 shall constitute a
claim for refund or credit.
(i) Remedy exclusive. -- The procedure provided by this section shall constitute the sole method of obtaining any refund,
or 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 shall be 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 shall 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 may not exceed two
years. The period so 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 shall also be 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 may 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, or motor carrier road tax, or motor fuel excise tax sought
under the provisions of article fourteen, or fourteen-a or
fourteen-c of this chapter.
(m) Effective date. -- This section, as amended in the year
one thousand nine hundred ninety-six, shall apply to claims for
refund or credit filed on or after the first day of July, one
thousand nine hundred ninety-six.
ARTICLE 14. GASOLINE AND SPECIAL FUEL EXCISE TAX.
§11-14-31. Repeal of article.
Each and every provision of this article fourteen 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, shall be 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 shall be 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 such 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 effective the first day of January, two
thousand four, motor fuel as defined in article fourteen-c of this
chapter.
(8) (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 such motor carrier.
(9) (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.
(10) (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.
(11) (12) "Purchase" means and includes any acquisition of
ownership of property or of a security interest for a
consideration.
(12) (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.
(13) (14) "Road tractor" means every motor carrier designed
and used for drawing other vehicles and not so constructed as to
carry any load thereon either independently or any part of the
weight of a vehicle or load so drawn.
(14) (15) "Sale" means any transfer, exchange, gift, barter or
other disposition of any property or security interest for a
consideration.
(15) (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" shall include 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" shall have the same
meaning as in article fourteen-c of this chapter.
(16) (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.
(17) (18) "Taxpayer" means any person liable for any tax,
interest, additions to tax or penalty under the provisions of this
article.
(18) (19) "Tractor truck" means every motor carrier designed
and used primarily for drawing other vehicles and not so
constructed as to carry a load other than a part of the weight of
the vehicle and load so drawn.
(19) (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 shall be in addition to all
other taxes of whatever character imposed upon such 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 such reports of its operations during the quarter ending the last day of the preceding
month as the commissioner may require and such other reports from
time to time as the commissioner may deem necessary. For good
cause shown, the commissioner may extend the time for filing said
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 such 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 such 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 such 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 such 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
such 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 shall be
calculated on the basis of such joint reports as though such
taxpayers were a single taxpayer; and the taxpayers making such
reports shall be jointly and severally liable for the taxes shown
thereon to be due. Such 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 shall not be 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 such 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 shall have 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 such court shall thereupon issue a
subpoena duces tecum to such party to appear before the
commissioner, at a place designated within the jurisdiction of such
court, on a day fixed.
§11-14A-9. Credits against tax.
Every taxpayer subject to the road tax herein imposed shall be
entitled to a credit on such 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 said
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 such credit shall not be 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 shall be 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
shall be 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 such tax in
such form as may be required by the commissioner shall be furnished
by the taxpayer claiming the credit herein allowed. When the
amount of the credit herein provided for exceeds the amount of the
tax for which the taxpayer is liable in the same quarter, such
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 said taxpayer is entitled to said refund and that
said 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 herein
authorized 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 such claim for such 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 however further, That such 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 said 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 shall not be assignable and any
attempt at assignment thereof shall be void and of no effect. Such
claim for refund or credit shall also be subject to the provisions
of section fourteen, article ten of this chapter.
A taxpayer may shall furnish a continuous surety bond or a
cash bond in an amount fixed by the commissioner, but such 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, 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. Upon completion of the filing of such surety bond an annual notice of
renewal, only, shall be required thereafter.
(b) The surety must be authorized to engage in business within
this state. The cash bond and the continuous surety bond shall be
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. Such The cash bond and the continuous
surety bond shall be approved by the commissioner as to sufficiency
and by the attorney general as to 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 this article fourteen-c of this chapter.
So long as the bond remains in force, the commissioner may order
refunds to the taxpayer in the amounts appearing to be due on
claims duly filed by the taxpayer under the provisions of this
article without first auditing the records of the carrier.
