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78R5105 CBH-F
By: Krusee H.B. No. 2458
A BILL TO BE ENTITLED
AN ACT
relating to the collection of motor fuel taxes; providing
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 153.001, Tax Code, is amended by
amending Subdivisions (1), (5), (9), (10), (27), (32), and (33) and
adding Subdivisions (38)-(55) to read as follows:
(1) "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 bulk storage facilities of other aviation fuel dealers or
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 or [,] sell[, or distribute]
gasoline or diesel fuel on which a fuel tax is required to be
collected or paid to this state.
(5) "Diesel fuel" means kerosene or another liquid, or
a combination of liquids blended together, that 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, number two fuel oil, distillate fuel, cutter stock, or heating
oil, but does not include gasoline, aviation gasoline, jet fuel, or
liquefied gas.
(9) "Distributor" means a person that acquires, by
tanker truck, railcar, or both, motor fuel from a terminal supplier
or another distributor for subsequent sale at wholesale [who:
[(A) regularly makes sales or distributions of
gasoline that are not into the fuel supply tanks of motor vehicles,
motorboats, or aircraft;
[(B) refines, distills, manufactures, produces,
or blends for sale or distribution gasoline in this state;
[(C) imports or exports gasoline other than in
the fuel supply tanks of motor vehicles; or
[(D) in any other manner acquires or possesses
tax-free gasoline].
(10) "Gasoline" means any liquid or combination of
liquids blended together offered for sale, sold, or used as the fuel
for a gasoline-powered engine. The term includes blending agents,
but excludes aviation gasoline, jet fuel, diesel fuel, and
liquefied gas.
(27) "User" means, with respect to motor fuel, a
person who owns or operates a motor vehicle or other machine having
fuel supply tanks into which gasoline or diesel fuel is delivered.
(32) "Export" means to deliver motor fuel, outside the
bulk transfer system, to a point outside this state. For purposes
of this definition, motor fuel delivered outside this state:
(A) by or for the seller constitutes an export by
the seller; and
(B) by or for the purchaser constitutes an export
by the purchaser.
(33) "Import" means to deliver motor fuel, outside the
bulk transfer system, to a point inside this state from a point
outside this state. For purposes of this definition, motor fuel
delivered into this state from outside this state:
(A) by or for the seller constitutes an import by
the seller; and
(B) by or for the purchaser constitutes an import
by the purchaser.
(38) "Blender" means a person that produces blended
fuel outside the bulk transfer system.
(39) "Bulk transfer" means the shipment of fuel by
pipeline or marine vessel between terminals or from a refinery to a
terminal.
(40) "Bulk transfer system" means the motor fuel
distribution system consisting of refineries, pipelines, vessels,
and terminals. Motor fuel in a refinery, pipeline, vessel, or
terminal is in the bulk transfer system. Motor fuel in the fuel
supply tank of an engine or in a tank car, railcar, trailer, truck,
or other equipment suitable for ground transportation is outside
the bulk transfer system.
(41) "Commercial passenger carrier" means a person,
other than a political subdivision, that owns, controls, operates,
or manages a commercial motor vehicle as defined by Section
548.001, Transportation Code.
(42) "Diesel exempt user" means a person whose use of
diesel fuel is exempt from the tax imposed by Subchapter C under:
(A) Section 153.203(d);
(B) Section 153.205; or
(C) Section 153.209.
(43) "Exempt user" means a person whose use of a motor
fuel is exempt from a tax imposed by this chapter.
(44) "Exporter" means a person that exports motor
fuel.
(45) "Gross gallons" means the actual amount of fuel
removed, sold, or used, measured in gallons, and not adjusted to 60
degrees Fahrenheit.
(46) "Importer" means a person that imports motor
fuel.
(47) "Kerosene dealer" means a person that is the
operator of a service station or other retail establishment at
which:
(A) kerosene is sold through barricaded
dispensers designed and constructed to prevent delivery directly
from the dispenser into the fuel supply tank of a motor vehicle; or
(B) kerosene is sold through nonbarricaded
dispensers in quantities of not more than 21 gallons and is not
delivered into the fuel supply tank of a motor vehicle.
