78R12080 E
By: Krusee H.B. No. 2458
Substitute the following for H.B. No. 2458:
By: Hilderbran C.S.H.B. No. 2458
A BILL TO BE ENTITLED
AN ACT
relating to the collection of the motor fuel taxes; providing
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle E, Title 2, Tax Code, is amended by
adding Chapter 162 to read as follows:
CHAPTER 162. MOTOR FUEL TAXES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 162.001. DEFINITIONS. As used in this chapter and
unless the context requires otherwise, the following terms shall
have the meaning ascribed herein:
(1) "Agricultural purpose" means a purpose associated
with the following activities:
(A) cultivating the soil;
(B) producing crops for human food, animal feed,
or planting seed or for the production of fibers;
(C) floriculture, viticulture, silviculture, and
horticulture, including the cultivation of plants in containers or
nonsoil media;
(D) raising, feeding, or keeping livestock or
other animals for the production of food or fiber, leather, pelts,
or other tangible products having a commercial value;
(E) wildlife management; and
(F) planting cover crops, including cover crops
cultivated for transplantation, or leaving land idle for the
purpose of participating in any governmental program or normal crop
or livestock rotation procedure.
(2) "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 98 percent ethanol or
methanol by volume.
(3) "Aviation fuel dealer" means a person who:
(A) is the operator of an aircraft servicing
facility;
(B) delivers gasoline or diesel fuel exclusively
into the fuel supply tanks of aircraft or into equipment used solely
for servicing aircraft and used exclusively off-highway; and
(C) does not use, sell, or distribute gasoline or
diesel fuel on which a fuel tax is required to be collected or paid
to this state.
(4) "Aviation fuel" means aviation gasoline or
aviation jet fuel.
(5) "Aviation gasoline" means motor fuel designed for
use in the operation of aircraft other than jet aircraft, and sold
or used for that purpose.
(6) "Aviation jet fuel" means motor fuel designed for
use in the operation of jet or turboprop aircraft, and sold or used
for that purpose.
(7) "Biodiesel fuel" means any motor fuel or mixture
of motor fuels that is derived, in whole or in part, from
agricultural products, vegetable oils, recycled greases 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.
(8) "Blender" means a person who produces blended
motor fuel outside the bulk transfer/terminal system.
(9) "Blending" means the mixing of one or more
petroleum products with 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. Blending does not include mixing
that occurs in the process of refining by the original refiner of
crude petroleum or the commingling of products during
transportation in a pipeline.
(10) "Bulk plant" means a motor fuel storage and
distribution facility that is not an IRS-approved terminal and from
which motor fuel may be removed at a rack.
(11) "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.
(12) "Bulk user" means a person who maintains storage
facilities for motor fuel and uses all or part of the stored motor
fuel to operate a motor vehicle, vessel, or aircraft and other uses.
(13) "Bulk transfer/terminal system" means the motor
fuel distribution system consisting of refineries, pipelines,
marine vessels, and IRS-approved 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, railcar, trailer,
truck, or other equipment suitable for ground transportation is not
in the bulk transfer/terminal system.
(14) "Cargo tank" means an assembly that is used for
transporting, hauling, or delivering liquids and that consists of a
tank having one or more compartments mounted on a wagon,
automobile, truck, trailer, or wheels, and includes accessory
piping, valves, and meters, but does not include a fuel supply tank
connected to the carburetor or fuel injector of a motor vehicle.
(15) "Carrier" means any operator of a pipeline or
marine vessel engaged in the business of transporting motor fuel
above the terminal rack.
(16) "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.
(17) "Dealer" means a person who sells motor fuel at
retail or dispenses motor fuel at a retail location.
(18) "Designated inspection site" means any state
highway inspection station, weigh station, agricultural inspection
station, mobile station, or other location designated by the
comptroller to be used as a motor fuel inspection site.
(19) "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.
(20) "Diesel fuel" means kerosene or another liquid,
or a combination of liquids blended together, which is suitable for
or used for the propulsion of diesel-powered motor vehicles. The
term includes products commonly referred to as kerosene, light
cycle oil, #1 diesel fuel, #2 diesel fuel, dyed or undyed diesel
fuel, aviation jet fuel, biodiesel, distillate fuel, cutter stock,
or heating oil, but shall not include gasoline, aviation gasoline
or liquefied gas.
(21) "Distributor" means a person who acquires motor
fuel from a licensed supplier, permissive supplier, or another
licensed distributor and who may resell motor fuel either at the
wholesale level or retail level of distribution.
(22) "Diversion number" means the number assigned by
the comptroller, or by a person to whom the comptroller delegates or
appoints the authority to assign the number, that relates to a
single cargo tank delivery of motor fuel that is diverted from the
original destination state printed on the shipping document.
(23) "Dyed diesel fuel" means diesel fuel that meets
the dyeing and marking requirements of 26 U.S.C. Section 4082,
regardless of how the diesel fuel was dyed. The intended use of the
dyed fuel is off-highway use only.
(24) "Export" means to obtain motor fuel in Texas for
sale or use in another state, territory, or foreign country.
(25) "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.
(26) "Fuel grade ethanol" means the ASTM standard in
effect on the effective date of this chapter as the D-4806
specification for denatured motor fuel grade ethanol for blending
with motor fuel.
(27) "Fuel supply tank" means any receptacle on a
motor vehicle, nonhighway equipment, or a stationary engine from
which motor fuel is supplied for the operation of its engine.
(28) "Gallon" means a unit of liquid measure as
customarily used in the United States containing 231 cubic inches
by volume.
(29) "Gasohol" means a blended motor fuel composed of
gasoline and motor fuel alcohol.
(30) "Gasoline" means any liquid or combination of
liquids blended together, offered for sale, sold, or used as the
fuel for a gasoline-powered engine, including gasohol, aviation
gasoline, and blending agents, but does not include racing
gasoline, diesel fuel, aviation jet fuel, or liquefied gas.
(31) "Gasoline blend stocks" includes any petroleum
product component of gasoline, such as naphtha, reformate, or
toluene, listed in Treas. Reg. Section 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 55 gallons or
less at the time of the removal or sale.
(32) "Gasoline blended fuel" means a mixture composed
of gasoline and other liquids, including, but not limited to,
gasoline blend stocks, gasohol, ethanol, methanol, fuel grade
alcohol, and resulting blends, other than a de minimus amount of a
product such as carburetor detergent or oxidation inhibitor, that
can be used as gasoline in a motor vehicle.
(33) "Gross gallons" means the total measured product,
exclusive of any temperature or pressure adjustments,
considerations, or deductions, in U.S. gallons.
(34) "Governmental entity" means the United States or
its comptroller, agencies, and instrumentalities, but does not
include state and local government or their agencies.
(35) "Kerosene bulk delivery" means a delivery of a
quantity of kerosene in excess of five gallons, but does not include
a delivery into the fuel supply tanks of a motor vehicle.
(36) "Public 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.
(37) "Motor vehicle" means any self-propelled
vehicle, trailer, or semitrailer that is designed or used for
transporting persons or property over the public highway.
(38) "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.
(39) "Import verification number" means the number
assigned by the comptroller, or by a person to whom the comptroller
delegates or appoints the authority to assign the number, that
relates to a single cargo tank delivery into this state from another
state after a request for an assigned number by an importer or by
the motor fuel transporter carrying taxable motor fuel into this
state for the account of an importer.
(40) "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.
(41) "Interstate trucker" means a person who for
commercial purposes operates in this state, other states, or other
countries a motor vehicle that:
(A) has two axles and a registered gross weight
in excess of 26,000 pounds;
(B) has three or more axles; or
(C) is used in combination and the registered
gross weight of the combination exceeds 26,000 pounds.
(42) "Lessor" means a person:
(A) whose principal business is the leasing or
renting of motor vehicles for compensation to the general public;
(B) who maintains established places of
business; and
(C) whose lease or rental contracts require the
motor vehicles to be returned to the established places of business
at the termination of the lease.
(43) "Licensee" means any person licensed by the
comptroller pursuant to Section 162.106 and 162.206.
(44) "Liquefied gas" means all combustible gases that
exist in the gaseous state at 60 degrees Fahrenheit and at a
pressure of 14.7 pounds per square inch absolute, but does not
include gasoline or diesel fuel.
(45) "Liquefied gas tax decal user" means a person who
owns or operates on the public highways of this state a motor
vehicle capable of using liquefied gas for propulsion.
(46) "Motor carrier" means a person who operates any
commercial vehicle used, designated, or maintained for the
transportation of persons or property.
(47) "Motor fuel" means gasoline, diesel fuel,
liquefied gas, and other products that are usable as propellants of
a motor vehicle.
(48) "Motor fuel transporter" means a person who
transports gasoline, diesel, or gasoline blended fuel outside the
bulk transfer/terminal system by means of a transport vehicle, a
railroad tank car, or a marine vessel.
(49) "Net gallons" means the amount of motor fuel
measured in gallons when adjusted to a temperature of 60 degrees
Fahrenheit and a pressure of 14.7 pounds per square inch.
(50) "Permissive supplier" is a person who elects, but
is not required, to have a supplier's license and who meets both of
the following requirements:
(A) is registered under Section 4101, Internal
Revenue Code, for transactions in motor fuel in the bulk
transfer/terminal system; and
(B) is 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.
(51) "Person" means any individual; firm;
cooperative; association; corporation; limited liability
corporation; trust; business trust; syndicate; partnership;
limited liability partnership; joint venture; receiver; trustee in
bankruptcy; club, society, or other group or combination acting as
a unit; or public body, including, but not limited to, this state,
any other state, and any agency, commissioner, institution,
political subdivision, or instrumentality of this state or any
other state.
(52) "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.
(53) "Racing gasoline" means gasoline that contains
lead, has an octane rating of 110 or higher, does not have detergent
additives, and is not suitable for use as a motor fuel in a highway
vehicle.
(54) "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.
(55) "Railroad locomotive" means any diesel-powered
equipment or machinery that rides on railroad rails, and includes a
switching engine.
(56) "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.
(57) "Registered gross weight" or "RGW" means the
total weight of the vehicle and carrying capacity shown on the
registration certificate issued by the Texas Department of
Transportation.
(58) "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.
(59) "Sale" means a transfer of title, exchange, or
barter of motor fuel, but does not include transfer of possession of
motor fuel on consignment.
(60) "Shipping document" means a delivery document
issued by a terminal or bulk plant operator in conjunction with the
sale, transfer, or removal of motor fuel from the terminal or bulk
plant.
(61) "State" or "this state" means the State of Texas.
(62) "Solid waste refuse vehicle" means a motor
vehicle equipped with a power take-off or auxiliary power unit
which provides power to compact the refuse, open the back of the
container prior to ejection, and eject the compacted refuse.
(63) "Supplier" means a person that is:
(A) subject to the general taxing jurisdiction of
this state;
(B) registered under Section 4101, Internal
Revenue Code, for transactions in motor fuel in the bulk
transfer/terminal distribution system, and is 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;
(C) 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.
(64) "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.
(65) "Terminal operator" means a person who owns,
operates, or otherwise controls a terminal.
(66) "Transit company" means a business that:
(A) transports in a political subdivision
persons in carriers designed for 12 or more passengers;
(B) holds a franchise from a political
subdivision, and has its rates regulated by the subdivision or is
owned or operated by the political subdivision.
(67) "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.
(68) "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.
Sec. 162.002. TAX LIABILITY ON LEASED VEHICLES. (a) A user
or interstate trucker is liable for the tax on motor fuel imported
into this state in fuel supply tanks of leased motor vehicles and
used on the Texas highways to the same extent and in the same manner
as motor fuel imported in the user's or interstate trucker's own
motor vehicles and used on the public highways of Texas, unless the
person who owns the leased motor vehicles is liable under
Subsection (b). If the owner of the leased motor vehicles is
liable, then the user or interstate trucker may exclude the leased
motor vehicles from its return.
(b) A person who, in the regular course of business and for
consideration, leases motor vehicles and equipment to motor
carriers or others for interstate operation may be deemed to be the
user or interstate trucker under this chapter if the person
supplies or pays for the motor fuel consumed in those leased motor
vehicles or equipment. Such a person may be issued a license as an
interstate trucker by the comptroller. An application for an
interstate trucker license may be accompanied by one copy of the
form-lease or service contract entered into with various lessees.
Upon receipt of the interstate trucker license, the person may
assign to each motor vehicle leased for interstate operation a
photocopy of the license to be carried in the cab compartment of the
motor vehicle. The photocopy of the license must have typed or
printed on the back the unit or motor number of the motor vehicle to
which it is assigned and the name of the lessee. The lessor is
responsible for the proper use of the photocopy of the license
issued to the lessor and for its return with the motor vehicle to
which it is assigned.
Sec. 162.003. COOPERATIVE AGREEMENTS WITH OTHER STATES.
(a) The comptroller may enter into a cooperative agreement with
another state for the exchange of information and auditing of users
of motor fuel used in fleets of motor vehicles operated or intended
for operation interstate. An agreement or amendment of an
agreement takes effect according to its terms, except that an
agreement or amendment may not take effect until the proposed
agreement or amendment is published in the Texas Register.
(b) An agreement may provide for: determining the base state
for motor fuel users, user records requirements, audit procedures,
exchange of information, persons eligible for tax licensing,
licensing and license revocation procedures, permits, penalties,
and fees, defining qualified motor vehicles, determining bonding
procedures, types, and amounts, specifying reporting requirements
and periods, defining refund procedures and limitations, including
the payment of interest, defining uniform penalties, fees, and
interest rates, determining methods for collecting motor fuel taxes
and for collecting and forwarding motor fuel taxes, other than
penalties, due to another jurisdiction, the temporary remittal of
funds equal to the amount of the taxes and interest due to another
jurisdiction but not otherwise collected, subject to appropriation
of funds for that purpose, and other provisions to facilitate the
administration of the agreement.
(c) The comptroller may, as required by the terms of an
agreement, forward to an officer of another state any information
in the comptroller's possession relating to the manufacture,
receipts, sale, use, transportation, or shipment of motor fuel by
any person. The comptroller may disclose to an officer of another
state the location of officers, motor vehicles, and other real and
personal property of users of motor fuel.
(d) An agreement may provide for each state to audit the
records of a person based in the state to determine if the motor
fuel taxes due each state that is a party to the agreement are
properly reported and paid. An agreement may provide for each state
to forward the findings of an audit performed on a person based in
the state to each other state in which the person has taxable use of
motor fuel. For a person who is not based in this state and who has
taxable use of motor fuel in this state, the comptroller may use an
audit performed by another state that is a party to an agreement
with this state to make an assessment of motor fuel taxes against
the person.
(e) Any agreement entered into under this section does not
affect the authority of the comptroller to audit any person under
any other law.
(f) An agreement entered into under this section prevails
over an inconsistent rule of the comptroller. Except as otherwise
provided by this section, a statute of this state prevails over an
inconsistent provision of an agreement entered into under this
section.
(g) The comptroller may segregate in a separate fund or
account the amount of motor fuel taxes, other than penalties,
estimated to be due to other jurisdictions, motor fuel taxes
subject to refund during the fiscal year, licensing fees, and other
costs collected under the agreement. On a determination of an
amount held that is due to be remitted to another jurisdiction, the
comptroller may issue a warrant or make an electronic transfer of
the amount as necessary to carry out the purposes of the agreement.
An auditing cost, membership fee, and other cost associated with
the agreement may be paid from interest earned on funds segregated
under this subsection. Any interest earnings in excess of the costs
associated with the agreement shall be credited to general revenue.
(h) The legislature finds that it is in the public interest
to enter into motor fuel tax agreements with other jurisdictions
that may provide for the temporary remittal of amounts due other
jurisdictions that exceed the amounts collected. The comptroller
shall ensure that reasonable measures are developed to recover
motor fuel taxes and other amounts due this state during each
biennium.
Sec. 162.004. MOTOR FUEL TRANSPORTATION: REQUIRED
DOCUMENTS. (a) A person shall not transport in this state any
motor fuel by barge, vessel, railroad tank car, or transport
vehicle unless the person has a shipping document for the motor fuel
that complies with this section. A terminal operator or operator of
a bulk plant shall give a shipping document to the person who
operates the barge, vessel, railroad tank car, or transport vehicle
into which motor fuel is loaded at the terminal rack or bulk plant
rack.
(b) The shipping document issued by the terminal operator or
operator of a bulk plant shall be machine-printed and shall contain
the following information and any other information required by the
comptroller:
(1) the terminal control number of the terminal or
bulk plant from which the motor fuel was received;
(2) name and license number of purchaser;
(3) date the motor fuel was loaded;
(4) net gallons loaded, or gross gallons if the fuel
was purchased from a bulk plant;
(5) destination state of the motor fuel, as
represented by the purchaser of the motor fuel or the purchaser's
agent;
(6) description of product being transported
(c) In the event of an extraordinary circumstance,
including an act of God, that temporarily interferes with the
ability to issue an automated machine-generated shipping document,
a manually prepared shipping document that contains all of the
information required by Subsection (b) shall be substituted for the
machine-generated shipping document.
(d) A terminal operator or bulk plant operator may rely on
the representation made by the purchaser of motor fuel or the
purchaser's agent concerning the destination state of the motor
fuel. A purchaser shall be liable for any tax due as a result of the
purchaser's diversion of motor fuel from the represented
destination state.
(e) A person to whom a shipping document was issued shall:
(1) carry the shipping document in the means of
conveyance for which it was issued when transporting the motor fuel
described;
(2) show the shipping document upon request to any law
enforcement officer, representative of the comptroller, 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 comptroller and the destination
state, if a diversion program is in place, 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 comptroller and
destination state, if a diversion program is in place, a
confirmation number authorizing the diversion; and
(C) writes on the shipping document the change in
destination state and the confirmation numbers for the diversion;
and
(4) give a copy of the shipping document to the person
to whom the motor fuel is delivered.
(5) The purchaser is responsible for paying the
applicable destination state taxes along with filing a refund with
the origin state. The supplier is not allowed to refund any taxes
due to the diversion of product.
(f) The person to whom motor fuel is delivered by barge,
vessel, 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 Texas,
provided that delivery may be accepted if the destination state is
other than Texas if the document contains a diversion number
authorized by the comptroller and destination state, if applicable.
The person to whom the motor fuel is delivered shall examine the
shipping document to determine that Texas is the destination state,
and shall retain a copy of the shipping document at such place or
another place for four years following the date of delivery.
Sec. 162.005. CANCELLATION OR REFUSAL OF LICENSE. (a) The
comptroller may cancel or refuse to issue or reissue a motor fuel
license to any person who has violated or has failed to comply with
a provision of this chapter or a rule of the comptroller.
(b) Before a license may be canceled, or the issuance or
reissuance refused, the comptroller shall give the licensee or
license applicant not less than 10 days' notice of a hearing at the
office of the comptroller in Austin or at a specified comptroller's
field office, granting the licensee or applicant an opportunity to
show cause before the comptroller why the proposed action should
not be taken. If a license is in effect, the license remains in
force pending the determination of the show-cause hearing. Notice
must be in writing and may be mailed by United States registered
mail or certified mail to the licensee or applicant at last known
address, or may be delivered by the comptroller to the licensee or
applicant, and no other notice is necessary. In case of service by
mail of a notice required by this chapter, the service is complete
at the time of deposit in the United States Post Office.
(c) The comptroller may prescribe rules of procedure and
evidence for the hearings in accordance with Chapter 2001,
Government Code.
(d) If, after the hearing or the opportunity to be heard,
the license is canceled or the issuance or reissuance refused by the
comptroller, all taxes that have been collected or that have
accrued, although the taxes are not then due and payable to the
state, except by the provisions of this chapter, shall become due
and payable concurrently with the notice of cancellation of the
license. The licensee shall within five days make a report covering
the period of time not covered by preceding reports filed by the
licensee and ending with the date of cancellation, and shall remit
and pay to the comptroller all taxes that have been collected and
that have accrued from the sale, use, or distribution of motor fuel
in this state.