Any surety on a continuous surety bond furnished hereunder
shall be relieved, released and discharged from all liability
accruing on such 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. This 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 shall seek discharge as herein provided, it shall be the
duty of the principal of such bond to supply the commissioner with
another continuous surety bond or a cash bond or pledge of property
equal in value to the original bond, such pledge to be in the form
of a tax lien on the property pledged and said lien shall be duly
perfected in the office of the clerk of the county commission of
the county wherein such property is situated and shall be submitted
to the commissioner along with a certified appraisal statement as
to the value of the property pledged prior to the expiration of the
original bond. Failure to provide such other bond or pledge may
shall result 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 canceling cancel any
registration card and identification marker previously issued to
said person.
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.
(c) (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.
(d) (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.
(e) (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.
(f) (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 shall 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 would normally not be included in subdivisions (A), (B) or (C)
of this definition.
(2) "Aircraft" shall include 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 such 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 of the
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 such 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 shall be 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 shall be 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 such motor fuel: And provided further,
That the average wholesale price shall be no less than ninety-seven
cents per invoiced gallon and shall be 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 such other means as the tax commissioner
deems 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" shall mean the single,
statewide average per gallon wholesale price, rounded to the third
decimal (thousandth of a cent), exclusive of state and federal
excise taxes on each gallon of motor fuel, as determined by the tax
commissioner from information furnished by suppliers, importers and
distributors of motor fuel in this state, or such other information
regarding wholesale selling prices as the tax commissioner may
gather, or a combination of such information: Provided, That in no
event shall the average wholesale price be determined to be less
than ninety-seven cents per gallon of 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 shall be 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 shall be 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
shall be equal to the sum of the tax rate specified in the
foregoing subsection (a) 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 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 deemed to be
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 deemed
to be 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 shall be deemed 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 shall 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
shall be imposed at the time motor fuel is imported into this
state, other than by a bulk transfer, shall be measured by invoiced
gallons received outside this state at a refinery, terminal or bulk
plant for delivery to a destination in this state and shall be
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 shall be
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 shall be
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 shall be 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 shall be
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 shall be 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
shall be liable for the tax levied by this section, together with
a penalty equal to the amount of tax payable. 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 shall be 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 shall be 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 shall be jointly and
severally liable for the tax.
(c) The tax liability levied by this section shall be 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, shall be
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) 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 shall be purchased for delivery in bulk
quantities of five hundred gallons or more;
(7) 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;
(8) Sales of aircraft fuel;
(9) All sales of dyed special fuel; and
(10) Sales of propane.
(b) Per se exemptions for variable component. -- Sales of
motor fuel to the following shall be 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:
(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; and
(7) 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) 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;
(2) All gallons of motor fuel used and consumed in stationary
off-highway turbine engines;
(3) All gallons of special fuel used for heating any public or
private dwelling, building or other premises;
(4) All gallons of special fuel used for boilers;
(5) All gallons of motor fuel used as a dry cleaning solvent
or commercial or industrial solvent;
(6) All gallons of motor fuel used as lubricants, ingredients
or components of any manufactured product or compound;
(7) All gallons of motor fuel sold for use or used as a motor
fuel for commercial watercraft;
(8) All gallons of special fuel sold for use or consumed in
railroad diesel locomotives;
(9) 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;
(10) 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 such equipment
or separate tank for such a motor, the person claiming the refund
may present to the tax commissioner a statement of his or her claim
and shall be 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;
(11) 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 shall be equal to six cents per gallon:
Provided, however, That said 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
(12) All gallons of motor fuel that are not otherwise exempt
under subsection (a) of this section and that are purchased and
used by:
(A) Any county government or unit or agency thereof;
(B) Any municipal government or any agency thereof;
(C) Any county boards of education;
(D) Any urban mass transportation authority created pursuant
to the provisions of article twenty-seven, chapter eight of this
code;
(E) 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; or
(F) Any bona fide volunteer fire department, nonprofit
ambulance service or emergency rescue service that has been
certified as such 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;
(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 as such 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.
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 such 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 such 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 such 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 shall be as follows:
(1) For a supplier license, the amount shall be two million
dollars;
(2) For a permissive supplier license, the amount shall be two
million dollars;
(3) For a terminal operator license, the amount shall be 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 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 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) For a license for two or more licensed activities listed
under subdivisions (1), (2) and (3) of this subsection, the amount
of the bond shall not be less than two million dollars and nor more
than the multiple of two million dollars times the number of
licenses required: Provided, That when application is made for a
license for two or more of the licensed activities listed under
subdivisions (1), (2) and (3) of this subsection, the commissioner
may authorize the amount of the bond to be between two million
dollars and eight million dollars. For a license for two or more
of the licenses listed in subdivisions (8), (9), (10) and (11) of
the subsection, the amount that covers the combined liabilities for
the activities under the license shall not exceed three hundred
thousand dollars: Provided, 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.
