(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.
(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.
(b) The commissioner may divulge tax information to the commissioner of the division of highways: Provided, That the information disclosure requirements of section five-d, article ten of this chapter are satisfied.
(c) The commissioner may provide to any person a list of licensees. The list shall state the name, business address and, if available, telephone number of each licensee on the list.
(d) Any person to whom tax information is divulged pursuant to this section is subject to the prohibitions and penalties prescribed in article ten of this chapter as though that person was an employee of the state tax division.
(b) Determination of average wholesale price. --
(1) To simplify determining the average wholesale price of all motor fuel, the Tax Commissioner shall, effective with the period beginning the first day of the month of the effective date of the tax and each January 1 thereafter, determine the average wholesale price of motor fuel for each annual period on the basis of sales data gathered for the preceding period of July 1 through October 31. Notification of the average wholesale price of motor fuel shall be given by the Tax Commissioner at least thirty days in advance of each January 1 by filing notice of the average wholesale price in the State Register and by any other means as the Tax Commissioner considers reasonable.
(2) The "average wholesale price" means the single, statewide average per gallon wholesale price, rounded to the third decimal (thousandth of a cent), exclusive of state and federal excise taxes on each gallon of motor fuel, as determined by the Tax Commissioner from information furnished by suppliers, importers and distributors of motor fuel in this state, or other information regarding wholesale selling prices as the Tax Commissioner may gather, or a combination of information: Provided, That in no event shall the average wholesale price be determined to be less than $.97 per gallon of motor fuel: Provided, however, That for calendar year 2009, the average wholesale price of motor fuel shall not exceed the average wholesale price of motor fuel for calendar year 2008 as determined pursuant to the notice filed by the Tax Commissioner with the Secretary of State on November 21, 2007, and published in the State Register on November 30, 2007: Provided further, That on and after January 1, 2010, in no event shall the average wholesale price be determined to be less than $2.34 per gallon of motor fuel: And provided further, That on and after January 1, 2011, the average wholesale price shall not vary by more than ten percent from the average wholesale price of motor fuel as determined by the Tax Commissioner for the previous calendar year.
(3) All actions of the Tax Commissioner in acquiring data necessary to establish and determine the average wholesale price of motor fuel, in providing notification of his or her determination prior to the effective date of any change in rate, and in establishing and determining the average wholesale price of motor fuel may be made by the Tax Commissioner without compliance with the provisions of article three, chapter twenty-nine-a of this code.
(4) In any administrative or court proceeding brought to challenge the average wholesale price of motor fuel as determined by the Tax Commissioner, his or her determination is presumed to be correct and shall not be set aside unless it is clearly erroneous.
(c) There is hereby levied a floorstocks tax on motor fuel held in storage outside the bulk transfer/terminal system as of the close of the business day preceding January 1, 2004, and upon which the tax levied by this section has not been paid. For the purposes of this section, "close of the business day" means the time at which the last transaction has occurred for that day. The floorstocks tax is payable by the person in possession of the motor fuel on January 1, 2004. The amount of the floorstocks tax on motor fuel is equal to the sum of the tax rate specified in subsection (a) of this section multiplied by the gallons in storage as of the close of the business day preceding January 1, 2004.
(1) Persons in possession of taxable motor fuel in storage outside the bulk transfer/terminal system as of the close of the business day preceding January 1, 2004, shall:
(A) Take an inventory at the close of the business day preceding January 1, 2004, to determine the gallons in storage for purposes of determining the floorstocks tax;
(B) Report no later than January 31, 2004, the gallons on forms provided by the commissioner; and
(C) Remit the tax levied under this section no later than June 1, 2004.
(2) In the event the tax due is paid to the commissioner on or before January 31, 2004, the person remitting the tax may deduct from their remittance five percent of the tax liability due.
(3) In the event the tax due is paid to the commissioner after June 1, 2004, the person remitting the tax shall pay, in addition to the tax, a penalty in the amount of five percent of the tax liability due.
(4) In determining the amount of floorstocks tax due under this section, the amount of motor fuel in dead storage may be excluded. There are two methods for calculating the amount of motor fuel in dead storage:
(A) If the tank has a capacity of less than ten thousand gallons, the amount of motor fuel in dead storage is two hundred gallons and if the tank has a capacity of ten thousand gallons or more, the amount of motor fuel in dead storage is four hundred gallons; or
(B) Use the manufacturer's conversion table for the tank after measuring the number of inches between the bottom of the tank and the bottom of the mouth of the drainpipe: Provided, That the distance between the bottom of the tank and the bottom of the mouth of the draw pipe is presumed to be six inches.
(d) Every licensee who, on the effective date of any rate change, has in inventory any motor fuel upon which the tax or any portion thereof has been previously paid shall take a physical inventory and file a report thereof with the commissioner, in the format as required by the commissioner, within thirty days after the effective date of the rate change, and shall pay to the commissioner at the time of filing the report any additional tax due under the increased rate.
(b) Except as provided in subsection (a) of this section, the tax levied pursuant to section five of this article is measured by invoiced gallons of motor fuel removed, other than by a bulk transfer:
(1) From the bulk transfer/terminal system within this state;
(2) From the bulk transfer/terminal system outside this state for delivery to a location in this state as represented on the shipping papers: Provided, That the supplier imports the motor fuel for the account of the supplier; and
(3) Upon sale or transfer in a terminal or refinery in this state to any person not holding a supplier's license and payable by the person selling or transferring the motor fuel.
(c) The tax levied pursuant to section five of this article upon motor fuel removed from a refinery or terminal in this state shall be collected by the supplier, as shown in the records of the terminal operator, acting as trustee, from the person removing the motor fuel from the facility.
(d) The tax levied pursuant to section five of this article shall not apply to motor fuel imported into this state in the motor fuel supply tank or tanks of a motor vehicle: Provided, That the person owning or operating as a motor carrier is not relieved of any taxes imposed by article fourteen-a of this chapter.
