WEST virginia Legislature
2017 regular session
By
[
to the Committee on Roads and Transportation then Finance.
A BILL amend and reenact §11-14-2
and §11-14-11 of the Code of West Virginia, 1931, as amended, all relating to
gasoline and fuel excise tax; requiring a refund of gasoline or fuel excise tax
when fuel is consumed by a commercial vehicle while that vehicle is not
operated upon the highways of this state.
Be it enacted by the
Legislature of West Virginia:
That §11-14-2 and §11-14-11
of the Code of West Virginia, 1931, as amended, be amended and reenacted, all
to read as follows:
ARTICLE 14. GASOLINE AND SPECIAL FUEL EXCISE TAX.
§11-14-2. Definitions.
For purposes of this
article:
(1) "Actual metered
gallons" means, in addition to amounts computed by mechanical devices
which measure and record directly in digital terms, all amounts computed by
other methods of computing quantities commonly employed by persons engaged in
the sale of petroleum products, including, but not limited to, tank or barge
strappings and other graduated lineal devices.
(2) "Aircraft
fuel" means gasoline and special fuel suitable for use in any aircraft
engine.
(3) "Commercial
vehicle" means any vehicle operated to provide a service or carry goods
for charge or other consideration, or directly or indirectly in connection with
any business, or other undertaking intended for profit.
(3) (4)"Commissioner" or "Tax
Commissioner" means the Tax Commissioner of the State of West Virginia or
his or her duly authorized agent.
(4) (5)"Distributor" or
"producer" means and includes every person:
(a) Who produces,
manufactures, processes or otherwise alters gasoline or special fuel in this
state for use or for sale;
(b) Who engages in this
state in the sale of gasoline or special fuel for the purpose of resale or for
distribution; or
(c) Who receives
gasoline or special fuel into the cargo tank of a tank wagon in this state for
use or sale by such person.
(5) (6) "Gallon" means two hundred
thirty-one cubic inches of liquid measurement, by volume: Provided,
That the commissioner may by rule prescribe other measurement or definition of
gallon.
(6) (7) "Gasoline" means any product
commonly or commercially known as gasoline, regardless of classification,
suitable for use as fuel in an internal combustion engine, except special fuel
as defined in this section.
(7) (8) "Highway" means every way or
place of whatever nature open to the use of the public as a matter of right for
the purpose of vehicular travel, which is maintained by this state or some
taxing subdivision or unit of this state or the federal government or any of
its agencies.
(8) (9) "Importer" means every person,
resident or nonresident, other than a distributor, who receives gasoline or
special fuel outside this state for use, sale or consumption within this state,
but shall not include the fuel in the supply tank of a motor vehicle, or a
person paying the motor carrier road tax as provided for in article fourteen-a
of this chapter.
(9) (10) "Motor carrier" means any
passenger vehicle which has seats for more than nine passengers in addition to
the driver, or any road tractor, or any tractor truck or any truck having more
than two axles which is operated or caused to be operated by any person on any
highway in this state.
(10) (11) "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 gasoline or special fuel.
(11) (12) "Person" means and includes any
individual, firm, partnership, limited partnership, joint venture, association,
company, corporation, organization, syndicate, receiver, trust or any other
group or combination acting as a unit, in the plural as well as the singular
number, and means and includes the officers, directors, trustees or members of
any firm, partnership, limited partnership, joint venture, association,
company, corporation, organization, syndicate, receiver, trust or any other
group or combination acting as a unit, in the plural as well as the singular
number, unless the intention to give a more limited meaning is disclosed by the
context.
(12) (13) "Petroleum carrier" means any
person who hauls or transports gasoline or special fuel within this state or on
any navigable rivers which are within the jurisdiction of this state.
(13) (14) "Purchase" means and includes
any acquisition of ownership of property or of a security interest for a
consideration.
(14) (15) "Receive" means any acquisition
of ownership or possession of gasoline or special fuel.
(15) (16) "Retail dealer" means any
person not a distributor or producer who sells gasoline or special fuel from a
fixed location in this state to users.
(16) (17) "Sale" means any transfer,
exchange, gift, barter or other disposition of any property or security interest
for a consideration.
(17) (18) "Special fuel" means any gas or
liquid, other than gasoline, used or suitable for use as fuel in an internal
combustion engine. The term
"special fuel" includes products commonly known as natural or casing
head gasoline, but shall not include any petroleum product or chemical compound
such as alcohol, industrial solvent, heavy furnace oil, lubricant, etc., not
commonly used nor practicably suited for use as fuel in an internal combustion
engine.
(18) (19) "Special dyed diesel fuel"
means diesel fuel that is required to be dyed under United States Environmental
Protection Agency rules for high sulphur diesel fuel or is dyed under Internal
Revenue Service rules for low sulphur fuel or pursuant to any other
requirements subsequently set by the United States Environmental Protection
Agency or Internal Revenue Service including any invisible marker requirements
that is sold for the exclusive use or consumption in off-highway equipment and
is exempt from excise taxation under federal law.
