ENROLLED
Senate Bill No. 581
(By Senator Helmick)
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[Passed March 9, 2006; in effect ninety days from passage.]
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AN ACT to amend and reenact §11-14C-2 of the Code of West Virginia,
1931, as amended, relating to the motor fuel excise tax; and
amending the definition of "person" to include responsible
persons.
Be it enacted by the Legislature of West Virginia:
That §11-14C-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 14C. MOTOR FUEL EXCISE TAX.
§11-14C-2. Definitions.
As used in this article and unless the context requires
otherwise, the following terms have the meaning ascribed herein.
(1) "Agricultural purposes" means the activities of:
(A) Cultivating the soil, including the planting and
harvesting of crops, for the commercial production of food, fiber
and ornamental woodland products;
(B) Using land for breeding and management of farm livestock,
including dairy, apiary, equine or poultry husbandry; and
(C) Using land for the practice of horticulture including the
growing of Christmas trees, orchards and nursery stock: Provided,
That agricultural purposes shall not include commercial forestry,
growing of timber for commercial purposes or any other activity
that normally would not be included in subdivision (A), (B) or (C)
of this definition.
(2) "Aircraft" includes any airplane or helicopter.
(3) "Alcohol" means motor fuel grade ethanol or a mixture of
motor fuel-grade ethanol and methanol, excluding denaturant and
water that is a minimum of ninety-eight percent ethanol or methanol
by volume.
(4) "Article" or "this article" means article fourteen-c,
chapter eleven of this code.
(5) "Assessment" means a written determination by the
commissioner of the amount of taxes owed by a taxpayer.
(6) "Aviation fuel" means aviation gasoline or aviation jet
fuel.
(7) "Aviation gasoline" means motor fuel designed for use in
the operation of aircraft other than jet aircraft, and sold or used
for that purpose.
(8) "Aviation jet fuel" means motor fuel designed for use in
the operation of jet or turbo-prop aircraft and sold or used for
that purpose.
(9) "Biodiesel fuel" means any motor fuel or mixture of motor
fuels that is derived, in whole or in part, from agricultural
products or animal fats, or the wastes of such products or fats,
and is advertised as, offered for sale as, suitable for use or used
as motor fuel in an internal combustion engine.
(10) "Blended fuel" means a mixture composed of gasoline or
diesel fuel and another liquid, including, but not limited to,
gasoline blend stocks, gasohol, ethanol, methanol, fuel grade
alcohol, diesel fuel enhancers and resulting blends, other than a
de minimus amount of a product such as carburetor detergent or
oxidation inhibitor, that can be used as a motor fuel in a highway
vehicle.
(11) "Blender" means a person who produces blended motor fuel
outside the bulk transfer/terminal system.
(12) "Blending" means the mixing of one or more petroleum
products, with or without another product, regardless of the
original character of the product blended, if the product obtained
by the blending is capable of use in the generation of power for
the propulsion of a motor vehicle, an airplane or a marine vessel.
Blending does not include mixing that occurs in the process of
refining by the original refiner of crude petroleum or the blending
of products known as lubricating oil in the production of
lubricating oils and greases.
(13) "Bulk plant" means a motor fuel storage and distribution
facility that is not a terminal and from which motor fuel may be removed at a rack.
(14) "Bulk transfer" means any transfer of motor fuel from one
location to another by pipeline tender or marine delivery within a
bulk transfer/terminal system, including, but not limited to, all
of the following:
(A) A marine vessel movement of motor fuel from a refinery or
terminal to a terminal;
(B) Pipeline movements of motor fuel from a refinery or
terminal to a terminal;
(C) Book transfer of motor fuel within a terminal between
licensed suppliers prior to completion of removal across the rack;
and
(D) Two-party exchange between licensed suppliers or between
licensed suppliers and permissive suppliers.
(15) "Bulk user" means a person who maintains storage
facilities for motor fuel and uses part or all of the stored motor
fuel to operate a motor vehicle, watercraft or aircraft.
(16) "Bulk transfer/terminal system" means the motor fuel
distribution system consisting of refineries, pipelines, marine
vessels, and terminals. Motor fuel in a refinery, a pipeline, a
terminal or a marine vessel transporting motor fuel to a refinery
or terminal is in the bulk transfer/terminal system. Motor fuel in
a motor fuel storage facility including, but not limited to, a bulk
plant that is not part of a refinery or terminal, in the motor fuel
supply tank of any engine or motor vehicle, in a marine vessel transporting motor fuel to a motor fuel storage facility that is
not in the bulk transfer/terminal system, or in any tank car, rail
car, trailer, truck or other equipment suitable for ground
transportation is not in the bulk transfer/terminal system.