(e) The comptroller may revoke a license if the licensee
purchases motor fuel for export and subsequently diverts or causes
the motor fuel for which no tax was paid under this chapter to be
diverted to a destination in this state or to any destination other
than the originally designated state or country without first
obtaining a diversion number.
Sec. 162.006. SUMMARY SUSPENSION OF LICENSE. (a) The
comptroller may suspend a person's license without notice or a
hearing for the person's failure to comply with this chapter or a
rule adopted under this chapter if the person's continued operation
constitutes an immediate and substantial threat to the collection
of taxes imposed by this chapter and attributable to the person's
operation.
(b) If the comptroller summarily suspends a person's
license, proceedings for a preliminary hearing before the
comptroller or the comptroller's representative must be initiated
simultaneously with the summary suspension. The preliminary
hearing shall be set for a date not later than 10 days after the date
of the summary suspension, unless the parties agree to a later date.
(c) At the preliminary hearing, the license holder must show
cause why the license should not remain suspended pending a final
hearing on suspension or revocation.
(d) Chapter 2001, Government Code, does not apply to a
summary suspension under this section.
(e) To initiate a proceeding to suspend summarily a person's
license, the comptroller shall serve notice on the license holder
informing the license holder of the right to a preliminary hearing
before the comptroller or the comptroller's representative and of
the time and place of the preliminary hearing. The notice must be
personally served on the license holder or an officer, employee, or
agent of the license holder, or sent by certified or registered
mail, return receipt requested, to the license holder's mailing
address as it appears on the comptroller's records. The notice must
state the alleged violations that constitute the grounds for
summary suspension. The suspension is effective at the time the
notice is served. If the notice is served in person, the license
holder shall immediately surrender the license to the comptroller
or to the comptroller's representative. If notice is served by
mail, the license holder shall immediately return the license to
the comptroller.
(f) Section 153.005, governing hearings for license
cancellation or refusal to issue a license under this chapter,
governs a final administrative hearing under this section.
Sec. 162.007. ENFORCEMENT OF LICENSE CANCELLATION,
SUSPENSION, OR REFUSAL. (a) The comptroller may examine any books
and records incident to the conduct of the business of a person
whose license has been canceled or suspended on the person's
failure to file the reports required by this chapter or to remit all
taxes due. If necessary, the comptroller shall issue an audit
deficiency determination for any amount tax due. If the amount is
not paid on or before the 15th day after deficiency determination
becomes final, the bond or other security required under this
chapter shall be forfeited. The demand for payment shall be
addressed to both the surety or sureties and the person who owes the
delinquency.
(b) If the forfeiture of the bond or other security does not
satisfy the delinquency, the comptroller shall certify the taxes,
penalty, and interest delinquent to the attorney general, who may
file suit against the person or the person's surety, or both, to
collect the amount due. After being given notice of an order of
cancellation or summary suspension, it shall be unlawful for any
person to continue to operate the business under a canceled or
suspended license. The attorney general may file suit to enjoin the
person from operating under the canceled or suspended license until
the comptroller reissues a license.
(c) An appeal from an order of the comptroller canceling or
suspending or refusing the issuance or reissuance of a license may
be taken to a district court of Travis County by the aggrieved
licensee or applicant. The trial shall be de novo under the same
rules as ordinary civil suits, except that:
(1) an appeal must be perfected and filed within 30
days after the effective date of the order, decision, or ruling of
the comptroller;
(2) the trial of the case shall begin within 10 days
after its filing; and
(3) the order, decision, or ruling of the comptroller
may be suspended or modified by the court pending a trial on the
merits.
Sec. 162.008. INSPECTION OF PREMISES AND RECORDS. For the
purpose of determining the amount of tax collected and payable to
the state, the amount of tax accruing and due, and whether a tax
liability has been incurred under this chapter, the comptroller
may:
(1) inspect any premises where motor fuel, crude
petroleum, natural gas, derivatives or condensates of crude
petroleum, natural gas, or their products, methyl alcohol, ethyl
alcohol, or other blending agents are produced, made, prepared,
stored, transported, sold, or offered for sale or exchange;
(2) examine the books and records required to be kept
and records incident to the business of any licensee or person
required to be licensed, or any person receiving or possessing,
delivering, or selling motor fuel, crude oil, derivatives or
condensates of crude petroleum, natural gas, or their products, or
any blending agents;
(3) examine and either gauge or measure the contents
of all storage tanks, containers, and other property or equipment;
and
(4) take samples of any and all of these products
stored on the premises.
Sec. 162.009. AUTHORITY TO STOP AND EXAMINE. In order to
enforce the provisions of this chapter, the comptroller or a peace
officer may stop a motor vehicle that appears to be operating with
or transporting motor fuel in order to examine the shipping
document, cargo manifest, or invoices required to be carried,
examine a license or copy of a license that may be required to be
carried, take samples from the fuel supply or cargo tanks, and make
any other investigation that could reasonably be made to determine
whether the taxes have been paid or accounted for by a licensee, or
any person required to be licensed. The comptroller, a peace
officer, an employee of the attorney general's office, an employee
of the Texas Commission on Environmental Quality, or an employee of
the Department of Agriculture may take samples of motor fuel from
any storage tank or container to:
(1) determine if the fuel contains hazardous waste or
is adulterated; or
(2) allow the comptroller to determine whether taxes
on the fuel have been paid or accounted for to this state.
Sec. 162.010. IMPOUNDMENT AND SEIZURE. (a) If after
examination or other investigation, the comptroller believes that
the owner or operator of any motor vehicle or cargo tanks, or any
person receiving or possessing, delivering, or selling gasoline or
diesel fuel, has not paid all motor fuel taxes due, or does not have
a valid license entitling that person to possess or transport
tax-free motor fuel, the comptroller or peace officer may impound
the fuel, the motor vehicle, cargo tanks, storage tanks, equipment,
paraphernalia, or other tangible personal property used for or
incident to the storage, sale, or transportation of that motor
fuel. Unless proof is produced within three working days after the
beginning of impoundment that the owner, operator, or other person
has paid the taxes established by the comptroller to be due on the
gasoline or diesel fuel stored, sold, used, or transported and any
other taxes due to this state, or that the owner, operator, or other
person holds a valid license to possess or transport tax-free motor
fuel, the comptroller may demand payment of all taxes, penalties,
and interest due to this state, and all costs of impoundment.
(b) If the owner or operator does not produce the required
documentation or required license, or pay the taxes, penalties,
interest, and costs due within three working days after the
beginning of the impoundment, the comptroller may seize the
impounded property to satisfy the tax liability.
(c) The comptroller may seize:
(1) all motor fuel on which taxes are imposed by this
chapter that is found in the possession, custody, or control of any
person for the purpose of being sold, transported, removed, or used
by the person in violation of this chapter;
(2) all motor fuel that is removed or is deposited,
stored, or concealed in any place with intent to avoid payment of
taxes;
(3) any automobile, truck, tank truck, boat, trailer
conveyance, or other vehicle used in the removal or transportation
of the motor fuel to avoid payment of taxes; and
(4) all equipment, paraphernalia, storage tanks, or
tangible personal property incident to and used for avoiding the
payment of taxes and found in the place, building, or vehicle where
the motor fuel is found.
Sec. 162.011. SALE OF SEIZED PROPERTY. (a) The comptroller
may sell property seized under Section 162.010.
(b) Notice of the time and place of a sale shall be given to
the delinquent person in writing by certified mail at least 20 days
before the date set for the sale. The notice shall be enclosed in an
envelope addressed to the person at the person's last known address
or place of business. It shall be deposited in the United States
mail, postage prepaid. The notice shall also be published once a
week for two consecutive weeks before the date of the sale in a
newspaper of general circulation published in the county in which
the property seized is to be sold. If there is no newspaper of
general circulation in the county, notice shall be posted in three
public places in the county 14 days before the date set for the
sale. The notice must contain a description of the property to be
sold, a statement of the amount due, including interest, penalties,
and costs, the name of the delinquent, and the further statement
that unless the amount due, interest, penalties, and costs are paid
on or before the time fixed in the notice for the sale, the
property, or as much of it as may be necessary, will be sold at
public auction in accordance with the law and the notice.
(c) At the sale, the comptroller shall sell the property and
shall deliver to the purchaser a bill of sale for personal property
and a deed for real property sold. The bill of sale or deed vests the
interest or title of the person liable for the amount in the
purchaser. The unsold portion of any property seized may be left at
the place of sale at the risk of the person liable for the amount.
(d) The proceeds of a sale shall be allocated according to
the following priorities:
(1) the payment of expenses of seizure, appraisal,
custody, advertising, auction, and any other expenses incident to
the seizure and sale;
(2) the payment of the tax, penalty, and interest; and
(3) the repayment of the remaining balance to the
person liable for the amount unless a claim is presented before the
sale by any other person who has an ownership interest evidenced by
a financing statement or lien, in which case the comptroller shall
withhold the remaining balance pending a determination of the
rights of the respective parties.
Sec. 162.012. PRESUMPTIONS. (a) A person licensed under
this chapter or required to be licensed under this chapter, or other
user, who fails to keep a record, issue an invoice, or file a return
or report required by this chapter is presumed to have sold or used
for taxable purposes all motor fuel shown by an audit by the
comptroller to have been sold to the licensee or other user. Motor
fuel unaccounted for is presumed to have been sold or used for
taxable purposes. The comptroller may fix or establish the amount
of taxes, penalties, and interest due the state from the records of
deliveries or from any records or information available. If a tax
claim, as developed from this procedure, is not paid, after the
opportunity to request a redetermination, the claim and any audit
made by the comptroller or any report filed by the licensee or other
user is evidence in any suit or judicial proceedings filed by the
attorney general and is prima facie evidence of the correctness of
the claim or audit. A prima facie presumption of the correctness of
the claim may be overcome at the trial by evidence adduced by the
licensee or other user.
(b) In the absence of records showing the number of miles
actually operated per gallon of motor fuel consumed, it is presumed
that not less than one gallon of motor fuel was consumed for every
four miles traveled. An interstate trucker may produce evidence of
motor fuel consumption to establish another mileage factor. If an
examination or audit made by the comptroller from the records of an
interstate trucker shows that a greater amount of motor fuel was
consumed than was reported by the interstate trucker for tax
purposes, the interstate trucker is liable for the tax, penalties,
and interest on the additional amount shown or the trucker is
entitled to a credit or refund on overpayments of tax established by
the audit.
Sec. 162.013. VENUE OF TAX COLLECTION SUITS. The venue of a
suit, injunction, or other proceeding at law available for the
establishment or collection of a claim for delinquent taxes,
penalties, or interest accruing under this chapter and the
enforcement of the terms and provisions of this chapter is in Travis
County or in any other county having venue under existing venue
statutes.
Sec. 162.014. OTHER MOTOR FUEL TAXES PROHIBITED. The taxes
imposed by this chapter are in lieu of any other excise or
occupation tax imposed by a political subdivision of the state on
the sale, use, or distribution of gasoline, diesel fuel, or
liquefied gas.
Sec. 162.015. ADDITIONAL TAX APPLIES TO INVENTORIES. (a)
On the effective date of an increase in the rates of the taxes
imposed by this chapter, a distributor or dealer that possesses for
the purpose of sale 2,000 or more gallons of gasoline or diesel fuel
at each business location on which the taxes imposed by this chapter
at a previous rate have been paid shall report to the comptroller
the volume of that gasoline and diesel fuel, and at the time of the
report shall pay a tax on that gasoline and diesel fuel at a rate
equal to the rate of the tax increase.
(b) On the effective date of a reduction of the rates of
taxes imposed by this chapter, a distributor or dealer that
possesses for the purpose of sale 2,000 or more gallons of gasoline
or diesel fuel at each business location on which the taxes imposed
by this chapter at the previous rate have been paid becomes entitled
to a refund in an amount equal to the difference in the amount of
taxes paid on that gasoline or diesel fuel at the previous rate and
at the rate in effect on the effective date of the reduction in the
tax rates. The rules of the comptroller shall provide for the method
of claiming a refund under this chapter and may require that the
refund be paid through the distributor or supplier from whom the
dealer received the fuel.
Sec. 162.016. IMPORTATION AND EXPORTATION OF MOTOR FUEL.
(a) A person may not import motor fuel to a destination in this
state or export motor fuel to a destination outside this state by
any means unless the person possesses a shipping document for that
fuel created by the terminal or bulk plant at which the fuel was
received. The shipping document must include:
(1) the name and physical address of the terminal or
bulk plant from which the motor fuel was received for import or
export;
(2) the name and federal employer identification
number, or the social security number if the employer
identification number is not available, of the carrier transporting
the motor fuel;
(3) the date the motor fuel was loaded;
(4) the type of motor fuel;
(5) the number of gallons:
(A) in temperature-adjusted gallons if purchased
from a terminal for export or import; or
(B) in temperature-adjusted gallons or in gross
gallons if purchased from a bulk plant;
(6) the destination of the motor fuel as represented
by the purchaser of the motor fuel and the number of gallons of the
fuel to be delivered, if delivery is to only one state;
(7) the name, federal employer identification number,
license number, and physical address of the purchaser of the motor
fuel;
(8) the name of the person responsible for paying the
tax imposed by this chapter, as given to the terminal by the
purchaser if different from the licensed supplier or distributor;
and
(9) any other information that, in the opinion of the
comptroller, is necessary for the proper administration of this
chapter.
(b) The terminal or bulk plant shall provide the shipping
documents to the importer or exporter.
(c) If motor fuel is to be delivered to more than one state,
the terminal shall document the split loads by issuing shipping
documents that list the destination state of each portion of the
motor fuel.
(d) A terminal, a bulk plant, the carrier, the licensed
distributor or supplier, and the person that received the motor
fuel shall:
(1) retain a copy of the shipping document until at
least the fourth anniversary of the date the fuel is received; and
(2) provide a copy of the document to the comptroller
or any law enforcement officer not later than the 10th working day
after the date a request for the copy is received.
(e) An importer or exporter shall keep in the person's
possession the shipping document issued by the terminal or bulk
plant when transporting motor fuel imported into this state or for
export from this state. The importer or exporter shall show the
document to the comptroller or a peace officer on request. The
comptroller may delegate authority to inspect the document to other
governmental agencies. The importer or exporter shall provide a
copy of the shipping document to the person that receives the fuel
when it is delivered.
(f) The importer or exporter may deliver motor fuel only to
the destination state or states indicated on the shipping document.
(g) An importer or exporter who wants to divert the delivery
of a single cargo tank of motor fuel from the destination state
printed on the shipping document must obtain a diversion number
from the comptroller before diverting the delivery. The importer,
exporter, or motor fuel transporter must write the diversion number
on the shipping document issued for the fuel. A diversion number is
required for each diverted delivery. The comptroller may appoint a
person to assign diversion numbers or may delegate that authority
to another person.
(h) An importer that acquires motor fuel for import by cargo
tank must obtain an import verification number from the comptroller
before importing the motor fuel. The importer must write the import
verification number on the shipping document issued for the fuel.
The importer must obtain a separate import confirmation number for
each cargo tank delivery of motor fuel into this state. The
comptroller may appoint a person to assign import verification
numbers or may delegate that authority to another person.
(i) Each terminal or bulk plant shall post a notice in a
conspicuous location proximate to the point of receipt of shipping
papers that describes the duties of importers and exporters under
this section. The comptroller may prescribe the language, type,
style, and format of the notice.
[Sections 162.017-162.100 reserved for expansion]
SUBCHAPTER B. GASOLINE TAX
Sec. 162.101. POINT OF IMPOSITION OF THE GASOLINE TAX. (a)
A tax is imposed on the removal of gasoline from the terminal via
the terminal rack, other than by bulk transfer. The supplier or
permissive supplier shall collect the tax imposed by this
subchapter from the person who orders the withdrawal at the
terminal rack.
(b) A tax is imposed at the time gasoline is imported into
this state, other than by a bulk transfer, for delivery to a
destination in this state. The permissive supplier shall collect
the tax imposed by this subchapter from the person who imports the
gasoline into this state. If the seller is not a permissive
supplier, then the person who imports the gasoline into this state
shall pay the tax.
(c) A tax is imposed on the sale or transfer in the bulk
transfer/terminal system in this state by a supplier to any person
not holding a supplier's license. The supplier shall collect the
tax imposed by this subchapter from the person who orders the sale
or transfer in the bulk transfer terminal system.
(d) A tax is imposed on gasoline brought into this state in a
motor fuel supply tank or tanks of a motor vehicle operated by a
person required to be licensed as an interstate trucker.
(e) A tax is imposed on the blending of gasoline at the point
gasoline blended fuel is made in Texas outside the bulk
transfer/terminal system. The blender shall pay the tax. The
number of gallons of gasoline blended fuel on which the tax is
payable is the difference between the number of gallons of blended
fuel made and the number of gallons of previously taxed gasoline
used to make the blended fuel.
(f) A terminal operator in this state is considered a
supplier for the purpose of the tax imposed under this subchapter
unless at the time of removal:
(1) the terminal operator has a valid terminal
operator's license issued for the facility from which the gasoline
is withdrawn;
(2) the terminal operator verifies that the person who
removes the gasoline has a valid supplier's license; and
(3) the terminal operator has no reason to believe
that the supplier's license is not valid.
(g) In each subsequent sale of gasoline on which the tax has
been collected, the amount of the tax shall be added to the selling
price so that the tax is paid ultimately by the person using or
consuming the gasoline. Gasoline is deemed to be used when it is
delivered into a fuel supply tank.
Sec. 162.102. TAX RATES. The gasoline tax rate is 20 cents
for each net gallon or fractional part removed from the terminal via
the terminal rack, other than by bulk transfer. The gasoline rate
for sales to commercial transit companies is 19 cents of each net
gallon or fractional part removed from the terminal via the
terminal rack, other than by bulk transfer.
Sec. 162.103. COMPUTATION OF TAX. The amount of the tax
shall be computed and paid to the state on the net volume of gallons
of taxable gasoline as indicated in Section 162.101 multiplied by
the rate set forth in Section 162.102.
Sec. 162.104. BACKUP TAX; LIABILITY. A backup tax is
imposed at the rate specified in Section 162.102 in the following
circumstances:
(1) a person who obtains a refund of tax on gasoline by
claiming the gasoline was used for an off-highway purpose, but
actually used the gasoline to operate a motor vehicle on the
highway.
(2) a person who operates a motor vehicle on the
highway using gasoline on which tax has not been paid. If the motor
vehicle that uses the tax-free gasoline is owned or leased by a
person other than the operator, then the tax shall be paid by either
the operator or the motor vehicle's owner or lessee.
(3) a person who sells gasoline to the ultimate
consumer on which tax has not been paid and who knew or had reason to
know that the gasoline would be used for a taxable purpose. The tax
is also imposed on the ultimate consumer.
(b) A person who sells gasoline in this state on which tax
has not been paid for any purpose other than those excepted by
Section 162.105 shall at the time of sale collect the tax from the
purchaser or recipient of gasoline in addition to the selling price
and is liable to the state for the taxes collected at the time and in
the manner as provided by this chapter.
(c) The tax liability imposed by this section shall be in
addition to any other penalty imposed pursuant to this subchapter.
Sec. 162.105. EXEMPTIONS. Sales of gasoline are exempt
from the tax imposed by this subchapter under the following
circumstances:
(1) sales to United States agencies and
instrumentalities for its exclusive use. This exemption shall not
apply with respect to fuel sold or delivered to any person operating
under contract with a United States governmental agency or
instrumentality.
(2) sales to a public school district in this state for
its exclusive use.
(3) sales to a commercial transportation company that
provides public school transportation services to a school district
under Section 34.008, Education Code, and that uses the gasoline
only to provide such services.
(4) all gasoline fuel exported by either a licensed
supplier or licensed exporter from this state to any other state,
provided that the bill of lading indicates the destination state
and the supplier collects the destination state tax. This
exception shall not apply to any gasoline that is transported and
delivered outside this state in the motor fuel supply tank of a
motor vehicle other than an interstate trucker.