(e) The tax imposed pursuant to section five of this article at the point that blended motor fuel is made in West Virginia outside the bulk transfer/terminal system is payable by the blender. The number of gallons of blended motor fuel on which the tax is payable is the difference, if any, between the number of invoiced gallons of blended motor fuel made and the number of invoiced gallons of previously taxed motor fuel used to make the blended motor fuel.
(f) The terminal operator of a terminal in this state is jointly and severally liable with the supplier for the tax levied pursuant to section five of this article and shall remit payment to this state at the same time and on the same basis as a supplier under section twenty-two of this article upon:
(1) The removal of motor fuel from the terminal on account of any supplier who is not licensed in this state: Provided, That the terminal operator is relieved of liability if the terminal operator establishes all of the following:
(A) The terminal operator has a valid terminal operator's license issued for the facility from which the motor fuel is withdrawn;
(B) The terminal operator has a copy of a valid license from the supplier as required by the commissioner; and
(C) The terminal operator has no reason to believe that any information is false; or
(2) The removal of motor fuel that is not dyed and marked in accordance with internal revenue service requirements, if the terminal operator provides any person with any bill of lading, shipping paper or similar document indicating that the motor fuel is dyed and marked in accordance with the internal revenue service requirements.
(b) The terminal operator whose motor fuel is unaccounted for is liable for the tax levied by this section. Motor fuel received by a terminal operator and not shown on an informational return filed by the terminal operator with the commissioner as having been removed from the terminal is presumed to be unaccounted-for motor fuel losses. A terminal operator may rebut this presumption by establishing that motor fuel received at a terminal, but not shown on an informational return as having been removed from the terminal, was an accounted-for loss or constitutes part of a transmix.
(1) Dyed diesel fuel that is used to operate a highway vehicle for a taxable use other than a use exempt under 26 U.S.C. §4082;
(2) Motor fuel that was allowed an exemption from the motor fuel tax and was then used or consumed on a highway; and
(3) Motor fuel that is used to operate a highway vehicle after an application for a refund of tax paid on the motor fuel is made or allowed on the basis that the motor fuel was used for an off-highway purpose.
(b) The operator of a highway vehicle that uses untaxed or refunded motor fuel that is taxable under this section is liable for the tax. If the highway vehicle that uses the motor fuel is owned by or leased to a motor carrier, the operator of the highway vehicle and the motor carrier are jointly and severally liable for the tax. If the end seller of motor fuel taxable under this section knew or had reason to know that the motor fuel would be used for a purpose that is taxable under this section, the operator of the highway vehicle and the end seller are jointly and severally liable for the tax.
(c) The tax liability levied by this section is in addition to any other penalty imposed pursuant to this article.
(1) All motor fuel exported from this state to any other state or nation: Provided, That the supplier collects and remits to the destination state or nation the appropriate amount of tax due on the motor fuel transported to that state or nation: Provided, however, That this exemption does not apply to any motor fuel which is transported and delivered outside this state in the motor fuel supply tank of a highway vehicle;
(2) Sales of aviation fuel;
(3) Sales of dyed special fuel; and
(4) Sales of propane.
(b) Per se exemptions from variable component of tax. -- Sales of motor fuel to the following are exempt per se from the variable component of the tax levied by section five of this article and the variable component may not be paid at the rack:
All motor fuel exported from this state to any other state or nation: Provided, That the supplier collects and remits to the destination state or nation the appropriate amount of tax due on the motor fuel transported to that state or nation: Provided, however, That this exemption does 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 from flat rate component of tax. -- Any person having a right or claim to any of the following exemptions from the flat rate component of the tax levied by section five of this article shall first pay the tax levied by this article and then apply to the Tax Commissioner for a refund:
(1) The United States or any agency thereof: Provided, That if the United States government, or any agency or instrumentality thereof, does not pay the seller the tax imposed by section five of this article on any purchase of motor fuel, the person selling tax previously paid motor fuel to the United States government, or its agencies or instrumentalities, may then claim a refund of the flat rate component of tax imposed by said section on those sales;
(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 this subdivision and subdivisions (1) through (5), inclusive, of this subsection shall be used in vehicles or equipment owned and operated by the respective government entity or government agency or authority;
(7) All invoiced 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 or the exporter has reported to the destination state or nation that the motor fuel was sold in a transaction not subject to tax in that state or nation: Provided, however, That a refund may not be granted on any motor fuel which is transported and delivered outside this state in the motor fuel supply tank of a highway vehicle;
(8) All gallons of motor fuel used and consumed in stationary off-highway turbine engines;
(9) All gallons of special fuel used for heating any public or private dwelling, building or other premises;
(10) All gallons of special fuel used for boilers;
(11) All gallons of motor fuel used as a dry cleaning solvent or commercial or industrial solvent;
(12) All gallons of motor fuel used as lubricants, ingredients or components of any manufactured product or compound;
(13) All gallons of motor fuel sold for use or used as a motor fuel for commercial watercraft;
(14) All gallons of special fuel sold for use or consumed in railroad diesel locomotives;
(15) All gallons of motor fuel purchased in quantities of twenty-five gallons or more for use as a motor fuel for internal combustion engines not operated upon highways of this state;
(16) All gallons of motor fuel purchased in quantities of twenty-five gallons or more and used to power a power take-off unit on a motor vehicle. When a motor vehicle with auxiliary equipment uses motor fuel and there is no auxiliary motor for the equipment or separate tank for a motor, the person claiming the refund may present to the Tax Commissioner a statement of his or her claim and is allowed a refund for motor fuel used in operating a power take-off unit on a cement mixer truck or garbage truck equal to twenty-five percent of the tax levied by this article paid on all motor fuel used in such a truck;
(17) Motor fuel used by any person regularly operating any vehicle under a certificate of public convenience and necessity or under a contract carrier permit for transportation of persons when purchased in an amount of twenty-five gallons or more: Provided, That the amount refunded is equal to six cents per gallon: Provided, however, That the gallons of motor fuel have been consumed in the operation of urban and suburban bus lines and the majority of passengers use the bus for traveling a distance not exceeding forty miles, measured one way, on the same day between their places of abode and their places of work, shopping areas or schools; and
(18) All gallons of motor fuel that are not otherwise exempt under subdivisions (1) through (6), inclusive, of this subsection and that are purchased and used by any bona fide volunteer fire department, nonprofit ambulance service or emergency rescue service that has been certified by the municipality or county wherein the bona fide volunteer fire department, nonprofit ambulance service or emergency rescue service is located.