(17) "Carrier" means any operator of a pipeline or marine
vessel engaged in the business of transporting motor fuel above the
terminal rack.
(18) "Code" means the Code of West Virginia of one thousand
nine hundred thirty-one, as amended.
(19) "Commercial watercraft" means a watercraft employed in
the business of commercial fishing, transporting persons or
property for compensation or hire or any other trade or business.
(20) "Commissioner" or "tax commissioner" means the West
Virginia State Tax Commissioner or his or her delegate.
(21) "Compressed natural gas" means natural gas that has been
compressed and dispensed into motor fuel storage containers and is
advertised as, offered for sale as, suitable for use as, or used as
an engine motor fuel.
(22) "Corporate or partnership officer" means an officer or
director of a corporation, partner of a partnership, or member of
a limited liability company, who as an officer, director, partner
or member is under a duty to perform on behalf of the corporation,
partnership, or limited liability company the tax collection,
accounting or remitting obligations.
(23) "Dead storage" is the amount of motor fuel that cannot be pumped out of a motor fuel storage tank because the motor fuel is
below the mouth of the draw pipe. The amount of motor fuel in dead
storage is two hundred gallons for a tank with a capacity of less
than ten thousand gallons and four hundred gallons for a tank with
a capacity of ten thousand gallons or more.
(24) "Denaturants" means and includes gasoline, natural
gasoline, gasoline components or toxic or noxious materials added
to motor fuel grade ethanol to make it unsuitable for beverage use,
but not unsuitable for automotive use.
(25) "Designated inspection site" means any state highway
inspection station, weigh station, agricultural inspection station,
mobile station or other location designated by the commissioner to
be used as a motor fuel inspection site.
(26) "Destination state" means the state, territory, or
foreign country to which motor fuel is directed for delivery into
a storage facility, a receptacle, a container or a type of
transportation equipment for the purpose of resale or use. The
term shall not include a tribal reservation of any recognized
Native American tribe.
(27) "Diesel fuel" means any liquid that is advertised as,
offered for sale as, sold for use as, suitable for use as or used
as a motor fuel in a diesel-powered highway vehicle or watercraft.
The term includes #1 fuel oil, #2 fuel oil, undyed diesel fuel and
kerosene, but shall not include gasoline or aviation fuel.
(28) "Distributor" means a person who acquires motor fuel from a licensed supplier, permissive supplier, or from another licensed
distributor for subsequent sale or use.
(29) "Diversion" means transporting motor fuel outside a
reasonably direct route from the source to the destination state.
(30) "Division" or "State Tax Division" means the Tax Division
of the West Virginia Department of Revenue.
(31) "Dyed diesel fuel" means diesel fuel that meets the
dyeing and marking requirements of section 4082, Title 26, United
States Code, regardless of how the diesel fuel was dyed.
(32) "End seller" means the person who sells motor fuel to the
ultimate user of the motor fuel.
(33) "Export" means to obtain motor fuel in West Virginia for
sale or other distribution in another state, territory, or foreign
country.
(34) "Exporter" means a person that exports motor fuel from
this state. The seller is the exporter of motor fuel delivered
out-of-state by or for the seller and the purchaser is the exporter
of motor fuel delivered out-of-state by or for the purchaser.
(35) "Fuel" means motor fuel.
(36) "Fuel alcohol" means methanol or motor fuel grade
ethanol.
(37) "Fuel grade ethanol" means the ASTM standard in effect on
the effective date of this article as the D-4806 specification for
denatured motor fuel grade ethanol for blending with gasoline.
(38) "Fuel supply tank" means any receptacle on a motor vehicle from which motor fuel is supplied for the propulsion of the
motor vehicle.
(39) "Gallon" means a unit of liquid measure as customarily
used in the United States containing two hundred thirty-one cubic
inches by volume.
(40) "Gasohol" means a blended motor fuel composed of gasoline
and motor fuel alcohol.
(41) "Gasoline" means any product commonly or commercially
known as gasoline, regardless of classification, that is advertised
as, offered for sale as, sold for use as, suitable for use as or
used as motor fuel in an internal combustion engine, including
gasohol, but does not include special fuel as defined in this
section.
(42) "Gasoline blend stocks" includes any petroleum product
component of gasoline, such as naphtha, reformate, or toluene,
listed in Treas. Reg. §48.4081-1(c) (3) that can be blended for
use in a motor fuel. However, the term does not include any
substance that will be ultimately used for consumer nonmotor fuel
use and is sold or removed in drum quantities of fifty-five gallons
or less at the time of the removal or sale.