(5) truck or railcar movements between licensed
suppliers or licensed permissive suppliers in which the gasoline
removed from the first terminal comes to rest in the second
terminal.
(6) delivered or sold into a storage facility of a
licensed aviation fuel dealer from which gasoline will be delivered
solely into the fuel supply tanks of aircraft or aircraft servicing
equipment, or sold from one licensed aviation fuel dealer to
another licensed aviation fuel dealer who will deliver the aviation
fuel exclusively into the fuel supply tanks of aircraft or aircraft
servicing equipment.
(7) exports to a foreign country where the bill of
lading indicates the foreign destination and the fuel is actually
exported to the foreign country.
Sec. 162.106. PERSONS REQUIRED TO BE LICENSED. Persons
shall obtain the appropriate license or licenses issued by the
comptroller before conducting the activities of:
(1) supplier;
(A) A supplier who may act as a distributor,
importer, exporter, blender, motor fuel transporter, or aviation
fuel dealer without securing a separate license but is subject to
all other conditions, requirements, and liabilities imposed on
those licensees.
(2) permissive supplier;
A permissive supplier who may act as a distributor, importer,
exporter, blender, motor fuel transporter, or aviation fuel dealer
without securing a separate license, but is subject to all other
conditions, requirements, and liabilities imposed on those
licensees.
(3) distributor;
(A) A distributor who may act as an importer,
exporter, blender, or motor fuel transporter without securing a
separate license, but is subject to all other conditions,
requirements, and liabilities imposed on those licensees.
(4) importer;
(A) An importer who may act as an exporter,
blender, or motor fuel transporter without securing a separate
license, but is subject to all other conditions, requirements, and
liabilities imposed on those licensees.
(5) terminal operator;
(6) exporter;
(7) blender;
(8) motor fuel transporter;
(9) aviation fuel dealer; or
(10) an interstate trucker.
Sec. 162.107. TRIP PERMITS. (a) In lieu of an annual
interstate trucker's permit, a person bringing a motor vehicle
described by Section 162.001(41)(A), (B), or (C) into this state
for commercial purposes may obtain a trip permit. The trip permit
must be obtained before or at the time of entry into this state.
(b) No more than five trip permits for each person may be
issued during a calendar year.
(c) A fee for each trip permit shall be collected from the
applicant and shall be in the amount of $50 for each vehicle for
each trip.
(d) No reports are required with respect to the vehicle.
(e) Operating a motor vehicle without a valid interstate
trucker's or trip permit may subject the operator to a penalty under
Section 162.402.
Sec. 162.108. PERMISSIVE SUPPLIER REQUIREMENTS ON
OUT-OF-STATE REMOVALS. (a) A person may elect to obtain a
permissive supplier license to collect the tax imposed under this
subchapter for gasoline that is removed at a terminal in another
state and has Texas as the destination state.
(b) A licensed permissive supplier shall comply with all of
the following requirements with respect to gasoline that is removed
by the licensed permissive supplier at a terminal located in
another state and that has Texas as the destination state:
(1) collect the tax due this state on the gasoline;
(2) waive any defense that this state lacks
jurisdiction to require the supplier to collect the tax due this
state on the gasoline under this subchapter;
(3) report and pay the tax due on the gasoline in the
same manner as if the removal had occurred at a terminal located in
Texas;
(4) keep records of the removal of the gasoline and
submit to audits concerning the gasoline as if the removal had
occurred at a terminal located in Texas; 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 Texas.
(c) A permissive supplier shall acknowledge in its license
application that this state imposes the requirements listed in
Subsection (b) under its general police power and that the
permissive supplier submits to the jurisdiction of this state only
for purposes related to the administration of this chapter.
Sec. 162.109. LICENSE APPLICATION PROCEDURE. (a) To
obtain a license under this subchapter, an applicant shall file an
application promulgated by the comptroller, which must contain the
following information:
(1) the name under which the applicant transacts or
intends to transact business;
(2) the principal office, residence, or place of
business in Texas, or other location of the applicant;
(3) if the applicant is not an individual, the names of
the principal officers of an applicant corporation, or the names of
the members of an applicant partnership, and the office, street, or
post office addresses of each; and
(4) other information required by the comptroller.
(b) An applicant for a license as a supplier, permissive
supplier, or terminal operator shall have a federal certificate of
registry issued under 26 U.S.C. Section 4101 that authorizes the
applicant to enter into federal tax-free transactions of gasoline
in the bulk 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. Section 4101 shall
include the registration number of the certificate on the
application for a license under this section.
(c) An applicant for a license as an importer or distributor
shall list on the application each state from which the applicant
intends to import gasoline and, if required by a state listed, shall
be licensed or registered for gasoline 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.
(d) An applicant for a license as an exporter shall
designate an agent located in Texas 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 gasoline received in Texas
by means of a transfer that is outside the bulk transfer/terminal
system and, if required by a state listed, shall be licensed or
registered for gasoline 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.
(e) 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 gasoline 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.
Sec. 162.110. ISSUANCE AND DISPLAY OF LICENSE. (a) Upon
approval of an application, the comptroller shall issue to the
applicant a license, which must be posted in a conspicuous place or
kept available for inspection at the principal place of business of
the owner. A copy of the license must be kept at each place of
business or other place of storage from which gasoline is sold,
distributed, or used, and in each motor vehicle used by the license
holder to transport gasoline purchased by the license holder for
resale, distribution, or use.
(b) A person holding an interstate trucker's license shall
reproduce the license and carry a photocopy with each motor vehicle
being operated into or from the state.
Sec. 162.111. LICENSES: PERIODS OF VALIDITY. (a) The
license issued to a supplier, permissive supplier, distributor,
importer, exporter, blender, or motor fuel transporter is permanent
and is valid so long as the licensee has in force and effect the
required bond or security and furnishes timely reports and
supplements as required, or until the license is surrendered by the
holder or canceled by the comptroller. The comptroller shall
cancel a license under this subsection if no purchase, sale, or use
of gasoline has been reported by the licensee for the prior nine
months.
(b) The license issued to an aviation fuel dealer is
permanent and is valid until the license is surrendered by the
holder or canceled by the comptroller.
(c) The license issued to an interstate trucker is valid
from the date of its issuance through December 31 of each calendar
year or until the license is surrendered by the holder or canceled
by the comptroller. The comptroller may renew the license for each
ensuing calendar year if the licensee furnishes timely reports as
required.
(d) A trip permit is valid for the period stated on it as
determined by the comptroller.
(e) All licenses issued under this subchapter shall not be
transferable.
Sec. 162.112. BOND AND OTHER SECURITY FOR TAXES. (a) The
comptroller shall determine the amount of security required of a
supplier, permissive supplier, distributor, exporter, importer, or
blender, taking into consideration the amount of tax that has or is
expected to become due from the person, any past history of the
person as a licensee under this chapter, and the necessity to
protect the state against the failure to pay the tax as it becomes
due.
(b) If it is determined that the posting of security is
necessary to protect the state, the comptroller may require a
licensee to post a bond. A licensee shall post a bond equal to two
times the maximum amount of tax that could accrue on tax-free
gasoline purchased or acquired during a reporting period. The
minimum bond is $30,000. The maximum bond is $600,000 unless the
comptroller believes there is undue risk of loss of tax revenues, in
which event the comptroller may require one or more bonds or
securities in a total amount exceeding $600,000.
(c) A licensee who has filed a bond or other security under
this subchapter is exempted from the bond or other security
requirements of this subchapter and is entitled, on request, to
have the comptroller return, refund, or release the bond or
security if in the judgment of the comptroller the person has for
four consecutive years continuously complied with the conditions of
the bond or other security filed under this subchapter. However, if
the comptroller determines that the revenues of the state would be
jeopardized by the return, refund, or release of the bond or
security, the comptroller may elect not to return, refund, or
release the bond or security, and may reimpose a requirement of a
bond or other security as the comptroller determines necessary to
protect the revenues of the state.
(d) A bond must be a continuing instrument, must constitute
a new and separate obligation in the penal sum named in the bond for
each calendar year or portion of a year while the bond is in force,
and must remain in effect until the surety on the bond is released
and discharged.
(e) In lieu of filing a surety bond, an applicant for a
license may substitute the following security:
(1) cash in the form of United States currency in an
amount equal to the required bond to be deposited in the suspense
account of the state treasury;
(2) an assignment to the comptroller of a certificate
of deposit in any bank or savings and loan association in Texas that
is a member of the Federal Deposit Insurance Corporation in an
amount at least equal to the bond amount required; or
(3) an irrevocable letter of credit to the comptroller
from any bank or savings and loan association in Texas that is a
member of the Federal Deposit Insurance Corporation in an amount of
credit at least equal to the bond amount required.
(f) If the amount of an existing bond becomes insufficient
or a security becomes unsatisfactory or unacceptable, the
comptroller may require the filing of a new or of an additional bond
or security.
(g) No surety bond or other form of security may be released
until it is determined by examination or audit that no tax, penalty,
or interest liability exists. The cash or securities shall be
released within 60 days after the comptroller determines that no
liability exists.
(h) The comptroller may use the cash or certificate of
deposit security to satisfy a final determination of delinquent
liability or a judgment secured in any action by this state to
recover gasoline taxes, costs, penalties, and interest found to be
due this state by a person in whose behalf the cash or certificate
security was deposited.
(i) A surety on a bond furnished by a licensee shall be
released and discharged from liability to the state accruing on the
bond after the expiration of 30 days after the date on which the
surety files with the comptroller a written request to be released
and discharged. The request does not relieve, release, or
discharge the surety from a liability that already accrued or that
accrues before the expiration of the 30-day period. The
comptroller, promptly on receipt of the request, shall notify the
licensee who furnished the bond, and unless the licensee, before
the expiration date of the existing security, files with the
comptroller a new bond with a surety company duly authorized to do
business under the laws of the state, or other authorized security,
in the amount required by this section, the comptroller shall
cancel the license in the manner provided by this chapter.
(j) The comptroller shall notify immediately the issuer of a
letter of credit of a final determination of the distributor's
delinquent liability or a judgment secured in any action by this
state to recover gasoline taxes, costs, penalties, and interest
found to be due this state by a distributor in whose behalf the
letter of credit was issued. The letter of credit allowed as
security for the remittance of taxes under this subchapter shall
contain a statement that the issuer agrees to respond to the
comptroller's notice of liability with amounts to satisfy the
comptroller's delinquency claim against the distributor.
(k) A licensee may request an examination or audit to obtain
release of the security when the licensee relinquishes the license
or when the licensee desires to substitute one form of security for
an existing one.
Sec. 162.113. LICENSEE STATUS LIST. (a) The comptroller,
on or before December 20 of each year, shall make available to all
licensees an alphabetical list of licensed suppliers, permissive
suppliers, distributors, aviation fuel dealers, importers,
exporters, blenders, terminal operators, and dyed diesel fuel
bonded users. A supplemental list of additions and deletions shall
be made available to the licensees each month. A current and
effective license or the list furnished by the comptroller is
evidence of the validity of the license until the comptroller
notifies licensees of a change in the status of a license holder.
(b) A licensed supplier or permissive supplier who sells
gasoline fuel tax-free to a person whose supplier's or permissive
supplier's license has been canceled or revoked under this chapter
shall be liable for any tax due on gasoline sold subsequent to
receipt of the notice.
(c) The comptroller shall notify all licensees under this
chapter when the license is subsequently reinstated and the
effective date thereof. Sales to the supplier or permissive
supplier after the effective date of the reinstatement may be made
tax-free.
Sec. 162.114. REMITTANCE OF TAX TO SUPPLIER OR PERMISSIVE
SUPPLIER; ALLOWANCES. (a) Each licensed distributor and licensed
importer shall remit to the supplier or permissive supplier, as
applicable, the tax imposed by Section 162.101 for gasoline removed
at a terminal rack. A licensed distributor or licensed importer may
elect to defer payment of the tax to the supplier or permissive
supplier until two days prior to the date the supplier or permissive
supplier is required to remit the tax to this state, including those
taxes due on gasoline destined for export, and the payment shall be
by electronic funds transfer. The supplier or permissive supplier
shall notify a licensed distributor or licensed importer in writing
within 10 days of the date the supplier remitted taxes to the state
of the licensed distributor's or licensed importer's failure to
remit taxes for gasoline removed from the terminal by the licensed
distributor or licensed importer. If the supplier or permissive
supplier is unable to secure payment of taxes from the licensed
distributor or licensed importer due for gasoline removed from the
terminal during the previous reporting period and the supplier
elects to take a credit against a subsequent payment of gasoline tax
to the state for the taxes not remitted to the supplier or
permissive supplier by the licensed distributor or licensed
importer, the supplier or permissive supplier shall notify the
comptroller of the licensed distributor's or licensed importer's
failure to remit tax in conjunction with the report requesting a
credit. The supplier shall have the right, after notifying the
comptroller of the licensed distributor's or licensed importer's
failure to remit taxes under this subsection, to terminate the
ability of the licensed distributor or licensed importer to defer
the payment of gasoline tax. The right of the licensed distributor
or licensed importer to defer the payment of gasoline tax shall be
reinstated without delay by the supplier or permissive supplier
after the licensed distributor or licensed importer has provided
the supplier notice that it has satisfied that alleged tax
deficiency leading to the termination of the licensed distributor's
or licensed importer's ability to defer the payment of tax. A
supplier, permissive supplier, or its representative that conducts
electronic transactions to a draft account of licensed distributors
or licensed importers for the payment of taxes due under this
subsection shall provide at least two days' notice via electronic
means of the amount to be drafted from the account of the licensed
distributor or licensed importer, as well as the account number to
be drafted.
(b) A licensed distributor or licensed importer who makes
timely payments is entitled to retain 1-3/4 percent of the total
taxes to be paid to the supplier or permissive supplier to cover
administrative expenses. The comptroller may cancel as provided in
Section 162.005 the license of a distributor, exporter, or importer
who fails to pay the full amount of tax required by this subchapter.
Sec. 162.115. REPORTS AND PAYMENTS. (a) Except as provided
by Subsection (b), each person who is liable for the tax imposed by
this subchapter, a terminal operator, and a licensed distributor
shall file a return on or before the 25th day of the month following
the end of each calendar month.
(b) A motor fuel transporter and an interstate trucker shall
file a return on or before the 25th day of the month following the
end of the calendar quarter.
(c) The return required by this section shall be accompanied
by a payment for the amount of tax reported due.
(d) An aviation fuel dealer is not required to file a
return.
Sec. 162.116. RECORDS. (a) A supplier and permissive
supplier shall keep:
(1) a record showing the number of gallons of:
(A) all gasoline inventories on hand at the first
of each month;
(B) all gasoline refined, compounded, or
blended;
(C) all gasoline purchased or received, showing
the name of the seller and date of each purchase or receipt;
(D) all gasoline sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(E) all gasoline lost by fire, theft, or
accident; and
(2) an itemized statement showing by load the number
of gallons of all gasoline:
(A) received during the preceding calendar month
for export and the location of the loading;
(B) exported from this state by destination state
or country; and
(C) imported during the preceding calendar month
by state or country of origin.
(b) A distributor shall keep:
(1) a record showing the number of gallons of:
(A) all gasoline inventories on hand at the first
of each month;
(B) all gasoline blended;
(C) all gasoline purchased or received, showing
the name of the seller and date of each purchase or receipt;
(D) all gasoline sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(E) all gasoline lost by fire, theft, or
accident; and
(2) an itemized statement showing by load the number
of gallons of all gasoline:
(A) received during the preceding calendar month
for export and the location of the loading;
(B) exported from this state by destination state
or country; and
(C) imported during the preceding calendar month
by state or country of origin.
(c) An importer shall keep:
(1) a record showing the number of gallons of:
(A) all gasoline inventories on hand at the first
of each month;
(B) all gasoline compounded or blended;
(C) all gasoline purchased or received, showing
the name of the seller and date of each purchase or receipt;
(D) all gasoline sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(E) all gasoline lost by fire, theft, or
accident; and
(2) an itemized statement showing by load the number
of gallons of all gasoline:
(A) received during the preceding calendar month
for export and the location of the loading;
(B) exported from this state by destination state
or country; and
(C) imported during the preceding calendar month
by state or country of origin.
(d) An exporter shall keep:
(1) a record showing the number of gallons of:
(A) all gasoline inventories on hand at the first
of each month;
(B) all gasoline compounded or blended;
(C) all gasoline purchased or received, showing
the name of the seller and date of each purchase or receipt;
(D) all gasoline sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(E) all gasoline lost by fire, theft, or
accident; and
(2) an itemized statement showing by load the number
of gallons of all gasoline:
(A) received during the preceding calendar month
for export and the location of the loading;
(B) exported from this state by destination state
or country.
(e) A blender shall keep:
(1) a record showing the number of gallons of:
(A) all gasoline inventories on hand at the first
of each month;
(B) all gasoline compounded or blended;
(C) all gasoline purchased or received, showing
the name of the seller and date of each purchase or receipt;
(D) all gasoline sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(E) all gasoline lost by fire, theft, or
accident.
(f) A terminal operator shall keep:
(1) a record showing the number of gallons of:
(A) all gasoline inventories on hand at the first
of each month, including the name and license number of each owner,
and the amount of gasoline held for each owner;
(B) all gasoline received, showing the name of
the seller and date of each purchase or receipt;
(C) all gasoline sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(D) all gasoline lost by fire, theft, or
accident; and
(2) an itemized statement showing by load the number
of gallons of all gasoline:
(A) received during the preceding calendar month
for export and the location of the loading;
(B) exported from this state by destination state
or country; and
(C) imported during the preceding calendar month
by state or country of origin.
(g) A motor fuel transporter shall keep:
(1) a complete and separate record of each intrastate
and interstate transportation of gasoline, showing:
(A) the date of transportation;
(B) the name of the consignor and consignee;
(C) the means of transportation;
(D) the quantity and kind of gasoline
transported;
(E) full data concerning the diversion of
shipments, including the number of gallons diverted from interstate
to intrastate and intrastate to interstate commerce; and
(F) the points of origin and destination, the
number of gallons shipped or transported, the date, the consignee
and the consignor, and the kind of gasoline which has been diverted.
(h) A dealer shall keep a record showing the number of
gallons of:
(1) gasoline inventories on hand at the first of each
month;
(2) all gasoline purchased or received, showing the
name of the seller and the date of each purchase or receipt;
(3) all gasoline sold or used, showing the date of the
sale or use; and
(4) all gasoline lost by fire, theft, or accident.
(i) An interstate trucker shall keep a record of:
(1) the total miles traveled in all states by all
vehicles traveling to or from Texas and the total quantity of
gasoline consumed in those vehicles; and
(2) the total miles traveled in Texas and the total
quantity of gasoline purchased and delivered into the fuel supply
tanks of motor vehicles in Texas.
(j) An aviation fuel dealer shall keep a record showing the
number of gallons of:
(1) all gasoline inventories on hand at the first of
each month;
(2) all gasoline purchased or received, showing the
name of the seller and date of each purchase or receipt;
(3) all gasoline sold or used in aircraft or aircraft
servicing equipment; and
(4) all gasoline lost by fire, theft, or accident.
(k) The records of an aviation fuel dealer made under
Subsection (j)(3) must show:
(1) the name of the purchaser or user of gasoline;
(2) the date of the sale or use of gasoline; and
(3) the registration or "N" number of the airplane or
description or number of the aircraft or a description or number of
the aircraft servicing equipment in which gasoline is used.
(l) The comptroller may require selective schedules from a
supplier, permissive supplier, distributor, importer, exporter,
blender, terminal operator, motor fuel transporter, dealer,
aviation fuel dealer, and interstate trucker for any purchases,
sales, or deliveries of gasoline when the schedules are not
inconsistent with the requirements of this chapter.
(m) The records required must be kept for four years and are
open to inspection at all times by the comptroller and the attorney
general.