(d) Refundable exemptions from variable rate component of tax. -- Any of the following persons may claim an exemption from the variable rate component of the tax levied by section five of this article on the purchase and use of motor fuel by first paying the tax levied by this article and then applying to the Tax Commissioner for a refund.
(1) The United States or any agency thereof: Provided, That if the United States government, or any agency or instrumentality thereof, does not pay the seller the tax imposed by section five of this article on any purchase of motor fuel, the person selling tax previously paid motor fuel to the United States government, or its agencies or instrumentalities, may then claim a refund of the variable rate of tax imposed by said section on those sales.
(2) This state and its institutions;
(3) Any county government or unit or agency thereof;
(4) Any municipal government or any agency thereof;
(5) Any county boards of education;
(6) Any urban mass transportation authority created pursuant to the provisions of article twenty-seven, chapter eight of this code;
(7) Any municipal, county, state or federal civil defense or emergency service program pursuant to a government contract for use in conjunction therewith, or to any person on whom is imposed a requirement to maintain an inventory of motor fuel for the purpose of the program: Provided, That fueling facilities used for these purposes are not capable of fueling motor vehicles and the person in charge of the program has in his or her possession a letter of authority from the Tax Commissioner certifying his or her right to the exemption;
(8) Any bona fide volunteer fire department, nonprofit ambulance service or emergency rescue service that has been certified by the municipality or county wherein the bona fide volunteer fire department, nonprofit ambulance service or emergency rescue service is located; or
(9) All invoiced 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 may not be granted on any motor fuel which is transported and delivered outside this state in the motor fuel supply tank of a highway vehicle.
(e) The provision in subdivision (9), subsection (a), section nine, article fifteen of this chapter that exempts as a sale for resale those sales of gasoline and special fuel by a distributor or importer to another distributor does not apply to sales of motor fuel under this article.
(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.
(b) An applicant for a license as a supplier, permissive supplier, terminal operator, importer, blender, or distributor, shall satisfy the following requirements:
(1) If the applicant is a corporation, the applicant shall either be incorporated in this state or authorized to transact business in this state;
(2) If the applicant is a limited liability company, the applicant shall either be organized in this state or authorized to transact business in this state;
(3) If the applicant is a limited liability partnership, the applicant shall either be formed in this state or authorized to transact business in this state; and
(4) If the applicant is an individual or a general partnership, the applicant shall designate an agent for service of process and provide the agent's name and address.
(c) An applicant for a license as a supplier, permissive supplier, terminal operator, or blender shall have a federal certificate of registry issued under 26 U.S.C. §4101 that authorizes the applicant to enter into federal tax-free transactions in taxable motor fuel in the terminal transfer system. An applicant that is required to have a federal certificate of registry shall include the registration number of the certificate on the application for a license under this section. An applicant for a license as an importer, an exporter, or a distributor who has a federal certificate of registry issued under 26 U.S.C. §4101 shall include the registration number of the certificate on the application for a license under this section.
(d) An applicant for a license as an importer or distributor shall list on the application each state from which the applicant intends to import motor fuel and, if required by a state listed, shall be licensed or registered for motor fuel tax purposes in that state. If a state listed requires the applicant to be licensed or registered, the applicant shall provide the applicant's license or registration number of that state. A licensee who intends to import motor fuel from a state not listed on its application for an importer's license or a distributor's license shall provide the commissioner written notice of the action before importing motor fuel from that state. The notice shall include the information that is required on the license application.
(e) An applicant for a license as an exporter shall designate an agent located in West Virginia for service of process and provide the agent's name and address. An applicant for a license as an exporter or distributor shall list on the application each state to which the applicant intends to export motor fuel received in West Virginia by means of a transfer that is outside the terminal transfer system and, if required by a state listed, shall be licensed or registered for motor fuel tax purposes in that state. If a state listed requires the applicant to be licensed or registered, the applicant shall provide the applicant's license or registration number of that state. A licensee who intends to export motor fuel to a state not listed on its application for an exporter's license or a distributor's license shall provide the commissioner written notice of the action before exporting motor fuel to that state. The notice shall include the information required on the license application.
(f) An applicant for a license as a motor fuel transporter shall list on the application each state from which and to which the applicant intends to transport motor fuel and, if required by a state listed, shall be licensed or registered for motor fuel tax purposes in that state. If a state listed requires the applicant to be licensed or registered, the applicant shall provide the applicant's license or registration number of that state. A licensee who intends to transport motor fuel from or to a state not listed on its application for a motor fuel transporter's license shall provide the commissioner written notice of the action before transporting motor fuel from or to that state. The notice shall include the information that is required on the license application.
(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.