(13) 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 shall be
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 shall be 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 shall first occur. 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 shall be 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 a license 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 shall not be transferable and shall
remain 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 in writing notify
the commissioner within fifteen days of such 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 shall be 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 shall be
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
shall become 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 such 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, 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 shall be 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 such 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 shall be 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 shall not be
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 shall be 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 shall not be
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 and net 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 and net 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 and net 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 and net 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 and net 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 for two or more consecutive months to licensed supplier or permissive supplier, the licensed supplier
or permissive supplier shall not be eligible to take the deduction
for any tax payments not remitted by the delinquent licensed
distributor or licensed importer. The notice shall be transmitted
to the state in the form required by the commissioner. A supplier
or permissive supplier shall not be 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 such 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.
§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 shall be 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 it's 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 and net 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 and net 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 and net 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 the foregoing subdivision (2) or subdivision (3), 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 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 and net 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 and net 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 and net 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 such 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 such gallons so lost.
(c) Any dealer as defined in section two, article eleven-c,
chapter forty-seven of the code, who purchases or receives motor
fuel in this state upon which the tax levied by section five of
this article has been paid, shall be entitled to an annual refund
of the flat rate of the tax levied by said section five for gallons
lost through evaporation. Such refund shall be 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 shall be 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 such rate change, which motor
fuel shall have 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 such 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" shall not be acceptable: Provided, however, That
certified copies of sales slips or invoices shall be 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 such form and with such
supporting records as required by the commissioner and shall be
made under the penalty of perjury.
(c) The right to receive any refund under the provisions of
this section shall not be assignable and any assignment thereof
shall be 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 such 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 such 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 shall not be
construed to be or constitute a moral obligation of the state of
West Virginia for payment. Every petition for refund shall also be
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 be machine-printed and 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 and net gallons loaded and a statement indicating the name of
the supplier that is responsible for the tax due on the motor fuel.
(c) In the event of an extraordinary unforeseen circumstance,
including an act of God, that temporarily interferes with the ability to issue an automated machine-generated shipping document,
a manually prepared shipping document that contains all of the
information required by subsection (b) of this section shall be
substituted for the machine-generated shipping document.
(d) 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 shall be liable for any tax due as a result of
the purchaser's diversion of motor fuel from the represented
destination state.
(e) 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) Give a copy of the shipping document to the person to whom
the motor fuel is delivered.
(f) 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 such 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
shall be jointly and severally liable for any tax due on the motor
fuel.
(g) 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, shall be
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
shall be five thousand dollars.
(4) The amount of the civil penalty for each subsequent
violation shall be ten thousand dollars.
§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 such delivery of motor fuel into West Virginia.
(b) An importer who does not obtain an import confirmation
number when required by this section shall be subject to the
following civil penalty.
(1) For the first violation, the amount shall be five thousand
dollars.
(2) For each subsequent violation the amount shall be ten
thousand dollars.
(c) The civil penalty shall be payable by the person in whose
name the transport vehicle is registered.
§11-14C-36. Improper sale or use of untaxed motor fuel; civil
penalty.
(a) Any person who commits any of the following violations
shall be 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 as such 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 as such 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, shall be 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 fine shall be
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 shall be 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 allow the taking of a
fuel sample authorized by section forty-seven of this article shall
be 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 shall be 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 such 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, shall be 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 shall be subject to
the following civil penalty.
(1) For the first violation the amount shall be five thousand
dollars.
(2) For each subsequent violation the amount shall be 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 shall
be subject to the following civil penalty.
(1) For the first violation the amount shall be five thousand
dollars.