Sec. 162.117. INFORMATION REQUIRED ON SUPPLIER'S AND
PERMISSIVE SUPPLIER'S RETURN. (a) The monthly return and
supplements of each supplier and permissive supplier shall contain
all of the following information for the period covered by the
return and any other information required by the comptroller:
(1) the number of net gallons of tax-paid gasoline
received by the supplier or permissive supplier during the month,
sorted by product code, seller, point of origin, destination state,
carrier, and receipt date;
(2) the number of net gallons of gasoline removed at a
terminal rack during the month from the account of the supplier,
sorted by product code, person receiving the gasoline, terminal
code, and carrier;
(3) the number of net gallons of gasoline removed
during the month for export, sorted by product code, person
receiving the gasoline, terminal code, destination state, and
carrier;
(4) the number of net gallons of gasoline removed
during the month from a terminal located in another state for
conveyance to Texas, as indicated on the shipping document for the
gasoline, sorted by product code, person receiving the gasoline,
terminal code, and carrier; and
(5) the number of net gallons of gasoline the supplier
or permissive supplier sold during the month in transactions
exempt under Section 162.105, sorted by product code, carrier,
purchaser, and terminal code.
(6) the number of net gallons of gasoline sold in the
bulk transfer/terminal system in this state to any person not
holding a supplier's or permissive supplier's license.
(b) A supplier or permissive supplier that timely pays the
tax to the state may deduct, from the amount of tax due, a
collection allowance of two percent of the amount of tax payable to
this state.
(c) A supplier or permissive supplier may take a credit for
any taxes that were not remitted in a previous period to the
supplier or permissive supplier by any licensed distributor or
licensed importer as required under Section 162.104. The licensed
supplier or permissive supplier is eligible to take the credit if
the comptroller is notified within 60 days after the default
occurred. If a licensee pays to a supplier or permissive supplier
the tax owed, but the payment occurs after the supplier or
permissive supplier has taken a credit on its return, the supplier
or permissive supplier shall remit the payment to the comptroller
with the next monthly return subsequent to receipt of the tax.
Sec. 162.118. DUTIES OF SUPPLIER OR PERMISSIVE SUPPLIER.
(a) A supplier or permissive supplier who receives or collects tax
holds the amount so collected in trust for the benefit of the state
and has a fiduciary duty to remit to the comptroller the amount of
tax received or collected.
(b) A supplier or permissive supplier shall furnish the
purchaser with an invoice, bill of lading, or other documentation
as evidence of the number of gallons received by the purchaser.
(c) 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 gasoline purchased from the supplier or
permissive supplier.
Sec. 162.119. INFORMATION REQUIRED ON A DISTRIBUTOR'S
RETURN. The monthly return and supplements of each distributor
shall contain all of the following information for the period
covered by the return and any other information required by the
comptroller:
(1) the number of net gallons of tax-paid gasoline
received by the distributor during the month, sorted by product
code, seller, point of origin, destination state, carrier and
receipt date;
(2) the number of net gallons of gasoline removed at a
terminal rack by the distributor during the month, sorted by
product code, seller, terminal code, and carrier;
(3) the number of net gallons of gasoline removed by
the distributor during the month for export, sorted by product
code, terminal code, bulk plant address, destination state, and
carrier;
(4) the number of net gallons of gasoline removed by
the distributor during the month from a terminal located in another
state for conveyance to Texas, as indicated on the shipping
document for the gasoline, sorted by product code, seller, terminal
code, bulk plant address, and carrier; and
(5) the number of net gallons of gasoline the
distributor sold during the month in transactions exempt under
Section 162.105, sorted by product code and purchaser.
Sec. 162.120. INFORMATION REQUIRED ON IMPORTER'S RETURNS.
(a) The monthly return and supplements of an importer shall contain
the following information for the period covered by the return and
any other information required by the comptroller:
(1) the number of net gallons of imported gasoline
acquired from a supplier or permissive supplier who collected the
tax due this state on the gasoline;
(2) the number of net gallons of imported gasoline
acquired from a person who did not collect the tax due this state on
the gasoline, listed by source state, person, and terminal;
(3) the number of net gallons of imported gasoline
acquired from a bulk plant outside this state, listed by bulk plant
name, address and by product code.
(b) An importer of gasoline that timely files a return and
payment may deduct, from the amount of tax payable with the return,
a collection allowance of two percent of the amount of tax payable
to this state.
Sec. 162.121. INFORMATION REQUIRED ON TERMINAL OPERATOR'S
RETURN. (a) A terminal operator shall file with the comptroller a
monthly information return and supplement showing the amount of
gasoline received and removed from the terminal during the month.
The return shall contain the following summary information and any
other summary information required by the comptroller:
(1) the beginning and ending inventory that pertains
to the applicable reporting month;
(2) the number of net gallons of gasoline received in
inventory at the terminal during the month; and
(3) the number of net gallons of gasoline removed from
inventory at the terminal during the month.
(b) The comptroller may accept the Federal ExSTARS terminal
operator report provided to the Internal Revenue Service in lieu of
the required state terminal operator report.
Sec. 162.122. INFORMATION REQUIRED ON MOTOR FUEL
TRANSPORTER'S RETURN. The quarterly return and supplements of a
motor fuel transporter shall contain the following information for
the period covered by the return and any other information required
by the comptroller:
(1) the name, license number, and terminal control
number of each person or terminal from whom the transporter
received gasoline outside Texas for delivery in Texas, the gross
gallons of gasoline received, the date the gasoline was received,
product code, and the name and license number of the purchaser of
the gasoline; and
(2) the name, license number, and terminal control
number of each person or terminal from whom the transporter
received gasoline in Texas for delivery outside Texas, the gross
gallons of gasoline delivered, the date the gasoline was delivered,
product code, and the destination state of the gasoline.
Sec. 162.123. INFORMATION REQUIRED ON AN EXPORTER'S RETURN.
The monthly return and supplements of an exporter shall contain the
following information for the period covered by the return and any
other information required by the comptroller:
(1) the number of net gallons of gasoline acquired
from a supplier and exported during the month, including supplier
name, terminal control number, and product code;
(2) the number of net gallons of gasoline acquired
from a bulk plant and exported during the month, including bulk
plant name and product code;
(3) the destination state of the gasoline exported
during the month.
Sec. 162.124. INFORMATION REQUIRED ON A BLENDER'S RETURN.
The monthly return and supplements of each blender shall contain
all of the following information for the period covered by the
return and any other information required by the comptroller:
(1) the number of net gallons of tax-paid gasoline
received by the blender during the month, sorted by product code,
seller, point of origin, carrier, and receipt date;
(2) the number of net gallons of product blended with
gasoline during the month, sorted by product code, type of blending
agent if no product code exists, seller, and carrier;
(3) the number of net gallons of blended gasoline sold
during the month and license number or entity name and address
receiving the blended gasoline.
Sec. 162.125. INFORMATION REQUIRED ON AN INTERSTATE
TRUCKER'S RETURN. The quarterly return and supplements of each
interstate trucker shall contain all of the following information
for the period covered by the return and any other information
required by the comptroller:
(1) the total miles traveled in all states by all
vehicles traveling to or from Texas and the total quantity of
gasoline consumed in those vehicles; and
(2) the total miles traveled in Texas and the total
quantity of gasoline purchased and delivered into the fuel supply
tanks of motor vehicles in Texas.
Sec. 162.126. REFUNDS OF TAXES PAID ON EXCEPTED USES OF
GASOLINE. (a) A licensee may take a credit on a return for the
period in which the sale occurred, and a non-licensee may file a
refund claim with the comptroller, if the licensee or non-licensee
paid tax on the purchase of gasoline and subsequently resells the
tax-paid gasoline in any one of the following circumstances:
(1) sale to the United States government, its
agencies, and its instrumentalities for its exclusive use. No
refund shall be allowed for gasoline used by any person operating
under contract with the United States governmental agency or its
instrumentalities.
(2) sale to a public school district in this state for
its exclusive use.
(3) sale by a licensed distributor to a licensed
exporter who subsequently exports the gasoline to another state,
provided that the exporter has paid any applicable gasoline tax to
the destination state prior to a license distributor claiming a
refund.
(4) sale by a licensed distributor to a licensed
aviation fuel dealer.
(5) sale to a commercial transportation company that
provides public school transportation services to a school district
under Section 34.008, Education Code, and used exclusively to
provide those services.
(6) Truck or railcar movements between licensed
suppliers or licensed permissive suppliers in which the gasoline
removed from the first terminal comes to rest in the second terminal
and tax was paid on the first removal. The licensee who receives
the gasoline in the second terminal may claim the refund.
(b) A licensee may take a credit on a return for the period
in which the sale occurred and a non-licensee may file a refund
claim with the comptroller if the licensee or non-licensee paid tax
and subsequently uses the gasoline in any of the following:
(1) gasoline used by the United States government, its
agencies, and its instrumentalities for its exclusive use. No
refund shall be allowed for gasoline used by any person operating
under contract with a United States governmental agency or its
instrumentalities.
(2) gasoline used by a public school district in this
state for its exclusive use.
(3) gasoline used by a licensed aviation fuel dealer
and delivered into the fuel supply tanks of aircraft or aircraft
servicing equipment.
(4) gasoline used by a commercial transportation
company that provides public school transportation services to a
school district under Section 34.008, Education Code, and used
exclusively to provide those services.
(5) gasoline used outside the state by a licensed
interstate trucker in commercial vehicles operated under a
interstate trucker license. Any credit or refund claimed under
this subdivision must be taken or filed within the limitation
period as provided by Section 162.128.
(6) gasoline used in this state by auxiliary power
units or power take-off equipment on any motor vehicle, if such use
can be accurately measured while the motor vehicle is stationary by
any metering or other measuring device or method designed to
measure the fuel separately from fuel used to propel or idle the
motor vehicle. The comptroller may approve and adopt the use of any
device as a basis for determining the quantity of gasoline consumed
in those operations for tax credit or tax refund. The
climate-control air conditioning or heating system of a motor
vehicle with a primary purpose of providing for the convenience or
comfort of the operator or passengers is not a power take-off system
and no refund will be allowed for the gasoline tax paid on any
portion of the gasoline that is used for this purpose. No credit or
refund will be allowed for the gasoline tax paid on that portion of
the gasoline used for idling.
(c) A distributor or non-licensee who files a valid refund
claim with the comptroller shall be paid by a check issued by the
comptroller.
(d) A person who paid tax on the purchase of gasoline may
claim a credit or seek a refund with the comptroller if gasoline of
100 or more gallons is subsequently exported or lost by fire, theft,
or accident. Any credit or refund claimed under this subsection
must be taken or filed within the limitation period as provided by
Section 162.128.
(e) A commercial transit company that paid tax on the
purchase of gasoline may seek a refund with the comptroller of one
cent per gallon for gasoline used in transit vehicles.
(f) The right to receive a refund under this section is not
assignable.
(g) The comptroller may adopt rules specifying procedures
and requirements that must be followed in connection with claiming
a credit or refund under this section.
Sec. 162.127. CREDITS AND REFUNDS FOR BAD DEBTS. (a) A
permitted distributor may file a refund claim with the comptroller
if:
(1) the distributor has paid the taxes imposed by this
subchapter sold on account;
(2) the distributor determines that the account is
uncollectable and worthless;
(3) at the time of the transaction, the person to whom
the distributor sold the gasoline held a permit issued by the
comptroller; and
(4) the account is written off as a bad debt on the
accounting books of the distributor.
(b) A terminal supplier may take a credit on the monthly
report to be filed with the comptroller if:
(1) on a previous report, the terminal supplier paid
the taxes imposed by this subchapter on gasoline sold on account;
(2) the person to whom the terminal supplier sold the
gasoline has not remitted the tax to the terminal supplier; and
(3) at the time of the transaction, the person to whom
the terminal supplier sold the gasoline held a permit issued by the
comptroller.
(c) The return on which the credit is taken or the refund
claimed must state the permit number of the person whose account has
been written off as a bad debt and any other information required by
the comptroller. The amount of the refund that may be claimed under
Subsection (a) or (b) may equal but may not exceed the amount of
taxes paid on the gasoline to which the written-off account
applies.
(d) If, after a credit is taken or a refund is received under
Subsection (a) or (b), the account on which the credit or refund was
based is paid, or if the comptroller otherwise determines that the
credit or refund was not authorized by Subsection (a) or (b), the
unpaid taxes shall be paid by the terminal supplier or distributor
taking the credit or receiving the refund, plus a penalty of 10
percent of the amount of the unpaid taxes and interest at the rate
provided by Section 111.060 beginning on the day that the credit was
taken or the refund was issued.
(e) This section does not apply to a sale of gasoline that is
delivered into the fuel supply tank of a motor vehicle or motorboat
and for which payment is made through the use and acceptance of a
credit card.
(f) A refund under this section must be claimed at the time
the account is written off as a bad debt, but may only be claimed
before the expiration of the applicable limitation period as
provided by Chapter 111. A credit under this section must be taken
on either the first or second monthly report of a terminal supplier
following the monthly report on which the terminal supplier paid
the tax.
(g) The comptroller may take action against a person in
relation to whom a distributor or supplier has made a refund claim
or taken a credit for collection of the tax owed and for penalty and
interest provided by Chapter 111.
Sec. 162.128. CLAIMS FOR REFUNDS. (a) A refund claim must
be filed on a form provided by the comptroller, be supported by the
original invoice issued by the seller, and contain:
(1) the stamped or preprinted name and address of the
seller;
(2) the name of the purchaser;
(3) the date of delivery of the gasoline;
(4) the date of the issuance of the invoice, if
different from the date of fuel delivery;
(5) the number of gallons of gasoline delivered;
(6) the amount of tax, either separately stated from
the selling price or a notation that the selling price includes the
tax; and
(7) the type of vehicle or equipment, such as a
motorboat, railway engine, motor vehicle, off-highway vehicle, or
refrigeration unit or stationary engine into which the fuel is
delivered.
(b) The purchaser must obtain the original invoice from the
seller of the gasoline no later than 30 days after the date of
delivery of the gasoline. If the delivery of gasoline is made
through an automated method whereby the purchase is automatically
applied to the purchaser's account, one invoice may be issued at the
time of billing covering multiple purchases made during a 30-day
billing cycle.
(c) A distribution log filed with the comptroller to support
the number of gallons of gasoline removed from a user's own bulk
storage must contain the name and address of the bulk user making
the delivery stamped or preprinted on it and, for each individual
delivery from the bulk storage, the following:
(1) the date;
(2) the number of gallons of gasoline;
(3) the signature of the user; and
(4) the type or description of off-highway equipment
into which the gasoline is delivered, or the type of licensed motor
vehicle into which the gasoline is delivered, including but not
limited to state highway license plate number or vehicle
identification number, and odometer or hubmeter reading.
(d) Inventories of all gasoline on hand at the first of each
month.
(e) A person who files a claim for a tax refund on gasoline
used for a purpose for which a tax refund is not authorized or who
files an invoice supporting a refund claim on which the date,
figures, or any material information has been falsified or altered
forfeits the person's right to the entire amount of the refund claim
filed unless the claimant provides proof satisfactory to the
comptroller that the incorrect refund claim filed was due to a
clerical or mathematical calculation error.
(f) After examination of the refund claim, the comptroller,
before issuing a refund warrant, shall deduct from the amount of the
refund the two percent deducted originally by the licensee on the
first sale or distribution of the gasoline.
Sec. 162.129. WHEN GASOLINE TAX REFUND MAY BE FILED. (a)
Unless otherwise provided by this section, a claim for a refund must
be filed with the comptroller within one year after the first day of
the calendar month following the purchase, use, delivery, export,
or loss by fire, theft, or accident of gasoline, whichever period
expires latest.
(b) If the amount of credit to which an interstate trucker
is entitled to take under Section 162.125 exceeds the amount of tax
due on that reporting period, the excess credit amount may be
claimed on any of three successive quarterly returns following the
period in which the credit was established, or the interstate
trucker may seek a refund from the comptroller on or before the due
date of the third successive quarterly return following the period
in which the credit was established. Any credit that is not claimed
within the period prescribed herein expires.
(c) If the comptroller assesses a supplier or permissive
supplier for a tax-free sale that is taxable, and the supplier or
permissive supplier subsequently collects the tax from the
purchaser, the purchaser may file a refund claim within one year
from the date the supplier's or permissive supplier's deficiency
assessment becomes final if the purchaser used the gasoline in an
exempt manner.
(d) A supplier or permissive supplier that determines taxes
were erroneously reported and remitted or that paid more taxes than
were due this state because of a mistake of fact or law may take a
credit on the monthly tax report on which the error has occurred and
tax payment made to the comptroller. The credit must be taken
before the expiration of the applicable period of limitation as
provided by Chapter 111.
SUBCHAPTER C. DIESEL FUEL TAX
Sec. 162.201. POINT OF IMPOSITION OF THE DIESEL FUEL TAX.
(a) A tax is imposed on the removal of diesel fuel from the terminal
via the terminal rack other than by bulk transfer. The supplier or
permissive supplier shall collect the tax imposed by this
subchapter from the person who orders the withdrawal at the
terminal rack.
(b) A tax is imposed at the time diesel fuel is imported into
this state, other than by bulk transfer, for delivery to a
destination in this state. The permissive supplier shall collect
the tax imposed by this subchapter from the person who imports the
diesel fuel into this state. If the seller is not a permissive
supplier, then the person who imports the diesel fuel into this
state shall pay the tax.
(c) A tax is imposed on the sale or transfer in the bulk
transfer/terminal system in this state to any person not holding a
supplier's license. The supplier shall collect the tax imposed by
this subchapter from the person who orders the sale or transfer in
the bulk transfer terminal system.
(d) A tax is imposed on diesel fuel brought into this state
in the motor fuel supply tank or tanks of a motor vehicle operated
by a person required to be licensed as an interstate trucker.
(e) A tax is imposed on the blending of diesel fuel at the
point blended diesel fuel is made in Texas outside the bulk
transfer/terminal system. The blender shall pay the tax. The
number of gallons of blended diesel fuel on which the tax is payable
is the difference between the number of gallons of blended fuel made
and the number of gallons of previously taxed diesel fuel used to
make the blended fuel.
(f) The terminal operator in this state is considered a
supplier for the purpose of tax imposed under this subchapter
unless at the time of removal:
(1) the terminal operator has a valid terminal
operator's license issued for the facility from which the diesel
fuel is withdrawn;
(2) the terminal operator verifies that the person who
removes the diesel fuel has a valid supplier's license and the
terminal operator has no reason to believe that the supplier's
license is not valid.
(g) In each subsequent sale of diesel fuel on which the tax
has been collected, the amount of the tax shall be added to the
selling price so that the tax is paid ultimately by the person using
or consuming the diesel fuel. Diesel fuel is deemed to be used when
it is delivered into a fuel supply tank.
Sec. 162.202. TAX RATES. The diesel fuel tax rate is 20
cents for each net gallon or fractional part removed from the
terminal via the terminal rack other than by bulk transfer. The
diesel fuel rate for sales to commercial transit companies is 19.5
cents for each net gallon or fractional part removed from the
terminal via the terminal rack other than by bulk transfer.
Sec. 162.203. COMPUTATION OF THE TAX. The amount of the tax
shall be computed and paid over to the state on the net volume of
gallons of taxable diesel fuel as indicated in Section 162.201
multiplied by the rate set forth in Section 162.202.
Sec. 162.204. BACKUP TAX; LIABILITY. (a) A backup tax is
imposed at the rate specified in Section 162.202 in the following
circumstances:
(1) a person who obtains a refund of tax on diesel fuel
by claiming diesel fuel was used for an off-highway purpose, but
actually used the diesel fuel to operate a motor vehicle on the
highway;
(2) a person who operates a motor vehicle on a highway
vehicle using diesel fuel on which tax has not been paid. If the
motor vehicle is owned or leased by a person other than the
operator, then the tax shall be paid by either the operator or the
motor vehicle's owner or lessee;
(3) a person who sells diesel fuel to the ultimate
consumer on which a tax has not been paid and who knew or had reason
to know that the diesel fuel would be used for a taxable purpose.