(1) For a supplier license, the amount shall be a minimum of one hundred thousand dollars or an amount equal to three months' tax liability, whichever is greater: Provided, That the amount shall not exceed two million 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;
(2) For a permissive supplier license, the amount shall be a minimum of one hundred thousand dollars or an amount equal to three months' tax liability, whichever is greater: Provided, That the amount shall not exceed two million 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;
(3) For a terminal operator license, the amount shall be a minimum of one hundred thousand dollars or an amount equal to three months' tax liability, whichever is greater: Provided, That the amount shall not exceed two million 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;
(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 a minimum of one hundred thousand dollars or an amount equal to three months' tax liability, whichever is greater: Provided, That the amount shall not exceed two million 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;
(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 a minimum of one hundred thousand dollars or an amount equal to three months' tax liability, whichever is greater: Provided, That the amount shall not exceed two million 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;
(7) For a license as both a distributor and an importer as described in subdivision (5) of this subsection, the amount shall be a minimum of two thousand dollars or an amount equal to three months' tax liability, whichever is greater: Provided, That the amount shall not exceed three hundred thousand dollars: Provided, however, That when required by the commissioner to file a cash bond or a continuous surety bond in an additional amount, the licensee shall comply with the commissioner's notification within thirty days after receiving that notification;
(8) For an exporter license, the amount shall be a minimum of two thousand dollars or an amount equal to three months' tax liability, whichever is greater: Provided, That the amount shall not exceed three hundred thousand dollars: Provided, however, That when required by the commissioner to file a cash bond or a continuous surety bond in an additional amount, the licensee shall comply with the commissioner's notification within thirty days after receiving that notification;
(9) For a blender license, the amount shall be a minimum of two thousand dollars or an amount equal to three months' tax liability, whichever is greater: Provided, That the amount shall not exceed three hundred thousand dollars: Provided, however, That when required by the commissioner to file a cash bond or a continuous surety bond in an additional amount, the licensee shall comply with the commissioner's notification within thirty days after receiving that notification;
(10) For a distributor license, the amount shall be a minimum of two thousand dollars or an amount equal to three months' tax liability, whichever is greater: Provided, That the amount shall not exceed three hundred thousand dollars: Provided, however, That when required by the commissioner to file a cash bond or a continuous surety bond in an additional amount, the licensee shall comply with the commissioner's notification within thirty days after receiving that notification;
(11) For a motor fuel transporter license, there shall be no bond; and
(12) An applicant for a licensed activity listed under subdivisions (1) through (10), inclusive, of this subsection may in lieu of posting either the cash bond or continuous surety bond required by this subsection provide proof of financial responsibility acceptable to the commissioner: Provided, That the proof of financial responsibility shall demonstrate the absence of circumstances indicating risk with the collection of taxes from the applicant: Provided, however, That the following shall constitute proof of financial responsibility:
(A) Proof of five million dollars' net worth shall constitute evidence of financial responsibility in lieu of posting the required bond;
(B) Proof of two million five hundred thousand dollars' net worth constitutes financial responsibility in lieu of posting fifty percent of the required bond; and
(C) Proof of one million two hundred fifty thousand dollars' net worth constitutes financial responsibility in lieu of posting twenty-five percent of the required bond. Net worth is calculated on a business, not individual basis.
(13) In lieu of providing either cash bond, a continuance surety bond or proof of financial responsibility acceptable to the commissioner, an applicant for a licensed activity listed under this subsection that has established with the state tax division a good filing record that is accurate, complete and timely for the preceding eighteen months shall be granted a waiver of the requirement to file either a cash bond or continuance surety bond: Provided, That when a licensee that has been granted a waiver of the requirement to file a bond violates a provision of this article, the licensee shall file the applicable bond as stated in this subsection.
(14) Any licensee who disagrees with the commissioner's decision requiring new or additional security may seek a hearing by filing a petition with the office of tax appeals in accordance with the provisions of section nine, article ten-a of this chapter: Provided, That the hearing shall be provided within thirty days after receipt by the office of tax appeals of the petition for the hearing.
(b) The surety must be authorized under article nineteen, chapter thirty-three of this code to engage in business of transacting surety insurance within this state. The cash bond and the continuous surety bond are conditioned upon faithful compliance with the provisions of this article, including the filing of the returns and payment of all tax prescribed by this article. The cash bond and the continuous surety bond shall be approved by the commissioner as to sufficiency and form and shall indemnify the state against any loss arising from the failure of the taxpayer to pay for any cause whatever the motor fuel excise tax levied by this article.
(c) Any surety on a continuous surety bond furnished hereunder shall be relieved, released and discharged from all liability accruing on the bond after the expiration of sixty days from the date the surety shall have lodged, by certified mail, with the commissioner a written request to be discharged. Discharge from the continuous surety bond shall not relieve, release or discharge the surety from liability already accrued or which shall accrue before the expiration of the sixty-day period. Whenever any surety seeks discharge as herein provided, it is the duty of the principal of the bond to supply the commissioner with another continuous surety bond or a cash bond prior to the expiration of the original bond. Failure to provide a new continuous surety bond or a cash bond shall result in the commissioner canceling each license and registration previously issued to the person.
(d) Any taxpayer that has furnished a cash bond hereunder shall be relieved, released and discharged from all liability accruing on the cash bond after the expiration of sixty days from the date the taxpayer shall have lodged, by certified mail, with the commissioner a written request to be discharged and the amount of the cash bond refunded: Provided, That the commissioner may retain all or part of the cash bond until such time as the commissioner may perform an audit of the taxpayer's business or three years, whichever first occurs. Discharge from the cash bond shall not relieve, release or discharge the taxpayer from liability already accrued or which shall accrue before the expiration of the sixty-day period. Whenever any taxpayer seeks discharge as herein provided, it is the duty of the taxpayer to provide the commissioner with another cash bond or a continuous surety bond prior to the expiration of the original cash bond. Failure to provide either a new cash bond or a continuous surety bond shall result in the commissioner canceling each license and registration previously issued to the taxpayer.
(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.
(b) All taxes for which the licensee is liable under this article but are not yet due are due on the date of the discontinuance. If the licensee has transferred the business to another person and does not give the notice required by this section, the person to whom the business was transferred is jointly and severally liable for the amount of any tax owed by the licensee to this state on the date the business was transferred. The liability of the person to whom the business was transferred shall not exceed the value of the property acquired from the licensee.
(1) Filing by the licensee of a false report of the data or information required by this article;
(2) Failure, refusal, or neglect of the licensee to file a report or information required by this article;
(3) Failure of the licensee to pay the full amount of the tax due or pay any penalties or interest due as required by this article;
(4) Failure of the licensee to keep accurate records of the quantities of motor fuel received, produced, refined, manufactured, compounded, sold, or used in West Virginia;
(5) Failure to file a new or additional cash bond or continuous surety bond upon request of the commissioner pursuant to section thirteen of this article;
(6) Conviction of the licensee or a principal of the licensee for any act prohibited under this article;
(7) Failure, refusal, or neglect of a licensee to comply with any other provision of this article or any rule promulgated pursuant to this article; or
(8) A change in the ownership or control of the business.