(2) For each subsequent violation the amount shall be 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 shall be subject to a civil penalty equal to
the total amount of tax evaded, or not collected, by the filing of
such return, report or document. The civil penalty shall be 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 shall be subject to a
civil penalty of fifty dollars for each month, or part thereof, the
return is not filed. The civil penalty shall be 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 shall be
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 shall be 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) Failure to obtain a license required by this article prior
to performing an act for which the license is required;
(2) Failure 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) Failure to file no more than thirty days after it is due
any return required by this article;
(5) Failure 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 shall be 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) Does not pay motor fuels taxes and diverts such 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 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
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 shall be 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 such tax is not paid within thirty
days, the commissioner is hereby authorized, in addition to the
other remedies authorized in this article, to sell such motor fuel
and use the proceeds of such 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 shall 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 may be found upon the person or in any vehicle which such
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 such illegally
transported, delivered, stored, sold, imported or acquired motor
fuel may be located, including motor vehicles, tanks, and other
storage devices, used to aid in the illegal transportation or sale
of such motor fuel, shall be deemed 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 such
other pertinent records and papers as may be 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 might not be
considered usual business hours, the commissioner may examine the
person's books and records during the person's normal business
hours, which shall be those hours when the person is open for
business at any of the person's places of business. If the person
does not maintain such books and records on the premises, the
commissioner may inspect such books and records where they are
maintained, irrespective of the working hours at such location, as
long as one of the person's places of business maintains hours at the time of day during which the commissioner asserts such
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 may be 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 such
reasonable quantities as are necessary to determine the composition
of the motor fuel.
(g) Nothing contained in this section may be 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 so
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 shall be 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, shall be
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 shall be 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 shall be 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 herein is imposed on the average wholesale price of
such gasoline and special fuel; in no case, for the purposes of
taxation under this article, shall such average wholesale price be
deemed 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" shall include any airplane or helicopter that
lands in this state on a regular or routine basis, and transports
passengers or freight.
(2) "Aircraft fuel" shall mean gasoline and special fuel
suitable for use in any aircraft engine.
(3) "Distributor" shall mean and include every person:
(A) Who produces, manufactures, processes or otherwise alters
gasoline or special fuel in this state for use or for sale; or
(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 such person.
(4) "Gasoline" shall mean and include 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, 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" shall mean and include 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" shall mean and include: (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" shall mean and include 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" shall mean and
include any person not a distributor, who sells gasoline or special
fuel from a fixed location in this state to users.
(9) "Special fuel" shall mean and include any gas or liquid,
other than gasoline, used or suitable for use as fuel in an
internal combustion engine. The term "special fuel" shall include
products commonly known as natural or casinghead gasoline and shall
include 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" shall mean 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 such tank or receptacle is directly connected to the fuel
supply line of the vehicle.
(11) "Tank wagon" shall mean and include 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" shall mean any person liable for the tax
imposed by this article.
(13) "User" shall mean 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 such information as the tax commissioner
may require, 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 shall be used only for the purpose of construction, reconstruction, maintenance and repair of highways,
and payment of principal and interest on state bonds issued for
highway purposes: 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 shall not be 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. -- The provisions of chapter one hundred
seventy-nine of the Acts of the Legislature, one thousand nine
hundred eighty-three, shall take effect on the first day of April,
one thousand nine hundred eighty-three. The amendments to this
section made by the Legislature in the Regular Session, one
thousand nine hundred eighty-nine, shall be effective on the first
day of July, one thousand nine hundred eighty-nine.
(1) 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 shall be fully and completely preserved.
(2) The clerk of the House is directed to remove this section
from his or her books after the first day of January, two thousand
four.
§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
shall be 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 shall 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 shall be 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 shall be 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 such motor fuel; in no case, for the purposes of taxation
under this article, shall such average wholesale price be deemed 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 eighteen-b shall 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 shall
be 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 shall be used only for the purpose of
construction, reconstruction, maintenance and repair of highways,
and payment of principal and interest on state bonds issued for
highway purposes: 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 shall not be 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 shall
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 such price to, in no case, be
deemed to be less than ninety-seven cents per gallon for all gallons of gasoline and special fuel taxable under section two of
this article.
(2) On purchases out-of-state. -- An excise tax is hereby
imposed on the use or consumption in this state of gasoline or
special fuel purchased outside this state at the rate of five
percent of the average wholesale price of such gasoline or special
fuel, as determined under subsection (c), notwithstanding any
provision of this article to the contrary: Provided, That gasoline
or special fuel contained in the supply tank of a motor vehicle
that is not a motor carrier shall not be taxable, except that
gasoline or special fuel imported in the supply tank or auxiliary
tank of construction equipment, mining equipment, track maintenance
equipment or other similar equipment, shall be taxed in the same
manner as that in the supply tank of a motor carrier.