The tax is imposed on the ultimate consumer.
(b) A person who sells diesel fuel in this state on which tax
has not been paid for any purpose other than those exempt under
Section 162.205 shall at the time of sale collect the tax from the
purchaser or recipient of diesel fuel in addition to the selling
price and is liable to the state for the taxes collected at the time
and in the manner provided by this chapter.
(c) Diesel fuel is deemed to be used when it is delivered
into a fuel supply tank.
(d) The tax liability imposed by this section shall be in
addition to any other penalty imposed pursuant to this subchapter.
Sec. 162.205. EXEMPTION. Sales of diesel fuel are exempt
from the tax imposed by this subchapter under the following
circumstances:
(1) sales to United States agencies and
instrumentalities for its exclusive use. This exemption shall not
apply with respect to fuel sold or delivered to any person operating
under contract with a United States governmental agency or
instrumentality.
(2) sales to a public school district in this state for
its exclusive use.
(3) sales to a commercial transportation company that
provides public school transportation services to a school district
under Section 34.008, Education Code, and that uses the diesel fuel
only to provide such services.
(4) all diesel fuel exported by either a licensed
supplier or licensed exporter from this state to any other state,
provided that the bill of lading indicates the destination state
and the supplier collects the destination state tax. This
exemption shall not apply to any diesel fuel that is transported and
delivered outside this state in the motor fuel supply tank of a
motor vehicle other than an interstate trucker.
(5) truck or railcar movements between licensed
suppliers or licensed permissive suppliers in which the diesel fuel
removed from the first terminal comes to rest in the second
terminal. The removal from the second terminal rack will be subject
to the tax imposed by this subchapter.
(6) delivered or sold into a storage facility of a
licensed aviation fuel dealer from which diesel fuel will be
delivered solely into the fuel supply tanks of aircraft or aircraft
servicing equipment; or sold from one licensed aviation fuel dealer
to another licensed aviation fuel dealer who will deliver the
aviation fuel exclusively into the fuel supply tanks of aircraft or
aircraft servicing equipment.
(7) exports to a foreign country where the bill of
lading indicates the foreign destination and the fuel is actually
exported to the foreign country.
(8) diesel fuel delivered by a licensee into fuel
supply tanks of railway engines, motorboats, or refrigeration units
or other stationary equipment powered by a separate motor from a
separate fuel supply tank.
(9) kerosene when delivered by a supplier,
distributor, or importer into a storage facility at a retail
business from which all deliveries are exclusively for heating,
cooking, lighting, or similar nonhighway use.
(10) diesel fuel sold by a supplier or distributor to a
person, other than a political subdivision, who owns, controls,
operates, or manages a commercial motor vehicle as defined by
Section 548.001, Transportation Code, if the fuel:
(A) is delivered exclusively into the fuel supply
tank of the commercial motor vehicle; and
(B) is used exclusively to transport passengers
for compensation or hire between points in this state on a fixed
route or schedule.
(11) dyed diesel fuel sold or delivered by a supplier
to another supplier and dyed diesel fuel sold or delivered by a
supplier or distributor into the bulk storage facility of a dyed
diesel fuel bonded user or to a purchaser who provides a signed
statement as provided by Section 162.207.
(12) the tax imposed by this subchapter does not apply
to the volume of water, fuel ethanol, biodiesel, or mixtures
thereof that are blended together with taxable diesel fuel when the
finished product sold or used is clearly identified on the retail
pump, storage tank, and sales invoice as a combination of diesel
fuel and water, fuel ethanol, biodiesel, or mixtures thereof.
(13) dyed diesel fuel sold by a supplier or permissive
supplier to a distributor, or by a distributor to another
distributor.
Sec. 162.206. PERSONS REQUIRED TO BE LICENSED. Persons
shall obtain the appropriate license or licenses issued by the
comptroller before conducting the activities of:
(1) supplier;
(A) a supplier who may act as a distributor,
importer, exporter, blender, motor fuel transporter, or aviation
fuel dealer without securing a separate license, but is subject to
all other conditions, requirements, and liabilities imposed on
those licensees.
(2) permissive supplier;
(A) a permissive supplier who may act as a
distributor, importer, exporter, blender, motor fuel transporter,
or aviation fuel dealer without securing a separate license but is
subject to all other conditions, requirements, and liabilities
imposed on those licensees.
(3) distributor;
(A) a distributor who may act as an importer,
exporter, blender, or motor fuel transporter without securing a
separate license, but is subject to all other conditions,
requirements, and liabilities imposed on those licensees.
(4) importer;
(A) an importer who may act as an exporter,
blender, or motor fuel transporter without securing a separate
license, but is subject to all other conditions, requirements, and
liabilities imposed on those licensees.
(5) terminal operator;
(6) exporter;
(7) blender;
(8) motor fuel transporter;
(9) aviation fuel dealer;
(10) an interstate trucker;
(11) dyed diesel fuel bonded user.
Sec. 162.207. STATEMENT FOR THE PURCHASE OF DYED DIESEL
FUEL. (a) The first removal of diesel fuel from a terminal in this
state is taxable, except the sale of dyed diesel fuel may be made
without collecting the tax if the purchaser furnishes to a licensed
supplier or distributor a signed statement, including an end user
number issued by the comptroller. A person who wants to use a
signed statement to purchase dyed diesel fuel must apply to the
comptroller for an end user number to be used in conjunction with a
signed statement. A licensed supplier or distributor may not make a
tax-free sale of any diesel fuel to a purchaser using a signed
statement unless the purchaser has an end user number issued by the
comptroller under this section. No taxable sales or removals of
dyed diesel fuel may be made under this chapter, except as
prescribed under Subsection (d).
(b) A sale of dyed diesel fuel may be made without
collecting the tax if the purchaser furnishes to a licensed
supplier or distributor a signed statement, including an end user
number issued by the comptroller, that stipulates that:
(1) all of the dyed diesel fuel purchased on the signed
statement will be consumed by the purchaser and will not be resold;
and
(2) none of the dyed diesel fuel purchased on the
signed statement will be delivered or licensed to be delivered into
the fuel supply tank of a motor vehicle operated on the public
highways of this state.
(c) A person may not make a tax-free purchase or a licensed
supplier may not make a tax-free sale to a purchaser of any dyed
diesel fuel under this section using a signed statement:
(1) for the purchase or sale of more than 7,400 gallons
of dyed diesel fuel in a single delivery; or
(2) in a calendar month in which the person has
previously purchased from all sources or the licensed supplier has
previously sold to that purchaser more than 15,000 gallons of dyed
diesel fuel:
(A) 10,000 gallons of dyed diesel fuel; or
(B) 25,000 gallons of dyed diesel fuel if the
purchaser stipulates in the signed statement that all of the fuel
will be consumed by the purchaser in agricultural off-highway
equipment or in the original production or to increase the
production of oil or gas and furnishes the supplier with a letter of
exception issued by the comptroller.
(d) Any gallons purchased or sold in excess of the
limitations prescribed by Subsection (c) constitute a taxable
purchase or sale. The purchaser paying the tax on diesel fuel in
excess of the limitations prescribed by Subsection (c) may claim a
refund of the tax paid on any dyed diesel fuel used for nonhighway
purposes under Section 162.228. A purchaser that exceeds the
limitations prescribed by Subsection (c) shall be required to
obtain a dyed diesel fuel bonded user license.
(e) The signed statement and end user number from the
purchaser as provided by this section relieves the licensed
supplier or distributor from the burden of proof that the sale of
dyed diesel fuel for a nonhighway purpose was not taxable to the
purchaser and remains in effect unless:
(1) the statement is revoked in writing by the
purchaser or licensed supplier or distributor;
(2) the comptroller notifies the licensed supplier or
distributor in writing that the purchaser may no longer make
tax-free purchases; or
(3) the licensed supplier or distributor is put on
notice by making taxable sales of dyed diesel fuel to a purchaser
who has previously furnished a signed statement to the licensed
supplier or distributor. The supplier is not put on notice when
taxable sales of dyed diesel fuel are made in accordance with
Subsection (d).
(f) The statement must be signed by the purchaser or the
purchaser's representative.
(g) The comptroller's regulations may allow separate
operating divisions of corporations to give separate signed
statements as if they were different legal entities.
(h) The comptroller may promulgate necessary forms and
rules to administer and enforce this section.
(i) A taxable use of any part of the dyed diesel fuel
purchased under a signed statement shall, in addition to any
criminal penalty, forfeit the right of the person to purchase dyed
diesel fuel tax-free for a period of one year from the date of the
offense, and any tax, interest, and penalty found to be due through
false or erroneous execution or continuance of a promissory
statement by the purchaser, if assessed to the licensed supplier or
distributor, is a debt of the purchaser to the licensed supplier or
distributor until paid and is recoverable at law in the same manner
as the purchase price of the fuel. The person may, however, claim a
refund of the tax paid on any dyed diesel fuel used for nonhighway
purposes under Section 162.228.
Sec. 162.208. TRIP PERMITS. (a) In lieu of an annual
interstate trucker's permit, a person bringing a motor vehicle
described by Section 162.001(41)(A), (B), or (C) into this state
for commercial purposes may obtain a trip permit. The trip permit
must be obtained before or at the time of entry into this state.
(b) No more than five trip permits for each person may be
issued during a calendar year.
(c) A fee for each trip permit shall be collected from the
applicant and shall be in the amount of $50 for each vehicle for
each trip.
(d) No reports are required with respect to the vehicle.
(e) Operating a motor vehicle without a valid interstate
trucker's or trip permit may subject the operator to a penalty under
Section 162.402.
Sec. 162.209. PERMISSIVE SUPPLIER REQUIREMENTS ON
OUT-OF-STATE REMOVALS. (a) A person may elect to obtain a
permissive supplier license to collect the tax imposed under this
subchapter for diesel fuel that is removed at a terminal in another
state and has Texas as the destination state.
(b) A licensed permissive supplier shall comply with all of
the following requirements with respect to diesel fuel that is
removed by that licensed permissive supplier at a terminal located
in another state and has Texas as the destination state:
(1) collect the tax due this state on the diesel fuel;
(2) waive any defense that this state lacks
jurisdiction to require the supplier to collect the tax due this
state on the diesel fuel under this subchapter;
(3) report and pay the tax due on the diesel fuel in
the same manner as if the removal had occurred at a terminal located
in Texas;
(4) keep records of the removal of the diesel fuel and
submit to audits concerning the diesel fuel as if the removal had
occurred at a terminal located in Texas; 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 Texas.
(c) A licensed permissive supplier must acknowledge in its
license application that this state imposes the requirements listed
in Subsection (b) under its general police power and that the
permissive supplier submits to the jurisdiction of this state only
for purposes related to the administration of this chapter.
Sec. 162.210. LICENSE APPLICATION PROCEDURE. (a) To
obtain a license under this subchapter, an applicant shall file an
application promulgated by the comptroller, which must contain the
following information:
(1) the name under which the applicant transacts or
intends to transact business;
(2) the principal office, residence, place of business
in Texas, or other location of the applicant;
(3) if the applicant is not an individual, the names of
the principal officers of an applicant corporation, or the names of
the members of an applicant partnership, and the office, street, or
post office addresses of each; and
(4) other information required by the comptroller.
(b) An applicant for a license as a supplier, permissive
supplier, or terminal operator shall have a federal certificate of
registry issued under 26 U.S.C. Section 4101 that authorizes the
applicant to enter into federal tax-free transactions of diesel
fuel in the bulk 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, exporter, or distributor who has a federal certificate of
registry issued under 26 U.S.C. Section 4101 shall include the
registration number of the certificate on the application for a
license under this section.
(c) An applicant for a license as an importer or distributor
shall list on the application each state from which the applicant
intends to import diesel fuel and, if required by a state listed,
shall be licensed or registered for diesel 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.
(d) An applicant for a license as an exporter shall
designate an agent located in Texas 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 diesel fuel received in
Texas by means of a transfer that is outside the bulk
terminal/transfer system and, if required by a state listed, shall
be licensed or registered for diesel 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.
(e) 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 diesel 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.
(f) An application for a license as a dyed diesel fuel
bonded user is required for any purchases of dyed diesel fuel in
excess of the limitations in Section 162.207(d). This section does
not affect the right of a purchaser to purchase not more than 25,000
gallons of dyed diesel fuel for the purchaser's own use in oil or
gas production, or of dyed diesel fuel for the purchaser's own use
for agricultural purposes only, using a signed statement under
Section 162.207.
Sec. 162.211. ISSUANCE AND DISPLAY OF LICENSE. (a) Upon
approval of an application, the comptroller shall issue to the
applicant a license that must be posted in a conspicuous place or
kept available for inspection at the principal place of business of
the owner. A copy of the license must be kept at each place of
business or other place of storage from which diesel fuel is sold,
distributed, or used, and in each motor vehicle used by the license
holder to transport diesel fuel purchased by the license holder for
resale, distribution, or use.
(b) A person holding an interstate trucker's license shall
reproduce the license and carry a photocopy with each motor vehicle
being operated into or from the state.
Sec. 162.212. LICENSES: PERIODS OF VALIDITY. (a) The
license issued to a supplier, permissive supplier, distributor,
importer, exporter, blender, motor fuel transporter, or dyed diesel
fuel bonded user is permanent and is valid so long as the licensee
has in force and effect the required bond or security and furnishes
timely reports and supplements as required, or until the license is
surrendered by the holder or canceled by the comptroller. The
comptroller shall cancel a license under this subsection if no
purchase, sale, or use of diesel fuel has been reported by the
licensee for the prior nine months.
(b) The license issued to an aviation fuel dealer is
permanent and is valid until the license is surrendered by the
holder or canceled by the comptroller.
(c) The license issued to an interstate trucker is valid
from the date of its issuance through December 31 of each calendar
year or until the license is surrendered by the holder or canceled
by the comptroller. The comptroller may renew the license for each
ensuing calendar year if the licensee furnishes timely reports as
required.
(d) A trip permit is valid for the period stated on it as
determined by the comptroller.
(e) All licenses issued under this subchapter shall not be
transferable.
Sec. 162.213. BOND AND OTHER SECURITY FOR TAXES. (a) The
comptroller shall determine the amount of security required of a
supplier, permissive supplier, distributor, exporter, importer,
blender, or dyed diesel fuel bonded user, taking into consideration
the amount of tax that has or is expected to become due from the
person, any past history of the person as a licensee under this
chapter, and the necessity to protect the state against the failure
to pay the tax as it becomes due.
(b) If it is determined that the posting of security is
necessary to protect the state, the comptroller may require a
licensee to post a bond. A licensee shall post a bond equal to two
times the maximum amount of tax that could accrue on tax-free diesel
fuel purchased or acquired during a reporting period. The minimum
bond is $30,000, except that for a dyed diesel fuel bonded user the
minimum is $10,000. The maximum bond is $600,000 unless the
comptroller believes there is undue risk of loss of tax revenues, in
which event the comptroller may require one or more bonds or
securities in a total amount exceeding $600,000.
(c) A licensee who has filed a bond or other security under
this subchapter is exempted from the bond or other security
requirements of this subchapter and is entitled, on request, to
have the comptroller return, refund, or release the bond or
security if in the judgment of the comptroller the person has for
four consecutive years continuously complied with the conditions of
the bond or other security filed under this subchapter. However, if
the comptroller determines that the revenues of the state would be
jeopardized by the return, refund, or release of the bond or
security, the comptroller may elect not to return, refund, or
release the bond or security and may reimpose a requirement of a
bond or other security as the comptroller determines necessary to
protect the revenues of the state.
(d) A bond must be a continuing instrument, must constitute
a new and separate obligation in the penal sum named in the bond for
each calendar year or portion of a year while the bond is in force,
and must remain in effect until the surety on the bond is released
and discharged.
(e) In lieu of filing a surety bond, an applicant for a
license may substitute the following security:
(1) cash in the form of U.S. currency in an amount
equal to the required bond to be deposited in the suspense account
of the state treasury;
(2) an assignment to the comptroller of a certificate
of deposit in any bank or savings and loan association in Texas that
is a member of the FDIC in an amount at least equal to the bond
amount required; or
(3) an irrevocable letter of credit to the comptroller
from any bank or savings and loan association in Texas that is a
member of the FDIC in an amount of credit at least equal to the bond
amount required.
(f) If the amount of an existing bond becomes insufficient
or a security becomes unsatisfactory or unacceptable, the
comptroller may require the filing of a new or additional bond or
security.
(g) No surety bond or other form of security may be released
until it is determined by examination or audit that no tax, penalty,
or interest liability exists. The cash or securities shall be
released within 60 days after the comptroller determines that no
liability exists.
(h) The comptroller may use the cash or certificate of
deposit security to satisfy a final determination of delinquent
liability or a judgment secured in any action by this state to
recover diesel fuel taxes, costs, penalties, and interest found to
be due this state by a person in whose behalf the cash or
certificate security was deposited.
(i) A surety on a bond furnished by a licensee shall be
released and discharged from liability to the state accruing on the
bond after the expiration of 30 days after the date on which the
surety files with the comptroller a written request to be released
and discharged. The request does not relieve, release, or
discharge the surety from a liability already accrued, or that
accrues before the expiration of the 30-day period. The
comptroller, promptly on receipt of the request, shall notify the
licensee who furnished the bond, and unless the licensee, before
the expiration date of the existing security, files with the
comptroller a new bond with a surety company duly authorized to do
business under the laws of the state, or other authorized security,
in the amount required in this section, the comptroller shall
cancel the license in the manner provided by this chapter.
(j) The comptroller shall notify immediately the issuer of a
letter of credit of a final determination of the distributor's
delinquent liability or a judgment secured in any action by this
state to recover diesel fuel taxes, costs, penalties, and interest
found to be due this state by a distributor in whose behalf the
letter of credit was issued. The letter of credit allowed as
security for the remittance of taxes under this subchapter shall
contain a statement that the issuer agrees to respond to the
comptroller's notice of liability with amounts to satisfy the
comptroller's delinquency claim against the distributor.
(k) A licensee may request an examination or audit to obtain
release of the security when the licensee relinquishes the license
or when the licensee desires to substitute one form of security for
an existing one.
Sec. 162.214. LICENSEE STATUS LIST. (a) The comptroller,
on or before December 20 of each year, shall make available to all
licensees an alphabetical list of licensed suppliers, permissive
suppliers, distributors, aviation fuel dealers, importers,
exporters, blenders, terminal operators, and dyed diesel fuel
bonded users. A supplemental list of additions and deletions shall
be made available to the licensees each month. A current and
effective license or the list furnished by the comptroller is
evidence of the validity of the license until the comptroller
notifies licensees of a change in the status of a license holder.
(b) A licensed supplier or permissive supplier who sells
diesel fuel tax-free to a supplier or permissive supplier, or who
sells dyed diesel fuel to a dyed diesel fuel bonded user, whose
license has been canceled or revoked under this section, shall be
liable for any tax due on diesel fuel sold subsequent to receipt of
the notice.
(c) The comptroller shall notify all licensees under this
chapter when the license is subsequently reinstated and the
effective date thereof. Sales to a supplier, permissive supplier,
distributor, or dyed diesel fuel bonded user after the effective
date of the reinstatement may be made tax-free.