(b) Upon cancellation of any license for any cause listed in subsection (a) of this section, the tax levied under this article becomes due and payable on all untaxed motor fuel held in storage or otherwise in the possession of the licensee and all motor fuel sold, delivered, or used prior to the cancellation on which the tax has not been paid.
(c) The commissioner may cancel any license upon the written request of the licensee.
(d) Upon cancellation of any license and payment by the licensee of all taxes due, including all penalties accruing due to any failure by the licensee to comply with the provisions of this article, the commissioner shall cancel and surrender the bond, filed by the licensee: Provided, That the requirements of section thirteen of this article are satisfied.
(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.
(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.
(b) A licensed exporter shall remit tax due on motor fuel removed at a terminal rack to the supplier of the motor fuel. The date by which an exporter shall remit tax is governed by the law of the destination state of the exported motor fuel: Provided, That if the laws of the destination state prohibit the collection of the destination state's tax, the supplier may elect to either collect the tax levied by section five of this article or, in lieu thereof, take from the exporter documentation sufficient to establish: (i) That the motor fuel was immediately exported to another state and the name of that state; (ii) that the entire amount of motor fuel exported was reported to the destination state and the tax imposed on the motor fuel by the destination state was paid by the exporter; (iii) the name and address of the person to which the motor fuel was sold and the quantity of motor fuel sold to that person; and (iv) that the exporter shall pay the tax levied by section five of this article if the foregoing documentation is not provided: Provided, however, That until such time as either the tax imposed by this state is paid, the tax imposed by the destination state is paid or the motor fuel is sold in a transaction not subject to tax in the destination state, both the supplier and the exporter shall be jointly liable for the tax levied by section five of this article.
(c) All tax payments received by a supplier or permissive supplier shall be held in trust by the supplier or permissive supplier until the supplier or permissive supplier remits the tax payment to this state or to another state and the supplier or permissive supplier shall constitute the trustee for the tax payments.
(d) The license of a licensed distributor, exporter or importer who fails to pay the full amount of tax required by this article is subject to cancellation.
(b) A supplier or permissive supplier who sells motor fuel to a distributor or importer after receiving notice from the commissioner that the commissioner has canceled the distributor's or importer's license is jointly and severally liable with the distributor or importer for any tax due on motor fuel sold to the distributor or importer subsequent to receipt of the notice: Provided, That the supplier or permissive supplier is not liable for tax due on motor fuel sold to a previously unlicensed distributor or importer after the supplier or permissive supplier receives notice from the commissioner that the commissioner has issued another license to the distributor or importer.
(c) If the commissioner cancels the license of a supplier or permissive supplier, the commissioner shall notify all licensed distributors, exporters and importers of the cancellation. If the commissioner issues a license to a supplier or permissive supplier whose license was previously canceled, the commissioner shall notify all licensed distributors, exporters, and importers of the issuance.
(d) A licensed distributor, exporter or importer who purchases motor fuel from a supplier or permissive supplier after receiving notice from the commissioner that the commissioner has canceled the supplier's or permissive supplier's license is jointly and severally liable with the supplier or permissive supplier for any tax due on motor fuel purchased from the supplier or permissive supplier after receiving the notice: Provided, That a licensed distributor that purchases motor fuel from a supplier or permissive supplier whose license has been canceled shall file a tax return on or before the last day of the month following the month in which the purchase occurred. The return shall include the following information and any other information required by the commissioner:
(1) The number of invoiced gallons of tax paid motor fuel, sorted by type of motor fuel, terminal code, name of seller, point of origin and carrier; and
(2) The number of invoiced gallons of untaxed motor fuel, sorted by type of motor fuel, terminal code, name of seller, point of origin and carrier.
The licensed distributor, exporter or importer is not liable for tax due on motor fuel purchased from a previously unlicensed supplier or permissive supplier after the licensee receives notice from the commissioner that the commissioner has issued another license to the supplier or permissive supplier.
(a) The number of invoiced 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 or motor fuel transporter;
(b) The number of invoiced 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 or motor fuel transporter;
(c) The number of invoiced 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 or motor fuel transporter; and
(d) The number of invoiced 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 or motor fuel transporter.
(b) A supplier or permissive supplier who timely files a return with the payment due may deduct, from the amount of tax payable with the return, an administrative discount of one tenth of one percent of the amount of tax payable to this state, not to exceed five thousand dollars per month.
(c) For sales from permissive suppliers or suppliers to licensed distributors, a supplier or permissive supplier shall deduct three fourths of one percent of the tax due from the licensed distributor as a discount to that licensed distributor. The discount given to the licensed distributor shall be reported on the supplier or the permissive supplier's next monthly return. This discount only applies to sales from permissive suppliers and suppliers to licensed distributors, and shall not apply to any other transactions, including, but not limited to, licensed distributor to licensed distributor transactions: Provided, That if the permissive supplier and/or supplier is also a licensed distributor, this discount shall not apply.
(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 invoiced gallons received. The supplier or permissive supplier shall give this notice after the end of each reporting period and before the licensee is required to remit the amount of tax due on the motor fuel.
(c) A supplier or permissive supplier of motor fuel at a terminal shall notify the commissioner within the time period established by the commissioner of any licensed distributors, licensed exporters or licensed importers who did not pay the tax due when the supplier or permissive supplier filed its return. The notice shall be transmitted to the commissioner in the form required by the commissioner.
(d) A supplier or permissive supplier who receives a payment of tax shall not apply the payment of tax to a debt that the person making the payment owes for motor fuel purchased from the supplier or permissive supplier.
(1) The number of invoiced 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 invoiced 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 invoiced gallons of imported motor fuel acquired from a bulk plant outside this state, listed by bulk plant name, address and type of motor fuel; and
(4) The import confirmation number, as may be required under section thirty-five of this article, of each import that is reported under subdivision (2) or (3) of this subsection, as applicable, and was removed from a terminal or bulk plant.