(b) Definitions. -- Terms used in this section shall have the
same meaning as when used in a comparable context in section
eighteen, article fifteen of this chapter.
(c) Determination of average wholesale price. --
(1) To simplify determining the average wholesale price of all
gasoline and special fuel, the tax commissioner shall, effective
with the period beginning the first day of the month of the
effective date of this section and each first day of January, annually, thereafter, determine the average wholesale price of
gasoline and special fuel for each annual period, on the basis of
sales data gathered for the preceding period of the first day of
July through the thirty-first day of October. Notification of the
average wholesale price of gasoline and special fuel shall be given
by the tax commissioner at least thirty days in advance of each
first day of January, annual period, by filing notice of the
average wholesale price in the state register, and by such other
means as the tax commissioner deems reasonable: Provided, That
notice of the average wholesale price of gasoline and special fuel
for the first period shall be timely given if filed in the state
register on the effective date of this section.
(2) The "average wholesale price" shall mean the single,
statewide average per gallon wholesale price, rounded to the third
decimal (thousandth of a cent),exclusive of state and federal
excise taxes on each gallon of gasoline or diesel fuel, as
determined by the tax commissioner from information furnished by
distributors of gasoline or special fuel in this state, or such
other information regarding wholesale selling prices as the tax
commissioner may gather, or a combination of such information:
Provided, That in no event shall the average wholesale price be determined to be less than ninety-seven cents per gallon of
gasoline or special fuel.
(3) All actions of the tax commissioner in acquiring data
necessary to establish and determine the average wholesale price of
gasoline and special fuel, in providing notification of his or her
determination prior to the effective date of any change in rate,
and in establishing and determining the average wholesale price of
fuel, may be made by the tax commissioner without compliance with
the provisions of article three, chapter twenty-nine-a of this
code.
(4) In any administrative or court proceeding brought to
challenge the average whole price of gasoline and special fuel as
determined by the tax commissioner, his or her determination shall
be presumed to be correct and shall not beset aside unless it is
clearly erroneous.
(d) Computation of tax due from motor carriers. -- Every
person who operates or causes to be operated a motor carrier in
this state shall pay the tax imposed by this section on the average
wholesale price of all gallons of gasoline or special fuel used in
the operation of any motor carrier within this state, under the
following rules:
(1) The total amount of gasoline or special fuel used in the
operation of the motor carrier within this state shall be that
proportion of the total amount of gasoline and special fuel used in
any motor carrier's operations within and without this state, that
the total number of miles traveled within this state bears to the
total number of miles traveled within and without this state.
(2) A motor carrier shall first determine the gross amount of
tax due under this section on the average wholesale value,
determined under subsection(c), of all gasoline and special fuel
used in the operation of the motor carrier within this state during
the preceding quarter, as if all gasoline and special fuel had been
purchased outside this state.
(3) Next, the taxpayer shall determine the total tax paid
under article fifteen of this chapter on all gasoline and special
fuel purchased in this state for use in the operation of the motor
carrier.
(4) The difference between (2) and (3) is the amount of tax
due under this article when (2) is greater than (3), or the amount
to be refunded or credited to the motor carrier when (3) is greater
than (2), which refund or credit shall be allowed in the same
manner and under the same conditions as a refund or credit is
allowed for the tax imposed by article fourteen-a of this chapter.
(e) Return and payment of tax. -- Tax due under this article
on the uses or consumption in this state of gasoline or special
fuel shall be paid by each taxpayer on or before the twenty-fifth
day of January, April, July and October of each year,
notwithstanding any provision of this article to the contrary, by
check, bank draft, certified check or money order, payable to the
tax commissioner, for the amount of tax due for the preceding
quarter. Every taxpayer shall make and file with his or her
remittance, a return showing such information as the tax
commissioner may require.