(43) "Gross gallons" means the total measured product,
exclusive of any temperature or pressure adjustments,
considerations or deductions, in U. S. gallons.
(44) "Governmental entity" means this state or any political
subdivision thereof or the United States or its commissioners, agencies and instrumentalities.
(45) "Heating oil" means any combustible liquid, including,
but not limited to, #1 fuel oil, #2 dyed fuel oil and kerosene,
that is burned in a boiler, furnace, or stove for heating or for
industrial processing purposes.
(46) "Highway" means every way or place of whatever nature
open to the use of the public for purposes of vehicular travel in
this state, including the streets and alleys in towns and cities.
(47) "Highway vehicle" means any self-propelled vehicle,
trailer or semitrailer that is designed or used for transporting
persons or property over the public highway and includes all
vehicles subject to registration under article three, chapter
seventeen-a of this code.
(48) "Import" means to bring motor fuel into this state by
motor vehicle, marine vessel, pipeline, or any other means.
However, import does not include bringing motor fuel into this
state in the motor fuel supply tank of a motor vehicle, if the
motor fuel is used to power that motor vehicle.
(49) "Importer" means a person that imports motor fuel into
this state. The seller is the importer for motor fuel delivered
into this state from outside of this state by or for the seller and
the purchaser is the importer for motor fuel delivered into this
state from outside of this state by or for the purchaser.
(50) "Import verification number" means the number assigned by
the commissioner with respect to a single transport vehicle delivery into this state from another state upon request for an
assigned number by an importer or the transporter carrying taxable
motor fuel into this state for the account of an importer.
(51) "In this state" means the area within the borders of West
Virginia, including all territory within the borders of West
Virginia that is owned by the United States of America.
(52) "Invoiced gallons" means the gallons actually billed on
an invoice for payment.
(53) "Licensee" means any person licensed by the commissioner
pursuant to section ten of this article.
(54) "Liquid" means any substance that is liquid above its
freezing point.
(55) "Liquefied natural gas" means natural gas that has been
liquefied at -126.1 degrees centigrade and stored in insulated
cryogenic tanks for use as an engine motor fuel.
(56) "Motor carrier" means any vehicle used, designated or
maintained for the transportation of persons or property and having
two axles and a gross vehicle weight exceeding twenty-six thousand
pounds or having three or more axles regardless of weight or is
used in combination when the weight of the combination exceeds
twenty-six thousand pounds or registered gross vehicle weight, and
any aircraft, barge or other watercraft or railroad locomotive
transporting passengers or freight in or through this state:
Provided, That the gross vehicle weight rating of the vehicles
being towed is in excess of ten thousand pounds. The term motor carrier does not include any type of recreational vehicle.
(57) "Motor fuel" means gasoline, blended fuel, aviation fuel
and any special fuel.
(58) "Motor fuel transporter" means a person who transports
motor fuel outside the bulk transfer/terminal system by means of a
transport vehicle, a railroad tank car, or a marine vessel.
(59) "Motor vehicle" means automobiles, motor carriers, motor
trucks, motorcycles and all other vehicles or equipment, engines or
machines which are operated or propelled by combustion of motor
fuel.
(60) "Net gallons" means the amount of motor fuel measured in
gallons when adjusted to a temperature of sixty degrees fahrenheit
and a pressure of fourteen and seven-tenths pounds pressure per
square inch.
(61) "Permissive supplier" is a person who may not be subject
to the taxing jurisdiction of this state, but who meets both of the
following requirements: (A) Is registered under section 4101 of the
Internal Revenue Code for transactions in motor fuel in the bulk
transfer/terminal system; and (B) a position holder in motor fuel
only located in another state or a person who receives motor fuel
only in another state pursuant to a two-party exchange: Provided,
That a person is classified as a supplier if it has or maintains,
occupies or uses, within this state, directly or by a subsidiary,
an office, distribution house, sales house, warehouse, or other
place of business, or any agent (by whatever name called) operating within this state under the authority of the supplier or its
subsidiary.
(62) "Person" means any individual; firm; cooperative;
association; corporation; limited liability corporation; estate;
guardian; executor; administrator; trust; business trust;
syndicate; partnership; limited partnership; copartnership;
organization; 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; and also any officer, employee or
member of any of the foregoing who, as an officer, employee or
member, is under a duty to perform or is responsible for the
performance of an act prescribed by the provisions of this article.
(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 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.