(b) An importer that imports by transport vehicle or another means of transfer outside the terminal transfer system motor fuel removed from a terminal located in another state in which: (1) The state from which the motor fuel is imported does not require the seller of the motor fuel to collect a motor fuel excise tax on the removal either at that state's rate or the rate of the destination state; and (2) the seller of the motor fuel is not a licensed supplier or permissive supplier, who timely files a return with the payment due, may deduct, from the amount of tax payable with the return, an administrative discount of one tenth of one percent of the amount of tax payable by the importer to this state not to exceed five thousand dollars per month.
(1) The beginning and ending inventory which pertains to the applicable reporting month;
(2) The number of gross 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 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 and net gallons of motor fuel gained or lost at the terminal during the month.
(b) 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.
(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.
(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.
(b) Any supplier, distributor, producer, retail dealer, exporter or importer, while the owner of motor fuel in this state, that loses any invoiced gallons of motor fuel through fire, lightning, breakage, flood or other casualty, which gallons having been previously included in the tax by or for that person, may claim a refund of a sum equal to the amount of the flat rate of the tax levied by section five of this article paid upon the invoiced gallons lost.
(c) Any dealer as defined in section two, article eleven-c, chapter forty-seven of the code, and any bulk plant in this state that purchases or receives motor fuel in this state upon which the tax levied by section five of this article has been paid, is entitled to an annual refund of the flat rate of the tax levied by section five of this article for invoiced gallons lost through evaporation: Provided, That only the owner of the bulk plant that is also the owner of the fuel in the bulk plant may claim this refund for invoiced gallons lost through evaporation. The refund is computed at the flat rate of tax levied per gallon under this article on all invoiced gallons of motor fuel actually lost due to evaporation, not exceeding one half of one percent of the adjusted total accountable gallons, computed as determined by the commissioner.
(d) Every supplier, distributor or producer, retail dealer, exporter or importer is entitled to a refund of the flat rate of the tax levied by section five of this article from this state of the amount resulting from a change of rate decreasing the tax under the provisions of this article on motor fuel on hand and in inventory on the effective date of the rate change, which motor fuel has been included in any previous computation by which the tax levied by this article has been paid.
(b) Any person claiming a refund pursuant to section thirty of this article shall file a petition in writing with the Commissioner. The petition shall be in the form and with supporting records as required by the Commissioner and made under the penalty of perjury.
(c) The right to receive any refund under the provisions of this section is not assignable and any assignment thereof is void and of no effect. No payment of any refund may be made to any person other than the original person entitled to claim the refund except as otherwise expressly provided in this article. 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: (A) The tax was erroneously or illegally paid; (B) the gallons were exported or lost by casualty; or (C) a change of rate took effect;
(2) A petition for refund under section thirty of this article for evaporation loss shall be filed within three years from the end of the year in which the evaporation occurred;
(3) A petition for refund under subsection (c) or (d), section nine of this article shall be filed with the Commissioner on or before the last day of January, April, July and October for purchases of motor fuel during the immediately preceding calendar quarter: Provided, That any application for refund made under authority of subdivision (15), subsection (c) of said section when the motor fuel is used to operate tractors and gas engines or threshing machines for agricultural purposes shall be filed within twelve months from the month of purchase or delivery of the motor fuel: Provided, however, That all persons authorized to claim a refundable exemption under the authority of subdivisions (1) through (6), inclusive, subsection (c), section nine of this article and subdivisions (1) through (6), inclusive, subsection (d) of said section shall do so no later than the thirty-first day of August for the purchases of motor fuel made during the preceding fiscal year ending the thirtieth day of June.
(d) Any petition for a refund not timely filed is not construed to be or constitute a moral obligation of the state of West Virginia for payment. Every petition for refund is subject to the provisions of section fourteen, article ten of this chapter.
(e) The Commissioner may make any investigation considered necessary before refunding to a person the tax levied by section five of this article. The Commissioner may also subject to audit the records related to a refund of the tax levied by section five of this article.
(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.
(b) The shipping document issued by the terminal operator or operator of a bulk plant shall contain the following information and any other information required by the commissioner:
(1) Identification, including address, of the terminal or bulk plant from which the motor fuel was received;
(2) Date the motor fuel was loaded;
(3) Invoiced gallons loaded;
(4) Destination state of the motor fuel as represented by the purchaser of the motor fuel or the purchaser's agent;
(5) In the case of aviation jet fuel, the shipping document shall be marked with the phrase "Aviation Jet Fuel, Not for On-road Use" or a similar phrase;
(6) In the case of dyed diesel fuel, the shipping document shall be marked with the phrase "Dyed Diesel Fuel, Nontaxable Use Only, Penalty for Taxable Use" or a similar phrase; and
(7) If the document is issued by a terminal operator, the invoiced gallons loaded and a statement indicating the name of the supplier that is responsible for the tax due on the motor fuel.
(c) A terminal operator or bulk plant operator may rely on the representation made by the purchaser of motor fuel or the purchaser's agent concerning the destination state of the motor fuel. In the event that either the terminal operator, bulk plant operator, purchaser or transporter determines prior to the shipment of motor fuel leaving the terminal or bulk plant that the destination state indicated on the shipping document is incorrect, the diversion procedure provided in subdivision (3), subsection (d) of this section shall be used to obtain authorization to deliver the motor fuel to a different state. A purchaser is liable for any tax due as a result of the purchaser's diversion of motor fuel from the represented destination state.
(d) A person to whom a shipping document was issued shall:
(1) Carry the shipping document in the means of conveyance for which it was issued when transporting the motor fuel described;
(2) Show the shipping document upon request to any law-enforcement officer, representative of the commissioner and any other authorized individual when transporting the motor fuel described;
(3) Deliver motor fuel to the destination state printed on the shipping document unless the person:
(A) Notifies the commissioner before transporting the motor fuel into a state other than the printed destination state that the person has received instructions after the shipping document was issued to deliver the motor fuel to a different destination state;
(B) Receives from the commissioner a confirmation number authorizing the diversion; and
(C) Writes on the shipping document the change in destination state and the confirmation number for the diversion; and
(4) Gives a copy of the shipping document to the person to whom the motor fuel is delivered.