(f) Compliance. -- To facilitate ease of administration and
compliance by taxpayers, the tax commissioner may require motor
carriers liable for the taxes imposed by this article on the use of
gasoline or special fuel in the operation of motor carriers within
this state, and the tax imposed by article fourteen-a of this
chapter on such gallons of fuel, to file a combined return and make
a combined payment of the tax due under this article and article
fourteen-a of this chapter on such fuel. In order to encourage use
of a combined return and the making of a single payment each
quarter for both taxes, the due date of the return and tax due
under article fourteen-a of this chapter is hereby changed from the
last day of January, April, July and October of each calendar year, to the twenty-fifth day of such months, notwithstanding any
provisions in article fourteen-a of this chapter to the contrary.
(g) Dedication of tax to highways. -- All tax collected under
the provisions of this section after deducting the amount of any
refunds lawfully paid shall be deposited in the "road fund" in the
state treasurer's office, and shall be used only for the purpose of
construction, reconstruction, maintenance and repair of highways,
and payment of principal and interest on state bonds issued for
highway purposes.
(h) Construction. -- The tax imposed by this article on the
use of gasoline or special fuel in this state shall not be
construed as taxing any gasoline or special fuel which the state is
prohibited from taxing under the constitution of this state or the
constitution or laws of the United States.
(i) Effective date. -- The provisions of this section and the
amendments to section three of this article took effect on the
first day of April, one thousand nine hundred eighty-three.
(1) 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 shall be fully and completely preserved.
(2) The clerk of the House is directed to remove this section
from his or her books after the first day of January, two thousand
four.
(j) Validation. -- Inasmuch as there is currently litigation
challenging the lawfulness of this section in the situation where
a motor carrier purchases gasoline or special fuel in another state
paying to that other state a sales tax thereon and then consumes
that gasoline or special fuel in its operation of a motor carrier
in this state, without being statutorily allowed a credit for such
sales tax against the tax imposed by this article with respect to
such gallonage of tax paid fuel consumed in this state; and
inasmuch as section ten-a of this article reestablishes the
allowance of such a credit and makes such allowance effectively
retroactive and applicable to gasoline and special fuel consumed in
this state after the thirtieth day of June, one thousand nine
hundred eighty-five, the purported constitutional infirmity is
cured. To avoid any question about whether this section was in
effect subsequent to the thirtieth day of June, one thousand nine
hundred eighty-five, this section is reenacted and expressly made
retroactive to the first day of July, one thousand nine hundred eighty-five, and the tax commissioner shall not refund or credit
any tax previously paid under this section due to a claim that the
tax was not lawfully imposed subsequent to the thirtieth day of
June, one thousand nine hundred eighty-five.
§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 shall
be 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 such 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 such 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 thirteen-a shall 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 shall be 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 shall be allowed in the same
manner and under the same conditions as a refund or credit is
allowed for the tax imposed by article fourteen-a of this chapter.
(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 shall be due
on the last day of the month. Every taxpayer shall make and file
with his or her remittance, a return showing such information as
the tax commissioner may require.
(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 such fuel. In order to encourage use
of a combined return and the making of a single payment each
quarter for both taxes, the due date of the return and tax due
under article fourteen-a of this chapter is 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 shall be used only for the purpose of
construction, reconstruction, maintenance and repair of highways,
and payment of principal and interest on state bonds issued for
highway purposes.
(g) Construction. -- The tax imposed by this article on the
use of motor fuel in this state shall not be 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 shall
take effect the first day of January, two thousand four.
NOTE: The purpose of this bill is to change the point at
which gasoline and special fuel is taxed. This is accomplished
through the repeal of Article Fourteen, Chapter Eleven and the
enactment of Article Fourteen-C, Chapter Eleven. The bill imposes
a Motor Fuels Excise Tax when fuel is imported, other than by a
bulk transfer, into this state and when it is removed, other than
by bulk transfer, from the bulk transfer/terminal system in this
state. While the rate of taxation levied on motor fuel remains the
same as that currently in effect, the number of businesses that
actually collect and remit the tax is substantially reduced. The
exemptions currently in existence continue. Licensing and bonding
is required for suppliers, permissive suppliers, importers,
exporters, terminal operators, blenders, transporters and
distributors.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§11-14-31 is new; therefore, strike-throughs and underscoring
have been omitted.
§§11-14C-1 through 47 are new; therefore, strike-throughs and
underscoring have been omitted.
§11-15-18b and §11-15A-13a are new; therefore, strike-throughs
and underscoring have been omitted.