Sec. 162.215. REMITTANCE OF TAX TO SUPPLIER OR PERMISSIVE
SUPPLIER; ALLOWANCES. (a) Each licensed distributor and licensed
importer shall remit to the supplier or permissive supplier, as
applicable, the tax imposed by Section 162.201 for diesel fuel
removed at a terminal rack. A licensed distributor or licensed
importer may elect to defer payment of the tax to the supplier or
permissive supplier until two days prior to the date the supplier or
permissive supplier is required to remit the tax to this state,
including those taxes due on diesel fuel destined for export, and
the payment shall be by electronic funds transfer. The supplier or
permissive supplier shall notify a licensed distributor or licensed
importer in writing within 10 days of the date the supplier remitted
taxes to the state of the licensed distributor's or licensed
importer's failure to remit taxes for diesel fuel removed from the
terminal by the licensed distributor or licensed importer. If the
supplier or permissive supplier is unable to secure payment of
taxes from the licensed distributor or licensed importer due for
diesel fuel removed from the terminal during the previous reporting
period and the supplier elects to take a credit against a subsequent
payment of gasoline tax to the state for the taxes not remitted to
the supplier or permissive supplier by the licensed distributor or
licensed importer, the supplier or permissive supplier shall notify
the comptroller of the licensed distributor's or licensed
importer's failure to remit tax in conjunction with the report
requesting a credit. The supplier shall have the right, after
notifying the comptroller of the licensed distributor's or licensed
importer's failure to remit taxes under this subsection, to
terminate the ability of the licensed distributor or licensed
importer to defer the payment of diesel fuel tax. The right of the
licensed distributor or licensed importer to defer the payment of
gasoline tax shall be reinstated without delay by the supplier or
permissive supplier after the licensed distributor or licensed
importer has provided the supplier notice that it has satisfied
that alleged tax deficiency leading to the termination of the
licensed distributor's or licensed importer's ability to defer the
payment of tax. A supplier or permissive supplier, or their
representative, that conducts electronic transactions to a draft
account of licensed distributors or licensed importers for the
payment of taxes due under this subsection shall provide at least
two days' notice via electronic means of the amount to be drafted
from the account of the licensed distributor or licensed importer,
as well as the account number to be drafted.
(b) A licensed distributor or licensed importer who makes
timely payments is entitled to retain 1.75 percent of the total
taxes to be paid to the supplier or permissive supplier to cover
administrative expenses.
(c) The license of a distributor, exporter, or importer who
fails to pay the full amount of tax required by this subchapter is
subject to cancellation as outlined in Section 162.005.
Sec. 162.216. REPORTS AND PAYMENTS. (a) Except as provided
by Subsection (b), each person who is liable for the tax imposed by
this subchapter, a terminal operator, and a licensed distributor
shall file a return on or before the 25th day of the month following
the end of each calendar quarter.
(b) A motor fuel transporter, interstate trucker, and dyed
diesel fuel bonded user shall file a return on or before the 25th
day of the month following the end of the calendar quarter.
(c) The return required by this section shall be accompanied
by a payment for the amount of tax reported due.
(d) An aviation fuel dealer is not required to file a
return.
Sec. 162.217. RECORDS. (a) A supplier and permissive
supplier shall keep:
(1) a record showing the number of gallons of:
(A) all diesel fuel inventories on hand at the
first of each month;
(B) all diesel fuel refined, compounded, or
blended;
(C) all diesel fuel purchased or received,
showing the name of the seller and date of each purchase or receipt;
(D) all diesel fuel sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(E) all diesel fuel lost by fire, theft, or
accident; and
(2) an itemized statement showing by load the number
of gallons of all diesel fuel:
(A) received during the preceding calendar month
for export and the location of the loading;
(B) exported from this state by destination state
or country; and
(C) imported during the preceding calendar
month, by state or country of origin.
(b) A distributor shall keep:
(1) a record showing the number of gallons of:
(A) all diesel fuel inventories on hand at the
first of each month;
(B) all diesel fuel blended;
(C) all diesel fuel purchased or received,
showing the name of the seller and date of each purchase or receipt;
(D) all diesel fuel sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(E) all diesel fuel lost by fire, theft, or
accident; and
(2) an itemized statement showing by load the number
of gallons of all diesel fuel:
(A) received during the preceding calendar month
for export and the location of the loading;
(B) exported from this state by destination state
or country; and
(C) imported during the preceding calendar
month, by state or country of origin.
(c) An importer shall keep:
(1) a record showing the number of gallons of:
(A) all diesel fuel inventories on hand at the
first of each month;
(B) all diesel fuel compounded or blended;
(C) all diesel fuel purchased or received,
showing the name of the seller and date of each purchase or receipt;
(D) all diesel fuel sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(E) all diesel fuel lost by fire, theft, or
accident; and
(2) an itemized statement showing by load the number
of gallons of all diesel fuel:
(A) received during the preceding calendar month
for export and the location of the loading;
(B) exported from this state, by destination
state or country; and
(C) imported during the preceding calendar
month, by state or country of origin.
(d) An exporter shall keep:
(1) a record showing the number of gallons of:
(A) all diesel fuel inventories on hand at the
first of each month;
(B) all diesel fuel compounded or blended;
(C) all diesel fuel purchased or received,
showing the name of the seller and date of each purchase or receipt;
(D) all diesel fuel sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(E) all diesel fuel lost by fire, theft, or
accident; and
(2) an itemized statement showing by load the number
of gallons of all diesel fuel:
(A) received during the preceding calendar month
for export and the location of the loading;
(B) exported from this state, by destination
state or country.
(e) A blender shall keep:
(1) a record showing the number of gallons of:
(A) all diesel fuel inventories on hand at the
first of each month;
(B) all diesel fuel compounded or blended;
(C) all diesel fuel purchased or received,
showing the name of the seller and date of each purchase or receipt;
(D) all diesel fuel sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(E) all diesel fuel lost by fire, theft, or
accident.
(f) A terminal operator shall keep:
(1) a record showing the number of gallons of:
(A) all diesel fuel inventories on hand at the
first of each month, including the name and license number of each
owner and the amount of diesel fuel held for each owner;
(B) all diesel fuel received, showing the name of
the seller and date of each purchase or receipt;
(C) all diesel fuel sold, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
(D) all diesel fuel lost by fire, theft, or
accident; and
(2) an itemized statement showing by load the number
of gallons of all diesel fuel:
(A) received during the preceding calendar month
for export and the location of the loading;
(B) exported from this state, by destination
state or country; and
(C) imported during the preceding calendar
month, by state or country of origin.
(g) A motor fuel transporter shall keep:
(1) a complete and separate record of each intrastate
and interstate transportation of diesel fuel, showing:
(A) the date of transportation;
(B) the name of the consignor and consignee;
(C) the means of transportation;
(D) the quantity and kind of diesel fuel
transported;
(E) full data concerning the diversion of
shipments, including the number of gallons diverted from interstate
to intrastate and intrastate to interstate commerce; and
(F) the points of origin and destination, the
number of gallons shipped or transported, the date, the consignee
and the consignor, and the kind of diesel fuel that has been
diverted.
(h) A dealer shall keep a record showing the number of
gallons of:
(1) diesel fuel inventories on hand at the first of
each month;
(2) all diesel fuel purchased or received, showing the
name of the seller and the date of each purchase or receipt;
(3) all diesel fuel sold or used, showing the date of
the sale or use; and
(4) all diesel fuel lost by fire, theft, or accident.
(i) An interstate trucker shall keep a record of:
(1) the total miles traveled in all states by all
vehicles traveling into or from Texas and the total quantity of
diesel fuel consumed in those vehicles; and
(2) the total miles traveled in Texas and the total
quantity of diesel fuel purchased and delivered into the fuel
supply tanks of motor vehicles in Texas.
(j) An aviation fuel dealer shall keep a record showing the
number of gallons of:
(1) all diesel fuel inventories on hand at the first of
each month;
(2) all diesel fuel purchased or received, showing the
name of the seller and date of each purchase or receipt;
(3) all diesel fuel sold or used in aircraft or
aircraft servicing equipment; and
(4) all diesel fuel lost by fire, theft, or accident.
(k) The records of an aviation fuel dealer made under
Subsection (j)(3) must show:
(1) the name of the purchaser or user of diesel fuel;
(2) the date of the sale or use of diesel fuel; and
(3) the registration or "N" number of the airplane or a
description or number of the aircraft or a description or number of
the aircraft servicing equipment in which diesel fuel is used.
(l) A dyed diesel fuel bonded user shall keep a record
showing the number of gallons of:
(1) dyed and undyed diesel fuel inventories on hand at
the first of each month;
(2) dyed and undyed diesel fuel purchased or received,
showing the name of the seller and date of each purchase or receipt;
(3) dyed and undyed diesel fuel delivered into the
fuel supply tanks of motor vehicles, and used in off-highway
equipment or for other nonhighway purposes; and
(4) dyed and undyed diesel fuel lost by fire, theft, or
accident.
(m) The comptroller may require selective schedules from a
supplier, permissive supplier, distributor, importer, exporter,
blender, terminal operator, motor fuel transporter, dealer,
aviation fuel dealer, and interstate trucker for any purchases,
sales, or deliveries of diesel fuel when the schedules are not
inconsistent with the requirements of this chapter.
(n) The records required must be kept for four years and are
open to inspection at all times by the comptroller and the attorney
general.
Sec. 162.218. INFORMATION REQUIRED ON SUPPLIER'S AND
PERMISSIVE SUPPLIER'S RETURN. (a) The monthly return and
supplements of each supplier and permissive supplier shall contain
all of the following information for the period covered by the
return and any other information required by the comptroller:
(1) the number of net gallons of tax-paid diesel fuel
received by the supplier or permissive supplier during the month,
sorted by product code, seller, point of origin, destination state,
carrier, and receipt date;
(2) the number of net gallons of diesel fuel removed at
a terminal rack during the month from the account of the supplier,
sorted by product code, person receiving the diesel fuel, terminal
code, and carrier;
(3) the number of net gallons of diesel fuel removed
during the month for export, sorted by product code, person
receiving the diesel fuel, terminal code, destination state, and
carrier;
(4) the number of net gallons of diesel fuel removed
during the month from a terminal located in another state for
conveyance to Texas, as indicated on the shipping document for the
diesel fuel, sorted by product code, person receiving the diesel
fuel, terminal code, and carrier; and
(5) the number of net gallons of diesel fuel the
supplier or permissive supplier sold during the month in
transactions exempt under Section 162.205, sorted by product code,
carrier, purchaser, and terminal code.
(6) the number of net gallons of diesel fuel sold in
the bulk transfer/terminal system in this state to any person not
holding a supplier's or permissive supplier's license.
(b) A supplier or permissive supplier that timely pays the
tax to the state may deduct, from the amount of tax due, a
collection allowance of two percent of the amount of tax payable to
this state.
(c) A supplier or permissive supplier may take a credit for
any taxes that were not remitted in a previous period to the
supplier or permissive supplier by any licensed distributor or
licensed importer as required under Section 162.215. The licensed
supplier or permissive supplier is eligible to take this credit if
the comptroller is notified within 60 days after the default
occurred. If a licensee pays to a supplier or permissive supplier
the tax owed, but the payment occurs after the supplier or
permissive supplier has taken a credit on its return, the supplier
or permissive supplier shall remit the payment to the comptroller
with the next monthly return subsequent to receipt of the tax.
Sec. 162.219. DUTIES OF SUPPLIER OR PERMISSIVE SUPPLIER.
(a) A supplier or permissive supplier who receives or collects tax
holds the amount so collected in trust for the benefit of the state
and has a fiduciary duty to remit to the comptroller the amount of
tax received or collected.
(b) A supplier or permissive supplier shall furnish the
purchaser with an invoice, bill of lading, or other documentation
as evidence of the number of gallons received by the purchaser.
(c) 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 diesel fuel purchased from the supplier
or permissive supplier.
Sec. 162.220. INFORMATION REQUIRED ON A DISTRIBUTOR'S
RETURN. The monthly return and supplements of each distributor
shall contain all of the following information for the period
covered by the return and any other information required by the
comptroller:
(1) the number of net gallons of tax-paid diesel fuel
received by the distributor during the month, sorted by product
code, seller, point of origin, destination state, carrier, and
receipt date;
(2) the number of net gallons of diesel fuel removed at
a terminal rack by the distributor during the month, sorted by
product code, seller, terminal code, and carrier;
(3) the number of net gallons of diesel fuel removed by
the distributor during the month for export, sorted by product
code, terminal code, bulk plant address, destination state, and
carrier;
(4) the number of net gallons of diesel fuel removed by
the distributor during the month from a terminal located in another
state for conveyance to Texas, as indicated on the shipping
document for the diesel fuel, sorted by product code, seller,
terminal code, bulk plant address, and carrier; and
(5) the number of net gallons of diesel fuel the
distributor sold during the month in transactions exempt under
Section 162.205, dyed diesel fuel sold to a purchaser under signed
statement or to a dyed diesel fuel bonded user, sorted by product
code, and entity receiving the diesel fuel.
Sec. 162.221. INFORMATION REQUIRED ON IMPORTER'S RETURNS.
(a) The monthly return and supplements of an importer shall contain
the following information for the period covered by the return and
any other information required by the comptroller:
(1) the number of net gallons of imported diesel fuel
acquired from a supplier or permissive supplier who collected the
tax due this state on the diesel fuel;
(2) the number of net gallons of imported diesel fuel
acquired from a person who did not collect the tax due this state on
the diesel fuel, listed by product code, source state, person, and
terminal;
(3) the number of net gallons of imported diesel fuel
acquired from a bulk plant outside this state, listed by bulk plant
name, address and by product code.
(b) An importer of diesel fuel that timely files a return
and payment may deduct, from the amount of tax payable with the
return, a collection allowance of two percent of the amount of tax
payable to this state.
Sec. 162.222. INFORMATION REQUIRED ON TERMINAL OPERATOR'S
RETURN. (a) A terminal operator shall file with the comptroller a
monthly information return and supplement showing the amount of
diesel fuel received and removed from the terminal during the
month. The return shall contain the following summary information
and any other summary information required by the comptroller:
(1) the beginning and ending inventory that pertains
to the applicable reporting month;
(2) the number of net gallons of diesel fuel received
in inventory at the terminal during the month; and
(3) the number of net gallons of diesel fuel removed
from inventory at the terminal during the month.
(b) The comptroller may accept the Federal ExSTARS terminal
operator report provided to the Internal Revenue Service in lieu of
the required state terminal operator report.
Sec. 162.223. INFORMATION REQUIRED ON MOTOR FUEL
TRANSPORTER'S RETURN. The quarterly return and supplements of a
motor fuel transporter shall contain the following information for
the period covered by the return and any other information required
by the comptroller:
(1) the name, license number, and terminal control
number of each person or terminal from whom the transporter
received diesel fuel outside Texas for delivery in Texas, the gross
gallons of diesel fuel received, the date the diesel fuel was
received, the product code, and the name and license number of the
purchaser of the diesel fuel; and
(2) the name, license number, and terminal control
number of each person or terminal from whom the transporter
received diesel fuel in Texas for delivery outside Texas, the gross
gallons of diesel fuel delivered, the date the diesel fuel was
delivered, the product code, and the destination state of the
diesel fuel.
Sec. 162.224. INFORMATION REQUIRED ON EXPORTER'S RETURN.
(a) The number of net gallons of diesel fuel acquired from a
supplier and exported during the month, including supplier name,
terminal control number, and product code;
(b) The number of net gallons of diesel fuel acquired from a
bulk plant and exported during the month , including bulk plant name
and product code;
(c) The destination state of the diesel fuel exported during
the month.
Sec. 162.225. INFORMATION REQUIRED ON BLENDER'S RETURN.
The monthly return and supplements of each blender shall contain
all of the following information for the period covered by the
return and any other information required by the comptroller:
(1) the number of net gallons of tax-paid diesel fuel
received by the blender during the month, sorted by product code,
seller, point of origin, carrier, and receipt date;
(2) the number of net gallons of product blended with
diesel fuel during the month, sorted by product code, type of
blending agent if no product code exists, seller, and carrier;
(3) the number of net gallons of blended diesel fuel
sold during the month and license number or entity name and address
receiving the blended diesel fuel;
Sec. 162.226. INFORMATION REQUIRED ON INTERSTATE TRUCKER'S
RETURN. The quarterly return and supplements of each interstate
trucker shall contain all of the following information for the
period covered by the return and any other information required by
the comptroller:
(1) the total miles traveled in all states by all
vehicles traveling into or from Texas and the total quantity of
diesel fuel consumed in those vehicles; and
(2) the total miles traveled in Texas and the total
quantity of diesel fuel purchased and delivered into the fuel
supply tanks of motor vehicles in Texas.
Sec. 162.227. INFORMATION REQUIRED ON DYED DIESEL FUEL
BONDED USER'S RETURN. The quarterly return and supplements of each
dyed diesel fuel bonded user shall contain all of the following
information for the period covered by the return and any other
information required by the comptroller:
(1) the number of net gallons of tax-free dyed diesel
fuel received by the dyed diesel fuel bonded user during the
quarter, sorted by product code and receipt date;
(2) the number of net gallons of dyed diesel fuel used
by the dyed diesel fuel bonded user during the quarter, sorted by
product code.
Sec. 162.228. REFUNDS OF TAXES PAID ON EXCEPTED USES OF
DIESEL FUEL. (a) A licensee may take a credit on a return for the
period in which the sale occurred and a non-licensee may file a
refund claim with the comptroller if the licensee or non-licensee
paid tax on the purchase of diesel fuel and subsequently resells the
tax-paid diesel fuel in any one of the following circumstances:
(1) sale to the United States government, its
agencies, and its instrumentalities for their exclusive use. No
refund shall be allowed for gasoline used by any person operating
under contract with the United States governmental agency or its
instrumentalities.
(2) sale to a public school district in this state for
its exclusive use.
(3) sale by a licensed distributor to a licensed
exporter who subsequently exports the diesel fuel to another state,
provided that the exporter has paid any applicable diesel fuel tax
to the destination state prior to a license distributor claiming
this refund.
(4) sale by a licensed distributor to a licensed
aviation fuel dealer.
(5) sale to a commercial transportation company that
provides public school transportation services to a school district
under Section 34.008, Education Code, and used exclusively to
provide those services.
(6) truck or railcar movements between licensed
suppliers or licensed permissive suppliers in which the diesel fuel
removed from the first terminal comes to rest in the second terminal
and tax was paid on the first removal. The licensee who receives
the diesel fuel in the second terminal may claim the refund.
(b) A licensee may take a credit on a return for the period
in which the sale occurred, and a non-licensee may file a refund
claim with the comptroller, if the licensee or non-licensee paid
tax and subsequently uses the tax-paid diesel fuel as follows:
(1) diesel fuel used by the United States government,
its agencies and its instrumentalities for its exclusive use. No
refund shall be allowed for diesel fuel used by any person operating
under a contract with the United States governmental agency or its
instrumentalities.
(2) diesel fuel used by a public school district in
this state for its exclusive use.
(3) diesel fuel used by a licensed aviation fuel
dealer and delivered into the fuel supply tanks of aircraft or
aircraft servicing equipment.
(4) diesel fuel used by a commercial transportation
company that provides public school transportation services to a
school district under Section 34.008, Education Code, and used
exclusively to provide those services.
(5) diesel fuel used outside the state by a licensed
interstate trucker in commercial vehicles operated under an
interstate trucker license. Any credit or refund claimed under
this subdivision must be taken or filed within the limitations
period as provided by Section 162.229.
(6) diesel fuel used in this state by auxiliary power
units or power take-off equipment on any motor vehicle, if such use
can be accurately measured while the motor vehicle is stationary by
any metering or other measuring device or method designed to
measure the fuel separately from fuel used to propel or idle the
motor vehicle. The comptroller may approve and adopt the use of any
device as a basis for determining the quantity of diesel fuel
consumed in those operations for tax credit or tax refund. The
climate-control air conditioning or heating system of a motor
vehicle with a primary purpose of providing for the convenience or
comfort of the operator or passengers is not a power take-off system
and no refund will be allowed for the diesel fuel tax paid on any
portion of the diesel fuel that is used for this purpose. No refund
will be allowed for the diesel fuel tax paid on that portion of the
diesel fuel that is used for idling.
(c) A distributor or non-licensee who files a valid refund
claim with the comptroller shall be paid by a check issued by the
comptroller.