(e) The person to whom motor fuel is delivered by barge, watercraft, railroad tank car or transport vehicle shall not accept delivery of the motor fuel if the destination state shown on the shipping document for the motor fuel is a state other than West Virginia: Provided, That delivery may be accepted if the destination state is other than West Virginia if the document contains a diversion number authorized by the commissioner. The person to whom the motor fuel is delivered shall examine the shipping document to determine that West Virginia is the destination state and shall retain a copy of the shipping document: (1) At the place of business where the motor fuel was delivered for ninety days following the date of delivery; and (2) at the place or another place for at least three years following the date of delivery. The person who accepts delivery of motor fuel in violation of this subsection and any person liable for the tax on the motor fuel pursuant to section five of this article is jointly and severally liable for any tax due on the motor fuel.
(f) Any person who transports motor fuel in a barge, watercraft, railroad tank car or transport vehicle without a shipping document or with a false or an incomplete shipping document, or delivers motor fuel to a destination state other than the destination state shown on the shipping document, is subject to the following civil penalty.
(1) If the motor fuel is transported in a barge, watercraft or transport vehicle, the civil penalty shall be payable by the person in whose name the means of conveyance is registered.
(2) If the motor fuel is transported in a railroad tank car, the civil penalty shall be payable by the person responsible for shipping the motor fuel in the railroad tank car.
(3) The amount of the civil penalty for a first violation is five thousand dollars.
(4) The amount of the civil penalty for each subsequent violation is ten thousand dollars.
(5) Civil penalties prescribed under this section are assessed, collected and paid in the same manner as the motor fuel excise tax imposed by this article.
(b) An importer who does not obtain an import confirmation number when required by this section is subject to the following civil penalty.
(1) For the first violation, the amount is five thousand dollars.
(2) For each subsequent violation the amount is ten thousand dollars.
(c) The civil penalty is payable by the person in whose name the transport vehicle is registered.
(d) Civil penalties prescribed under this section are assessed, collected and paid in the same manner as the motor fuel excise tax imposed by this article.
(1) Sells or stores any dyed diesel fuel for use in a highway vehicle that is licensed or required to be licensed as such, unless that use is allowed under the authority of 26 U.S.C. §4082;
(2) Willfully alters or attempts to alter the strength or composition of any dye or marker in any dyed diesel fuel;
(3) Uses dyed diesel fuel in a highway vehicle unless that use is allowed under the authority of 26 U.S.C. §4082;
(4) Acquires, sells or stores any motor fuel for use in a watercraft, aircraft, or highway vehicle that is licensed or required to be licensed unless the tax levied by section five of this article has been paid; or
(5) Uses any motor fuel in a watercraft, aircraft, or highway vehicle that is licensed or required to be licensed unless the tax levied by section five of this article has been paid.
(b) The amount of the civil penalty for the first two violations of this section in a calendar year, as described in subsection (a) of this section, is ten dollars per gallon of motor fuel based upon the maximum capacity of the motor fuel storage tank, container or storage tank of the highway vehicle, watercraft or aircraft in which the motor fuel is found or one thousand dollars, whichever is greater: Provided, That for each subsequent violation in the same calendar year, the penalty is fifteen dollars per gallon based upon the maximum capacity of the motor fuel storage tank, container or storage tank of the highway vehicle, watercraft or aircraft in which the motor fuel is found or two thousand dollars, whichever is greater.
(c) Each violation is subject to a separate civil penalty.
(d) Civil penalties prescribed under this section shall be assessed, collected and paid in the same manner as the motor fuel tax.
(b) Civil penalties prescribed under this section shall be assessed, collected and paid in the same manner as the motor fuel tax.
(1) For the first violation the amount is five thousand dollars.
(2) For each subsequent violation the amount is ten thousand dollars.
(b) Civil penalties prescribed under this section shall be assessed, collected and paid in the same manner as the motor fuel tax.
(1) For the first violation the amount is five thousand dollars.
(2) For each subsequent violation the amount is ten thousand dollars.
(b) Civil penalties prescribed under this section shall be assessed, collected and paid in the same manner as the motor fuel tax.
(b) Any person liable for a tax levied under this article who fails to file, even if no tax is due, within thirty days after it is due any return required by this article is subject to a civil penalty of fifty dollars for each month, or part thereof, the return is not filed. The civil penalty is in addition to the amount of tax not correctly returned.
(c) Any person required to file a return under this article who fails to file within thirty days after it is due is subject to a civil penalty of fifty dollars for each month, or part thereof, the return is not filed.
(d) Civil penalties prescribed under this section shall be assessed, collected and paid in the same manner as the motor fuel tax.
(1) Fails to obtain a license required by this article prior to performing an act for which the license is required;
(2) Fails to pay to this state no more than thirty days after the date the tax is due the tax levied by this article;
(3) Makes a false statement in an application, return, ticket, invoice, statement, or any other document required under this article;
(4) Fails to file no more than thirty days after it is due any return required by this article;
(5) Fails to maintain any record required by this article;
(6) Makes a false statement in an application for a refund;
(7) Refuses to allow the commissioner to examine the person's books and records concerning motor fuel;
(8) Fails to make a required disclosure of the correct amount of fuel sold or used in this state;
(9) Fails to file a replacement or additional cash bond or continuous surety bond as required under this article;
(10) Fails to show or give a shipping document as required under this article;
(11) Refuses to allow a licensed distributor, licensed exporter, or licensed importer to defer payment of tax to the licensed supplier or permissive supplier, as required by section twenty of this article;
(12) Uses, delivers, or sells any aviation fuel for use or intended for use in highway vehicles or watercraft;
(13) Interferes with or refuses to permit seizures authorized under section forty-two of this article;
(14) Delivers motor fuel from a transport vehicle to the fuel supply tank of a highway vehicle;
(15) Dispenses into the supply tank of a highway vehicle, watercraft or aircraft any motor fuel on which tax levied by section five of this article has not been paid;
(16) Allows to be dispensed into the supply tank of a highway vehicle, watercraft or aircraft any motor fuel on which tax levied by section five of this article has not been paid;
(17) Purchases motor fuel from an unlicensed distributor, unlicensed importer or unlicensed supplier; or
(18) Uses twenty-five or less gallons of dyed diesel fuel for a use that the user knows or has reason to know is a taxable use of the motor fuel, or sells twenty-five or less gallons of dyed diesel fuel to a person who the seller knows or has reason to know will use the motor fuel for a taxable purpose.