(19) (20) "Supply tank" means any
receptacle on a motor vehicle from which gasoline or special fuel is supplied
for the propulsion of the vehicle or equipment located thereon, exclusive of a
cargo tank. A supply tank includes a
separate compartment of a cargo tank used as a supply tank, and any auxiliary
tank or receptacle of any kind from which gasoline or special fuel is supplied
for the propulsion of the vehicle, whether or not the tank or receptacle is
directly connected to the fuel supply line of the vehicle.
(20) (21) "Tank wagon" means and includes
any motor vehicle or vessel with a cargo tank or cargo tanks ordinarily used
for making deliveries of gasoline or special fuel or both for sale or use.
(21) (22) "Tax" includes, within its
meaning, interest, additions to tax and penalties, unless the intention to give
it a more limited meaning is disclosed by the context.
(22) (23) "Taxpayer" means any person
liable for any tax, interest, additions to tax or penalty under the provisions
of this article.
(23) (24) "User" means any person who
purchases gasoline or special fuel for use as fuel and uses the fuel in an
internal combustion engine owned or operated by that person.
§11-14-11. Refund of tax because of certain commercial
nonhighway uses; statute of limitations and effective date.
(a) The tax imposed by this
article shall be refunded to any person who shall buy in quantities of
twenty-five gallons or more, at any one time, tax-paid gasoline or special
fuel, when consumed for the following purposes by a commercial
vehicle while that vehicle is not operated upon the highways of this state,
including, but not limited to, gasoline or fuel used for the following
purposes:
(1) As a special fuel
for internal combustion engines not operated upon highways of this state; or
(2) Gasoline consumed
to operate tractors and gas engines or threshing machines for agricultural
purposes, when such operation is not, in whole or in part, upon the highways of
this state; or
(3) Gasoline used by
any railway company, subject to regulation by the Public Service Commission of
West Virginia, for any purpose other than upon the highways of this state; or
(4) Gasoline consumed
in the business of manufacturing or producing natural resources or in mining or
drilling therefor, or in the transportation of natural resources solely by
means of unlicensed vehicles or vehicles licensed under the motor vehicle laws
of this state, either as a motor fuel or for any other purpose and which
gasoline is not in any part used upon the highways of this state; or
(5) Gasoline consumed
in motorboats or other watercraft operated upon the navigable waters of this
state; or
(6) Gasoline or special
fuel used to power a power take-off unit on a motor vehicle, when a motor vehicle with auxiliary equipment
uses fuel and there is no auxiliary motor for such equipment or separate tank
for such a motor the person claiming the refund may present to the Tax
Commissioner a statement of his or her claim and shall be allowed a refund for
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 imposed by this article paid on
all fuel used in such a truck and which gasoline is not in any part used
by the vehicle upon the highways of this state.
(b) Such tax shall be
refunded upon presentation to the commissioner of an affidavit accompanied by
the original or top copy sales slips or invoices, or certified copies thereof,
from the distributor or producer or retail dealer, showing such purchases, together
with evidence of payment thereof, which affidavit shall set forth the total
amount of such gasoline or special fuel purchased and consumed by such user,
other than upon any highways of this state, and how used; and the Tax
Commissioner upon the receipt of such affidavit and such paid sales slips or
invoices shall cause to be refunded such tax paid on gasoline or special fuel
purchased and consumed as aforesaid.
(c) The right to
receive any refund under the provisions of this section shall not be assignable
and any assignment thereof shall be void and of no effect, nor shall any
payment be made to any person other than the original person entitled thereto
using gasoline or special fuel as hereinbefore in this section set forth. The Tax Commissioner shall cause a refund to
be made under the authority of this section only when the claim for such refund
is filed with the Tax Commissioner, upon forms prescribed by the Tax
Commissioner, within six months from the month of purchase or delivery of the
gasoline or special fuel, except that any application for refund made under
authority of subdivision (2) above shall be filed within twelve months from the
month of purchase or delivery of such gasoline or special fuel. Any claim for a refund not timely filed shall
not be construed to be or constitute a moral obligation of the State of West
Virginia for payment. Such claim for
refund shall also be subject to the provisions of section fourteen, article ten
of this chapter.
(d) Effective date. --
The provisions of this section as hereby amended shall apply to all gasoline
and special fuels purchased or delivered on or after July 1, 1986, and the
provisions of this section in effect prior to July 1, shall apply to gasoline
and special fuels purchased or delivered prior to July 1, 1986.
NOTE: The purpose of this bill is
to require a refund of gasoline or fuel excise tax when fuel is consumed by a
commercial vehicle while that vehicle is not operated upon the highways of this
state.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.