(d) A person who paid tax on the purchase of diesel fuel may
claim a credit or seek a refund with the comptroller if diesel fuel
of 100 or more gallons is subsequently exported or lost by fire,
theft, or accident. Any credit or refund claimed under this
subsection must be taken or filed within the limitations period as
provided by Section 162.229.
(e) The right to receive a refund under this section is not
assignable.
(f) The comptroller may adopt rules specifying procedures
and requirements that must be followed in connection with claiming
a credit or refund under this section.
Sec. 162.229. REFUNDS/CREDITS FOR BAD DEBTS. (a) A
permitted distributor may file a refund claim with the comptroller
if:
(1) the distributor has paid the taxes imposed by this
subchapter sold on account;
(2) the distributor determines that the account is
uncollectable and worthless;
(3) at the time of the transaction, the person to whom
the distributor sold the diesel fuel held a permit issued by the
comptroller, and
(4) the account is written off as a bad debt on the
accounting books of the distributor.
(b) A terminal supplier may take a credit on the monthly
report to be filed with the comptroller if:
(1) on a previous report the terminal supplier paid
the taxes imposed by this subchapter on diesel fuel sold on account;
(2) the person to whom the terminal supplier sold the
diesel fuel has not remitted the tax to the terminal supplier; and
(3) at the time of the transaction the person to whom
the terminal supplier sold the diesel fuel held a permit issued by
the comptroller.
(c) The return on which the credit is taken or the refund
claimed must state the permit number of the person whose account has
been written off as a bad debt and any other information required by
the comptroller. The amount of the refund that may be claimed under
Subsection (a) or (b) may equal but may not exceed the amount of
taxes paid on the diesel fuel to which the written-off account
applies.
(d) If, after a credit is taken or a refund is received under
Subsection (a) or (b), the account on which the credit or refund was
based is paid, or if the comptroller otherwise determines that the
credit or refund was not authorized by Subsection (a) or (b), the
unpaid taxes shall be paid by the terminal supplier or distributor
taking the credit or receiving the refund, plus a penalty of 10
percent of the amount of the unpaid taxes and interest at the rate
provided by Section 111.060 beginning on the day that the credit was
taken or the refund was issued.
(e) This section does not apply to a sale of diesel fuel that
is delivered into the fuel supply tank of a motor vehicle or a
motorboat and for which payment is made through the use and
acceptance of a credit card.
(f) A refund under this section must be claimed at the time
the account is written off as a bad debt but may only be claimed
before the expiration of the applicable limitation period as
provided by Chapter 111. A credit under this section must be taken
on either the first or second monthly report of a terminal supplier
following the monthly report on which the terminal supplier paid
the tax.
(g) The comptroller may take action against a person in
relation to whom a distributor or supplier has made a refund claim
or taken a credit for collection of the tax owed and for penalty and
interest provided by Chapter 111.
(h) The amount of the credit that may be taken under this
section may equal but may not exceed the amount of taxes paid on the
diesel fuel to which the written-off account applies.
(i) If the licensed supplier or permissive supplier
receives any portion of the amount written off as a bad debt under
Subsection (a), then the licensed supplier or permissive supplier
shall report and pay the tax on the portion during the reporting
period in which the payment is received.
(j) A commercial transit company who paid tax on the
purchase of diesel fuel may seek a refund with the comptroller of
one-half of one cent per gallon for diesel fuel used in transit
vehicles.
(k) If the comptroller determines that a credit taken on a
return was not authorized or was invalid, the comptroller may
assess or recover from the licensed supplier or permissive supplier
the amount of tax taken as credit, plus any accrued penalties and
interest on the amount.
(l) This section does not apply to a sale of diesel fuel that
is delivered into the fuel supply tank of a motor vehicle or a
motorboat and for which payment is made through the use and
acceptance of a credit card.
Sec. 162.230. CLAIMS FOR REFUNDS. (a) A refund claim must
be filed on a form provided by the comptroller, be supported by the
original invoice issued by the seller, and contain:
(1) the stamped or preprinted name and address of the
seller;
(2) the name of the purchaser;
(3) the date of delivery of the diesel fuel;
(4) the date of the issuance of the invoice (if
different from the date of fuel delivery);
(5) the number of gallons of diesel fuel delivered;
(6) the amount of tax, either separately stated from
the selling price or a notation that the selling price includes the
tax; and
(7) the type of vehicle or equipment, such as a
motorboat, railway engine, motor vehicle, off-highway vehicle,
refrigeration unit, or stationary engine into which the fuel is
delivered.
(b) The purchaser must obtain the original invoice from the
seller of diesel fuel no later than 30 days after the date of
delivery of the diesel fuel. If the delivery of diesel fuel is made
through an automated method whereby the purchase is automatically
applied to the purchaser's account, one invoice may be issued at the
time of billing covering multiple purchases made during a 30-day
billing cycle.
(c) A distribution log filed with the comptroller to support
the number of gallons of diesel fuel removed from a user's own bulk
storage must contain the name and address of the bulk user making
the delivery stamped or preprinted on the log and, for each
individual delivery from the bulk storage, the following:
(1) the date;
(2) the number of gallons of diesel fuel;
(3) the signature of the user; and
(4) the type or description of off-highway equipment
into which the diesel fuel is delivered, or the type of licensed
motor vehicle into which the diesel fuel is delivered, including,
but not limited to, state highway license plate number or vehicle
identification number, and odometer or hubmeter reading.
(d) Inventories of all diesel fuel on hand at the first of
each month.
(e) A person who files a claim for a tax refund on diesel
fuel used for a purpose for which a tax refund is not authorized or
who files an invoice supporting a refund claim on which the date,
figures, or any material information has been falsified or altered
forfeits the person's right to the entire amount of the refund claim
filed unless the claimant provides proof satisfactory to the
comptroller that the incorrect refund claim filed was due to a
clerical or mathematical calculation error.
(f) After examination of the refund claim, the comptroller
before issuing a refund warrant shall deduct from the amount of the
refund the two percent deducted originally by the licensee on the
first sale or distribution of the diesel fuel.
Sec. 162.231. WHEN DIESEL FUEL TAX REFUND MAY BE FILED. (a)
Unless otherwise provided by this section, a claim for a refund must
be filed with the comptroller within one year after the first day of
the calendar month following the purchase, use, delivery, export,
or loss by fire, theft, or accident of diesel fuel, whichever period
expires latest.
(b) If the amount of credit that the interstate trucker is
entitled to take under Section 162.226 of this subchapter exceeds
the amount of tax due on that reporting period, the excess credit
amount may be claimed on any of the three successive quarterly
returns following the period in which the credit was established or
the interstate trucker may file a refund claim with the comptroller
on or before the due date of the third successive quarterly return
following the period in which the credit was established. Any
credit that is not claimed within the period prescribed in this
subsection expires.
(c) If the comptroller assesses a supplier or permissive
supplier for tax-free sale that is taxable, and the supplier or
permissive supplier subsequently collects the tax from the
purchaser, the purchaser may file a refund claim within one year
from the date the supplier's or permissive supplier's deficiency
assessment becomes final if the purchaser used the diesel fuel in an
exempt manner.
(d) A supplier or permissive supplier that determines taxes
were erroneously reported and remitted or that paid more taxes than
were due this state because of a mistake of fact or law may take a
credit on the monthly tax report on which the error has occurred and
tax payment made to the comptroller. The credit must be taken
before the expiration of the applicable period of limitation as
provided by Chapter 111.
Sec. 162.232. NOTICE REGARDING DYED DIESEL FUEL. A notice
stating "DYED DIESEL FUEL, NONTAXABLE USE ONLY, PENALTY FOR TAXABLE
USE" must be:
(1) provided by a licensed supplier, permissive
supplier, or distributor to a person who receives dyed diesel fuel;
(2) provided by a seller of dyed diesel fuel to the
person's buyer; and
(3) posted by a seller on a retail pump or bulk plant
at which the person sells dyed diesel fuel for use by the person's
buyers.
Sec. 162.233. DYED DIESEL FUEL NOTICE REQUIRED ON SHIPPING
DOCUMENTS, BILLS OF LADING, AND INVOICES. The form of notice
required by Sections 162.232(1) and (2) must be provided when the
dyed diesel fuel is removed or sold and must appear on each shipping
document, bill of lading, cargo manifest, and invoice accompanying
the sale or removal of the dyed diesel fuel.
Sec. 162.234. UNAUTHORIZED SALE OR USE OF DYED DIESEL FUEL.
(a) A person may not sell or hold for sale dyed diesel fuel for any
use that the person knows or has reason to know is a taxable use of
the diesel fuel.
(b) A person may not use or hold for use dyed diesel fuel for
a use other than a nontaxable use if the person knows or has reason
to know that the diesel fuel is dyed diesel fuel.
Sec. 162.235. ALTERATION OF DYE OR MARKER IN DYED DIESEL
FUEL PROHIBITED. A person, with the intent to evade payment of tax,
may not alter or attempt to alter the strength or composition of a
dye or marker in dyed diesel fuel.
Sec. 162.236. USE OF DYED FUEL PROHIBITED. (a) A person
may not operate a motor vehicle on a public highway in this state
with taxable motor fuel that contains dye in the fuel supply tank of
the motor vehicle.
(b) This section does not apply to a use of dyed fuel that is
lawful under the Internal Revenue Code and implementing
regulations, including use in state and local government vehicles
or buses, unless otherwise prohibited by this chapter.
[Sections 162.237-162.300 reserved for expansion]
SUBCHAPTER D. LIQUEFIED GAS TAX
Sec. 162.301. TAX IMPOSED; RATE. (a) A tax is imposed on
the use of liquefied gas for the propulsion of motor vehicles on the
public highways of this state.
(b) The liquefied gas tax rate is 15 cents a gallon.
Sec. 162.302. PAYMENT OF TAX. (a) A person using a
liquefied gas-propelled motor vehicle, including a motor vehicle
equipped to use liquefied gas interchangeably with another motor
fuel, that is required to be licensed in Texas for use on the public
highways of Texas shall prepay the liquefied gas tax to the
comptroller on an annual basis; except that a person holding a motor
vehicle dealer's liquefied gas tax decal or an interstate trucker
whose vehicle is registered in Texas but may operate in other states
under a multistate tax agreement shall pay the tax to a licensed
dealer at the time the fuel is delivered into the fuel supply tank
of a motor vehicle.
(b) An interstate trucker operating a motor vehicle
licensed in a base state other than Texas and any other out-of-state
user shall pay the excise tax on delivery of the liquefied gas into
the fuel supply tanks of a motor vehicle.
Sec. 162.3021. SCHOOL DISTRICT TRANSPORTATION AND COUNTY
EXEMPTION. (a) The tax imposed by this subchapter does not apply
to the sale of liquefied petroleum gas to a public school district
or county in this state or to the use of liquefied petroleum gas by a
public school district or county in this state. A motor vehicle
that uses liquefied petroleum gas and that is operated by a public
school district or county in this state is not required to have a
liquefied gas tax decal or a special use liquefied gas tax decal.
(b) The tax imposed by this subchapter does not apply to the
sale of liquefied petroleum gas to a commercial transportation
company that uses the gas exclusively to provide public school
transportation services to a school district under Section 34.008,
Education Code, or to the use of liquefied petroleum gas by such a
company for that purpose. A motor vehicle that uses liquefied
petroleum gas and that is owned by a commercial transportation
company and used exclusively to provide public school
transportation services to a school district under Section 34.008,
Education Code, is not required to have a liquefied gas tax decal or
a special use liquefied gas tax decal.
Sec. 162.303. LICENSE; APPLICATION; DISPLAY. (a) A dealer
who sells taxable liquefied gas, an interstate trucker, a liquefied
gas tax decal user, or a motor vehicle dealer's liquefied gas tax
decal licensee shall file an application with the comptroller for
the kind and class of a nonassignable license required by this
subchapter.
(b) An application for a license must be filed on a form
provided by the comptroller showing the kind and class of license
desired, the odometer reading of a Class A through F motor vehicle,
and other information required by the comptroller.
(c) A license shall be posted in a conspicuous place or kept
available for inspection at the principal place of business of the
owner. A license holder shall reproduce the license and keep a copy
on display at each additional place of business from which
liquefied gas is sold, delivered, or used in motor vehicles. A
person holding an interstate trucker's license shall reproduce the
license and carry a copy with each motor vehicle being operated into
or from Texas. The liquefied gas tax decal user shall affix the
decal in the lower right-hand corner of the front windshield of the
passenger side of the vehicle.
Sec. 162.304. DEALER'S LICENSE. A dealer's license
authorizes a dealer to collect and remit taxes on liquefied gas
delivered into the fuel supply tanks of motor vehicles displaying
an out-of-state license plate, the motor vehicle of an interstate
trucker licensed under an agreement entered into under Section
162.017, or a motor vehicle displaying a motor vehicle dealer's
liquefied gas tax decal.
Sec. 162.305. LIQUEFIED GAS TAX DECAL LICENSE. (a) A user
of liquefied gas for the propulsion of a motor vehicle on the public
highways of Texas shall pay in advance annually on each motor
vehicle owned, operated, and licensed in Texas by him, a tax based
on the registered gross weight and mileage driven the previous year
in the following schedule: Less 5,000 10,000 15,000
than to to miles
5,000 9,999 14,999 and
miles miles miles over
Class A: Less than 4,000 pounds $30 $60 $ 90 $120
Class B: 4,001 to 10,000 pounds 42 84 126 168
Class C: 10,001 to 15,000 pounds 48 96 144 192
Class D: 15,001 to 27,500 pounds 84 168 252 336
Class E: 27,501 to 43,500 pounds 126 252 378 504
Class F: 43,501 pounds and over 186 372 558 744
(b) The first issuance of a liquefied gas tax decal for a
Class A through F motor vehicle shall be issued on a basis of
estimated miles that will be driven during the one-year period
following the date of issuance of the decal.
(c) The following special-use liquefied gas tax decal and
tax shall be required for the types of vehicles described below:
Class T: Transit carrier vehicles operated by a transit company -
$444
(d) An entity holding a registration under Chapter 503,
Transportation Code, may obtain a decal for each liquefied
gas-powered motor vehicle held for sale or resale and pay the tax
per gallon to a licensed dealer on each delivery of liquefied gas
into the fuel supply tank of the motor vehicle.
(e) An interstate trucker is not required to prepay the tax
under Subsection (a) for a motor vehicle operated for commercial
purposes and described by Section 162.001(41).
Sec. 162.306. INTERSTATE TRUCKER'S LICENSE. An interstate
trucker's license authorizes a person who imports liquefied gas
into this state in the fuel supply tanks of a motor vehicle owned or
operated for commercial purposes and described by Section
162.001(41) to report and pay the tax due and to make sales or
distributions in Texas from the vehicle's cargo tanks, but no
delivery may be made in Texas into the fuel supply tanks of motor
vehicles not bearing a current liquefied gas tax decal without
first obtaining the required dealer's license to make taxable
sales.
Sec. 162.307. LICENSES: PERIODS OF VALIDITY. (a) A
dealer's license is permanent and valid as long as the licensee
furnishes timely reports as required or until the license is
surrendered by the holder or canceled by the comptroller.
(b) An interstate trucker's license is valid from the date
of its issuance through December 31 of each calendar year or until
the license is surrendered by the holder or canceled by the
comptroller. The comptroller may renew the license for each
ensuing calendar year if the licensee furnishes timely reports as
required.
(c) A liquefied gas tax decal license is valid from the date
of its initial issuance through the last day of the same month of
the year following the year it was issued unless the motor vehicle
for which the tax is prepaid is sold or is no longer used on the
highway. After its initial issuance, a liquefied gas tax decal
license shall be issued annually and is valid for one year from the
date its issuance unless the motor vehicle for which the tax is
prepaid is sold or is no longer used on the public highway. A
liquefied gas tax decal licensee must make application for a new
license each year. The ending odometer reading must be provided on
the renewal application. In the absence of an ending odometer
reading, the previous year's mileage of the motor vehicle shall be
presumed to be at least 15,000 miles.
(d) A motor vehicle dealer's liquefied gas tax decal license
shall be issued annually and is valid from the date of its issuance
through December 31 of each calendar year unless the motor vehicle
is sold, at which time the decal shall be removed by the dealer from
the motor vehicle. A motor vehicle dealer's liquefied gas tax decal
licensee must make application for a new license each year.
Sec. 162.308. COMPUTATION OF TAXES; ALLOWANCES. (a) A
licensed dealer who makes a sale or delivery of liquefied gas into a
fuel supply tank of a motor vehicle on which the tax is required to
be collected is liable to the state for the tax imposed and shall
report and pay the tax in the manner required by this subchapter.
(b) A licensed interstate trucker shall report and pay to
this state the tax at the rate imposed on each gallon of liquefied
gas delivered by the trucker into the fuel supply tank of a motor
vehicle, unless the tax has been paid to a licensed dealer, and
shall report and pay the tax on each gallon of liquefied gas
imported into this state in the fuel supply tanks of motor vehicles
owned or operated by the trucker and consumed in the operation of
the motor vehicles on the public highways of this state.
(c) The tax on one percent of the taxable gallons of
liquefied gas sold in this state shall be allocated to the licensed
dealer making the sale for the expense of collecting, accounting
for, reporting, and timely remitting the taxes collected and
keeping the records. The allocation allowance shall be deducted by
the licensed dealers in the payment to the state.
(d) The tax of one-half of one percent of the taxable
gallons of liquefied gas used in this state by persons licensed as
interstate truckers shall be allocated to the interstate trucker
making the use of the liquefied gas for the expense of accounting
for, reporting, and timely remitting the taxes due.
Sec. 162.309. RECORDS. (a) A dealer shall keep for four
years, open to inspection at all times by the comptroller and the
attorney general, a complete record of all liquefied gas sold or
delivered for taxable purposes.
(b) An interstate trucker shall keep for four years, open to
inspection by the comptroller and the attorney general, a record
of:
(1) the total miles traveled in all states by all the
interstate trucker's motor vehicles traveling into or from Texas
and the total quantity of liquefied gas used in the motor vehicles;
and
(2) the total miles traveled in Texas and the total
quantity of liquefied gas purchased in Texas, showing both tax-paid
fuel delivered into the fuel supply tanks of motor vehicles and
tax-free fuel delivered into storage facilities in Texas.
(c) Each taxable sale or delivery of liquefied gas into the
fuel supply tanks of a motor vehicle, including deliveries by
interstate truckers from bulk storage, shall be covered by an
invoice. The invoice must be printed and contain the following:
(1) the preprinted or stamped name and address of the
licensed dealer or interstate trucker;
(2) the date;
(3) the number of gallons delivered;
(4) the mileage recorded on the odometer;
(5) the state and state highway license number;
(6) the signature of the driver of the motor vehicle;
and
(7) the amount of tax paid or accounted for separately
from the selling price.
(d) The invoice must be carried with the vehicle and will
serve as a trip permit.
(e) A liquefied gas tax decal licensee required to report
beginning and ending odometer readings may deduct the miles
traveled outside this state from the total miles traveled. A record
of miles traveled by the vehicle in states other than Texas must be
maintained and submitted with the renewal each year. A decal may
not be renewed for an amount less than the rate for 4,999 miles
annually.
Sec. 162.310. REPORTS AND PAYMENTS. (a) A licensed
dealer, on or before the 25th day of the month following the end of
each calendar quarter, shall file a report and remit the amount of
tax due. A licensed dealer who has not made taxable sales during
the reporting period shall file with the comptroller the report
setting forth the facts or information.
(b) Every licensed interstate trucker, on or before the 25th
day of the month following the end of each calendar quarter, shall
file a report and remit the amount of tax due. A report shall be
filed with the comptroller and must contain the number of miles
traveled in this state, the number of miles traveled outside this
state, and other information required by the comptroller on forms
provided for that purpose. An interstate trucker who is required to
file a report under this section and who has not made interstate
trips or used liquefied gas in motor vehicles in Texas during the
reporting period shall file with the comptroller the report setting
forth the facts or information.