(b) Any person who willfully commits any of the following offenses with the intent either to evade or circumvent the tax levied by section five of this article or to assist any other person in efforts to evade or circumvent the tax levied by section five of this article is guilty of a felony, and upon conviction thereof, shall be fined not less than twenty-five thousand dollars nor more than fifty thousand dollars, or imprisoned in a state correctional facility not less than one nor more than five years, or both fined and imprisoned:
(1) Alters, manipulates, replaces, or in any other manner tampers or interferes with, or causes to be altered, manipulated, replaced, tampered or interfered with, a totalizer attached to motor fuel pumps to measure the dispensing of motor fuel;
(2) Fails to pay motor fuels taxes and diverts the tax proceeds for other purposes;
(3) As a licensee or the agent or representative of a licensee, converts or attempts to convert motor fuel tax proceeds for the use of the licensee or the licensee's agent or representative, with the intent to defraud this state;
(4) Collects motor fuel taxes when not authorized or licensed by the commissioner to do so;
(5) Imports motor fuel into this state in contravention of this article;
(6) Conspires with any other person or persons to engage in an act, plan, or scheme to defraud this state of motor fuels tax proceeds;
(7) Uses in excess of twenty-five gallons of any dyed diesel fuel for a use that the user knows or has reason to know is a taxable use of the motor fuel, or sells in excess of twenty-five gallons of any dyed diesel fuel to a person who the seller knows or has reason to know will use the motor fuel for a taxable purpose;
(8) Alters or attempts to alter the strength or composition of any dye or marker in any dyed diesel fuel intended to be used for a taxable purpose; or
(9) Fails to remit to the commissioner any tax levied pursuant to this article, if the person has added, or represented that he or she has added, the tax to the sales price for the motor fuel and has collected the amount of the tax.
(c) Each offense is subject to a separate criminal penalty.
(b) If the assessment for the tax is not paid within thirty days, the commissioner is hereby authorized, in addition to the other remedies authorized in this article, to sell the motor fuel and use the proceeds of the sale to satisfy the assessment due, with any funds that exceed the assessment and costs of the sale being returned to the owner of the motor fuel: Provided, That the sale of seized property be conducted in accordance with the requirements established in article ten of this chapter.
(c) All motor fuel and any property, tangible or intangible, which is found upon the person or in any vehicle which the person is using, including the vehicle itself, to aid the person in the transportation or sale of illegally transported, delivered, stored, sold, imported or acquired motor fuel, and any property found in the immediate vicinity of any place where the illegally transported, delivered, stored, sold, imported or acquired motor fuel is located, including motor vehicles, tanks, and other storage devices, used to aid in the illegal transportation or sale of motor fuel, is considered contraband and shall be forfeited to this state.
(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.
(b) If a person required to maintain records is open for business during hours which the commissioner may not consider usual business hours, the commissioner may examine the person's books and records during the person's normal business hours, which are those hours when the person is open for business at any of the person's places of business. If the person does not maintain the books and records on the premises, the commissioner may inspect the books and records where they are maintained, irrespective of the working hours at the location, as long as one of the person's places of business maintains hours at the time of day during which the commissioner asserts his or her inspection powers.
(c) While performing inspections authorized by section forty-five of this article, the commissioner may also inspect the books and records kept to determine any motor fuel tax liability under this article.
(b) Inspections may be conducted at any place where taxable motor fuel or motor fuel dyes or markers are, or may be, produced, altered, or stored, or at any site where evidence of production, alteration, or storage is discovered.
(c) The commissioner may physically inspect, examine, and otherwise search any tank, reservoir, or other container that can or may be used for the production, storage, or transportation of motor fuel, motor fuel dyes or markers. Inspection may also be made of any equipment used for, or in connection with, the production, storage, or transportation of motor fuel, motor fuel dyes or markers, including equipment used for the dyeing or marking of motor fuel.
(d) The commissioner may stop, inspect and issue citations to operators of motor vehicles for violations of this article at sites where motor fuel is, or may be, produced, stored, or loaded into or consumed by motor vehicles. The commissioner may enter into agreements with other agencies of this state to provide assistance in stopping and inspecting motor vehicles for violations of this article.
(e) Inspections may occur at any terminal, motor fuel storage facility that is not a terminal, retail motor fuel facility, highway rest stop, and designated inspection site.
(f) The commissioner may, on the premises or at a designated inspection site, take and remove samples of motor fuel in reasonable quantities as necessary to determine the composition of the motor fuel.
(g) Nothing contained in this section is construed to prohibit the issuance of a citation for the violation of the provisions of this article on the open highway or other than the spot check areas where the violation of this article is discovered when the motor vehicle is lawfully stopped for any other criminal violation of the laws of this state.
(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.
(b) All remaining tax collected under the provisions of this article after deducting the amount of any refunds lawfully paid shall be paid into the state road fund and used only for the purpose of construction, reconstruction, maintenance and repair of highways, matching of federal moneys available for highway purposes and payment of the interest and sinking fund obligations on state bonds issued for highway purposes.
(c) Not less than monthly, beginning the first day of July, two thousand seven, the Commissioner of Highways shall report to the Joint Committee on Government and Finance or its designated subcommittee on the amount of tax paid into the state road fund under subsection (b) of this section, any matching federal funds, and all expenditures therefrom.
Note: WV Code updated with legislation passed through the 2012 1st Special Session
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