Sec. 162.311. REFUNDS; TRANSFER OF DECALS. (a) If a motor
vehicle bearing a liquefied gas tax decal is sold or transferred,
the seller and purchaser shall promptly notify the comptroller of
the sale or transfer and a new decal shall be issued in the new
purchaser's name.
(b) If a motor vehicle bearing a liquefied gas tax decal is
destroyed or the liquefied gas carburetor system is removed, the
owner is entitled to a refund of the unused portion of the advance
taxes paid for that year. The owner or operator shall submit to the
comptroller an affidavit identifying the vehicle, the license
number, the decal number assigned to the vehicle, the circumstances
entitling the owner to a refund, and all other information required
by the comptroller. On receipt of the affidavit and when satisfied
as to the circumstances, the comptroller shall refund that portion
of the tax payment that corresponds to the number of complete months
remaining in the year for which the tax has been paid, beginning
with the month following the date on which the vehicle or the
liquefied gas carburetor was no longer utilized. No refund may be
made if the use of the vehicle ceased within the last month of the
year.
(c) A licensed interstate trucker is entitled to a refund of
the amount of the Texas liquefied gas tax paid on each gallon of
liquefied gas subsequently used outside this state. On
verification by the comptroller that the interstate trucker's
report was timely filed with all information required, the
comptroller shall issue a warrant to the interstate trucker for the
amount of the refund less the one percent deducted originally by the
licensed dealer making the sale. An interstate trucker who fails to
file an interstate trucker report by the 25th day of the month
following the end of a calendar quarter forfeits the right to a
refund.
[Sections 162.312-162.400 reserved for expansion]
SUBCHAPTER E. PENALTIES AND OFFENSES
Sec. 162.401. FAILURE TO PAY TAX OR FILE REPORT. (a) If a
person having a license, or a person required to have a license,
fails to file a report as required by this chapter or fails to pay a
tax imposed by this chapter when due, the person forfeits five
percent of the amount due as a penalty, and if the person fails to
file the report or pay the tax within 30 days after the day on which
the tax or report is due, the person forfeits an additional five
percent.
(b) The comptroller may add a penalty of 75 percent of the
amount of taxes, penalties, and interest due if failure to file the
report or pay the tax when it becomes due is attributable to fraud
or an intent to evade the application of this chapter or a rule
adopted under this chapter or Chapter 111.
Sec. 162.402. PROHIBITED ACTS; CIVIL PENALTIES. (a) A
person forfeits to the state a civil penalty of not less than $25
and not more than $200 if the person:
(1) refuses to stop and permit the inspection and
examination of a motor vehicle transporting or using motor fuel on
demand of a peace officer or the comptroller;
(2) operates a motor vehicle in this state without a
valid interstate trucker's license or a trip permit when the person
is required to hold one of those licenses or permits;
(3) operates a liquefied gas-propelled motor vehicle
that is required to be licensed in Texas, including motor vehicles
equipped with dual carburetion, and does not display a current
liquefied gas tax decal or multistate fuels tax agreement decal;
(4) makes a tax-free sale or delivery of liquefied gas
into the fuel supply tank of a motor vehicle that does not display a
current Texas liquefied gas tax decal;
(5) makes a taxable sale or delivery of liquefied gas
without holding a valid dealer's license;
(6) makes a tax-free sale or delivery of liquefied gas
into the fuel supply tank of a motor vehicle bearing out-of-state
license plates;
(7) makes a delivery of liquefied gas into the fuel
supply tank of a motor vehicle bearing Texas license plates and no
Texas liquefied gas tax decal, unless licensed under a multistate
fuels tax agreement;
(8) transports gasoline or diesel fuel in any cargo
tank that has a connection by pipe, tube, valve, or otherwise with
the fuel injector or carburetor of, or with the fuel supply tank
feeding the fuel injector or carburetor of, the motor vehicle
transporting the product;
(9) sells or delivers gasoline or diesel fuel from any
fuel supply tank connected with the fuel injector or carburetor of a
motor vehicle;
(10) owns or operates a motor vehicle for which
reports or mileage records are required by this chapter without an
operating odometer or other device in good working condition to
record accurately the miles traveled;
(11) furnishes to a supplier a signed statement for
purchasing diesel fuel tax-free and then uses the tax-free diesel
fuel to operate a diesel-powered motor vehicle on a public highway;
(12) fails or refuses to comply with or violates a
provision of this chapter;
(13) fails or refuses to comply with or violates a
comptroller's rule for administering or enforcing this chapter;
(14) is an importer who does not obtain an import
verification number when required by this chapter; or
(15) purchases motor fuel for export, on which the tax
imposed by this chapter has not been paid, and subsequently diverts
or causes the motor fuel to be diverted to a destination in this
state or any other state or country other than the originally
designated state or country without first obtaining a diversion
number.
(b) An importer or exporter that violates a requirement of
Section 162.016 is liable to this state for a civil penalty of
$2,000 or five times the amount of the unpaid tax, whichever is
greater, for each violation.
(c) A person receiving motor fuel who accepts a shipping
document that does not conform with the requirements of Section
162.016(a) is liable to this state for a civil penalty of $2,000 or
five times the amount of the unpaid tax, whichever is greater, for
each occurrence.
(d) A person operating a bulk plant or terminal who issues a
shipping document that does not conform with the requirements of
Section 162.018(a) is liable to this state for a civil penalty of
$2,000 or five times the amount of the unpaid tax, whichever is
greater, for each occurrence.
(e) A person operating a terminal or bulk plant who does not
post notice as required by Section 162.016(i) is liable to this
state for a civil penalty of $100 for each day the notice is not
posted as required by Section 162.016(i).
Sec. 162.403. CRIMINAL OFFENSES. Except as provided by
Section 162.404, a person commits an offense if the person:
(1) refuses to stop and permit the inspection and
examination of a motor vehicle transporting or using motor fuel on
the demand of a peace officer or the comptroller;
(2) is required to hold a valid trip permit or
interstate trucker's license, but operates a motor vehicle in this
state without a valid trip permit or interstate trucker's license;
(3) operates a liquefied gas-propelled motor vehicle
that is required to be licensed in Texas, including a motor vehicle
equipped with dual carburetion, and does not display a current
liquefied gas tax decal or multistate fuels tax agreement decal;
(4) transports gasoline or diesel fuel in any cargo
tank that has a connection by pipe, tube, valve, or otherwise with
the fuel injector or carburetor or with the fuel supply tank feeding
the fuel injector or carburetor of the motor vehicle transporting
the product;
(5) sells or delivers gasoline or diesel fuel from a
fuel supply tank that is connected with the fuel injector or
carburetor of a motor vehicle;
(6) owns or operates a motor vehicle for which reports
or mileage records are required by this chapter without an
operating odometer or other device in good working condition to
record accurately the miles traveled;
(7) sells or delivers dyed diesel fuel for the
operation of a motor vehicle on a public highway;
(8) uses dyed diesel fuel for the operation of a motor
vehicle on a public highway except as allowed under Section
162.236;
(9) makes a tax-free sale or delivery of liquefied gas
into the fuel supply tank of a motor vehicle that does not display a
current Texas liquefied gas tax decal;
(10) makes a sale or delivery of liquefied gas on which
the person knows the tax is required to be collected, if at the time
the sale is made the person does not hold a valid dealer's license;
(11) makes a tax-free sale or delivery of liquefied
gas into the fuel supply tank of a motor vehicle bearing
out-of-state license plates;
(12) makes a delivery of liquefied gas into the fuel
supply tank of a motor vehicle bearing Texas license plates and no
Texas liquefied gas tax decal, unless licensed under a multistate
fuels tax agreement;
(13) refuses to permit the comptroller or the attorney
general to inspect, examine, or audit a book or record required to
be kept by a licensee, other user, or any person required to hold a
license under this chapter;
(14) refuses to permit the comptroller or the attorney
general to inspect or examine any plant, equipment, materials, or
premises where motor fuel is produced, processed, blended, stored,
sold, delivered, or used;
(15) refuses to permit the comptroller, the attorney
general, an employee of either of those officials, a peace officer,
an employee of the Texas Commission on Environmental Quality, or an
employee of the Department of Agriculture to measure or gauge the
contents of or take samples from a storage tank or container on
premises where motor fuel is produced, processed, blended, stored,
sold, delivered, or used;
(16) is a licensee, a person required to be licensed,
or other user, and fails or refuses to make or deliver to the
comptroller a report required by this chapter to be made and
delivered to the comptroller;
(17) is an importer who does not obtain an import
verification number when required by this chapter;
(18) purchases motor fuel for export, on which the tax
imposed by this chapter has not been paid, and subsequently diverts
or causes the motor fuel to be diverted to a destination in this
state or any other state or country other than the originally
designated state or country without first obtaining a diversion
number;
(19) conceals motor fuel with the intent of engaging
in any conduct proscribed by this chapter or refuses to make sales
of motor fuel on the volume-corrected basis prescribed by this
chapter;
(20) refuses, while transporting motor fuel, to stop
the motor vehicle the person is operating when called on to do so by
a person authorized to stop the motor vehicle;
(21) refuses to surrender a motor vehicle and cargo
for impoundment after being ordered to do so by a person authorized
to impound the motor vehicle and cargo;
(22) mutilates, destroys, or secretes a book or record
required by this chapter to be kept by a licensee, other user, or
person required to hold a license under this chapter;
(23) is a licensee, other user, or other person
required to hold a license under this chapter, or the agent or
employee of one of those persons, and makes a false entry or fails
to make an entry in the books and records required under this
chapter to be made by the person or fails to retain a document as
required by this chapter;
(24) transports in any manner motor fuel under a false
cargo manifest or shipping document, or transports in any manner
motor fuel to a location without delivering at the same time a
shipping document relating to that shipment;
(25) engages in a motor fuel transaction that requires
that the person have a license under this chapter without then and
there holding the required license;
(26) makes and delivers to the comptroller a report
required under this chapter to be made and delivered to the
comptroller, if the report contains false information;
(27) forges, falsifies, or alters an invoice
prescribed by law;
(28) makes any statement, knowing said statement to be
false, in a claim for a tax refund filed with the comptroller;
(29) furnishes to a supplier a signed statement for
purchasing diesel fuel tax-free and then uses the tax-free diesel
fuel to operate a diesel-powered motor vehicle on a public highway;
(30) holds an aviation fuel dealer's license and makes
a taxable sale or use of any gasoline or diesel fuel;
(31) fails to remit any tax funds collected by a
licensee, other user, or any other person required to hold a license
under this chapter;
(32) makes a sale of diesel fuel tax-free into a
storage facility of a person who:
(A) is not licensed as a distributor, as an
aviation fuel dealer, or as a dyed diesel fuel bonded user, or
(B) does not furnish to the licensed supplier or
distributor a signed statement prescribed in Section 162.207;
(33) makes a sale of gasoline tax-free to any person
who is not licensed as an aviation fuel dealer;
(34) is a dealer who purchases any motor fuel tax-free
when not authorized to make a tax-free purchase under this chapter;
(35) is a dealer who purchases motor fuel with the
intent to evade any tax imposed by this chapter or who accepts a
delivery of motor fuel by any means and does not at the same time
accept or receive a shipping document relating to the delivery;
(36) transports motor fuel for which a cargo manifest
or shipping document is required to be carried without possessing
or exhibiting on demand by an officer authorized to make the demand
a cargo manifest or shipping document containing the information
required to be shown on the manifest or shipping document;
(37) imports, sells, uses, blends, distributes, or
stores motor fuel within this state on which the taxes imposed by
this chapter are owed but have not been first paid to or reported by
a licensee, other user, or any other person required hold a license
under this chapter;
(38) blends products together to produce a blended
fuel that is offered for sale, sold, or used and that expands the
volume of the original product to evade paying applicable motor
fuel taxes; or
(39) evades or attempts to evade in any manner a tax
imposed on motor fuel by this chapter.
Sec. 162.404. CRIMINAL OFFENSES: SPECIAL PROVISIONS AND
EXCEPTIONS. (a) A person does not commit an offense under Section
162.403 unless the person intentionally or knowingly engaged in
conduct as the definition of the offense requires, except that no
culpable mental state is required for an offense under Section
162.403(6).
(b) Each day that a refusal prohibited under Section
162.403(13), (14), or (15) continues is a separate offense.
(c) The prohibition under Section 162.403(32) does not
apply to the tax-free sale or distribution of diesel fuel
authorized by Section 162.205(1), (2), (3), or (8).
(d) The prohibition under Section 162.403(33) does not
apply to the tax-free sale or distribution of gasoline under
Section 162.105(1), (2), or (3).
Sec. 162.405. CRIMINAL PENALTIES. (a) An offense under
Section 162.403(1), (2), (3), (4), (5), (6), (7), or (8) is a Class
C misdemeanor.
(b) An offense under Section 162.403(9), (10), (11), (12),
(13), (14), (15), (16), (17), or (18) is a Class B misdemeanor.
(c) An offense under Section 162.403(19), (20), or (21) is a
Class A misdemeanor.
(d) An offense under Section 162.403(22), (23), (24), (25),
(26), (27), (28), or (29) is a felony of the third degree.
(e) An offense under Section 162.403(30), (31), (32), (33),
(34), (35), (36), (37), (38), or (39) is a felony of the second
degree.
(f) Violations of three or more separate offenses under
Sections 162.403(22) through (29) committed pursuant to one scheme
or continuous course of conduct may be considered as one offense and
punished as a felony of the second degree.
Sec. 162.406. CRIMINAL PENALTIES: CORPORATIONS AND
ASSOCIATIONS. (a) Except as provided by Subsection (b),
Subchapter E, Chapter 12, Penal Code, applies to offenses under
this chapter committed by a corporation or association.
(b) The court may not fine a corporation or association
under Section 12.51(c), Penal Code, unless the amount of the fine
under that subsection is greater than the amount that could be fixed
by the court under Section 12.51(b), Penal Code.
(c) In addition to a sentence imposed on a corporation, the
court shall give notice of the conviction to the attorney general as
required by Article 17A.09, Code of Criminal Procedure.
Sec. 162.407. VENUE OF CRIMINAL PROSECUTIONS. The venue
for a prosecution under this subchapter is in Travis County or in
the county where the offense occurred.
Sec. 162.408. NEGATION OF EXCEPTION: INFORMATION,
COMPLAINT, OR INDICTMENT. An information, complaint, or indictment
charging a violation of this chapter need not negate an exception to
an act prohibited by this chapter, but the exception may be urged by
the defendant as a defense to the offense charged.
Sec. 162.409. ISSUANCE OF BAD CHECK TO LICENSED DISTRIBUTOR
OR LICENSED SUPPLIER. (a) A person commits an offense if:
(1) the person issues or passes a check or similar
sight order for the payment of money knowing that the issuer does
not have sufficient funds in or on deposit with the bank or other
drawee for the payment in full of the check or order as well as all
other checks or orders outstanding at the time of issuance;
(2) the payee on the check or order is a licensed
distributor or licensed supplier; and
(3) the payment is for an obligation or debt that
includes a tax under this chapter to be collected by the licensed
distributor or licensed supplier.
(b) Sections 32.41(b), (c), (d), (e), and (g), Penal Code,
apply to an offense under this section in the same manner as those
provisions are applicable to the offense under Section 32.41(a),
Penal Code.
(c) An offense under this section is a Class C misdemeanor.
(d) A person who makes payment on an obligation or debt that
includes a tax under this chapter and pays with an insufficient
funds check issued to a licensed distributor or licensed supplier
may be held liable for a penalty equal to the total amount of tax not
paid to the licensed distributor or licensed supplier.
[Sections 162.410-162.500 reserved for expansion]
SUBCHAPTER F. ALLOCATION OF TAXES
Sec. 162.501. TAX ADMINISTRATION FUND. (a) Before any
other allocation of the taxes collected under this chapter is made,
one percent of the gross amount of the taxes shall be deposited in
the state treasury in a special fund, subject to the use of the
comptroller in the administration and enforcement of this chapter.
(b) The unexpended portion of the special fund shall revert,
at the end of the fiscal year, to the other funds to which revenue is
allocated by this subchapter in proportion to the amounts
originally derived from the respective sources.
Sec. 162.502. ALLOCATION OF UNCLAIMED REFUNDABLE GASOLINE
TAXES. (a) On or before the fifth workday after the end of each
month, the comptroller, after making the deductions for refund
purposes, shall determine as accurately as possible, for the period
since the latest determination under this subsection, the number of
gallons of fuel used in motorboats on which the gasoline tax has
been paid to this state, on which refund of the tax has not been
made, and against which limitation has run for filing claim for
refund of the tax. From the number of gallons so determined the
comptroller shall compute the amount of taxes that would have been
refunded under the law had refund claims been filed in accordance
with the law.
(b) The comptroller shall allocate and deposit these
unclaimed refunds as follows:
(1) 25 percent of the revenues based on unclaimed
refunds of taxes paid on motor fuel used in motorboats shall be
deposited to the credit of the available school fund; and
(2) the remaining 75 percent of the revenue shall be
deposited to the credit of the general revenue fund.
(c) Money deposited to the credit of the general revenue
fund under Subsection (b)(2) may be appropriated only to the Parks
and Wildlife Department for any lawful purpose.
Sec. 162.5025. ALLOCATION OF OTHER UNCLAIMED REFUNDABLE
NONDEDICATED TAXES. (a) The comptroller by rule shall devise a
method of determining as accurately as possible the:
(1) number of gallons of fuel that are not used to
propel a motor vehicle on the public highways; and
(2) amount of taxes collected under this chapter from
fuel that is not used to propel a motor vehicle on the public
highways that would have been refunded under this chapter if refund
claims had been filed in accordance with this chapter and that is
not subject to allocation under Section 162.502.
(b) The comptroller shall allocate to the general revenue
fund the amount determined under Subsection (a)(2).
(c) The determination and allocation shall be made
periodically as prescribed by rule.
Sec. 162.503. ALLOCATION OF GASOLINE TAX. On or before the
fifth workday after the end of each month, the comptroller, after
making all deductions for refund purposes and for the amounts
allocated under Sections 162.502 and 162.5025, shall allocate the
net remainder of the taxes collected under Subchapter B as follows:
(1) one-fourth of the tax shall be deposited to the
credit of the available school fund;
(2) one-half of the tax shall be deposited to the
credit of the state highway fund for the construction and
maintenance of the state road system under existing law; and
(3) from the remaining one-fourth of the tax the
comptroller shall:
(A) deposit to the credit of the county and road
district highway fund all the remaining tax receipts until a total
of $7,300,000 has been credited to the fund each fiscal year; and
(B) after the amount required to be deposited to
the county and road district highway funds has been deposited,
deposit to the credit of the state highway fund the remainder of the
one-fourth of the tax, the amount to be provided on the basis of
allocations made each month of the fiscal year, which sum shall be
used by the Texas Department of Transportation for the
construction, improvement, and maintenance of farm-to-market
roads.
Sec. 162.504. ALLOCATION OF DIESEL FUEL TAX. On or before
the fifth workday after the end of each month, the comptroller,
after making deductions for refund purposes, for the administration
and enforcement of this chapter, and for the amounts allocated
under Section 162.5025, shall allocate the remainder of the taxes
collected under Subchapter C as follows:
(1) one-fourth of the taxes shall be deposited to the
credit of the available school fund; and
(2) three-fourths of the taxes shall be deposited to
the credit of the state highway fund.
Sec. 162.505. ALLOCATION OF LIQUEFIED GAS TAX. On or before
the fifth workday after the end of each month, the comptroller,
after making deductions for refund purposes and for the
administration and enforcement of this chapter, shall allocate the
remainder of the taxes collected under Subchapter D as follows:
(1) one-fourth of the taxes shall be deposited to the
credit of the available school fund; and
(2) three-fourths of the taxes shall be deposited to
the credit of the state highway fund.
SECTION 2. Chapter 153, Tax Code, is repealed. A reference
in law to Chapter 153, Tax Code, means Chapter 162, Tax Code, as
added by this Act.
SECTION 3. This Act takes effect September 1, 2003.