(48) "Loading rack" means that part of a terminal or
refinery at which petroleum products are physically removed from
the terminal or refinery into tanker trucks or railcars.
(49) "Net gallons" means the actual amount of fuel
removed, sold, or used, measured in gallons, and adjusted to 60
degrees Fahrenheit.
(50) "Position holder" means, with respect to motor
fuel in a terminal, the person that holds the inventory position in
the motor fuel, as reflected on the records of the terminal
operator. A person holds the inventory position in motor fuel when
the person has a contractual agreement with the terminal operator
for the use of storage facilities and terminaling services at a
terminal with respect to the motor fuel. The term also includes a
terminal operator that owns motor fuel in the operator's terminal.
(51) "Refinery" means a facility used to produce motor
fuel from crude oil, unfinished oils, natural gas liquids, or other
hydrocarbons and from which motor fuel may be transported by
pipeline or vessel and may be removed at a loading rack.
(52) "Removal" means any removal of motor fuel from
the bulk transfer system.
(53) "Terminal" means a storage and distribution
facility for motor fuel that is supplied by pipeline or marine
vessel, from which motor fuel may be removed at a loading rack, and
that is registered as a terminal with the Internal Revenue Service.
The term includes that portion of a refinery with a loading rack.
(54) "Terminal operator" means a person that owns,
operates, or otherwise controls a terminal.
(55) "Terminal supplier" means a position holder that
is registered under Section 4101, Internal Revenue Code of 1986, as
amended, to engage in transactions involving the bulk storage and
transfer of motor fuel.
SECTION 2. Section 153.004(d), Tax Code, is amended to read
as follows:
(d) Each person, other than a common carrier, transporting
motor fuel [under this chapter,] shall also carry a copy of the
[supplier, distributor, jobber, dyed diesel fuel bonded user, or
agricultural bonded user] permit issued to the person by the
comptroller[,] or proof of tax payment on the motor fuel being
transported, unless the person is an end user transporting the
person's own motor fuel purchased under a signed statement as
provided by Section 153.205 or is an exempt user.
SECTION 3. Sections 153.006(d) and (e), Tax Code, are
amended to read as follows:
(d) If, after the hearing or the opportunity to be heard,
the permit 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
permit. The permittee shall within five days make a report covering
the period of time not covered by preceding reports filed by the
permittee and ending with the date of cancellation, and shall remit
and pay to the comptroller all taxes due under this chapter [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 an exporter's [a
distributor's or supplier's] permit if the exporter [distributor or
supplier] purchases, for export, motor fuel in this state [on which
the tax imposed by this chapter has not been paid] and subsequently
diverts or causes the fuel to be diverted to a destination in this
state or to a destination in another state or country other than the
originally designated state or country without first obtaining a
diversion number.
SECTION 4. Section 153.008, Tax Code, is amended to read as
follows:
Sec. 153.008. 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 distributor, supplier,
dealer, jobber, 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.
SECTION 5. Section 153.010, Tax Code, is amended to read as
follows:
Sec. 153.010. 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 permit or copy of a permit 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 distributor,
supplier, dealer, dyed diesel fuel bonded user, agricultural bonded
user, jobber, or] any person required to be so permitted. The
comptroller, a peace officer, an employee of the attorney general's
office, an employee of the Texas Commission on Environmental
Quality [Natural Resource Conservation Commission], 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.
SECTION 6. Section 153.013(a), Tax Code, is amended to read
as follows:
(a) A person [distributor, supplier, dealer, interstate
trucker, jobber, dyed diesel fuel bonded user, or agricultural
bonded user] who fails to keep a record, issue an invoice, or file a
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 person [distributor, supplier,
dealer, interstate trucker, jobber, dyed diesel fuel bonded user,
or agricultural bonded 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 to him. 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 person [distributor,
supplier, dealer, interstate trucker, jobber, dyed diesel fuel
bonded user, or agricultural bonded user,] are evidence in any suit
or judicial proceedings filed by the attorney general, and are
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 person
[distributor, supplier, dealer, interstate trucker, jobber, dyed
diesel fuel bonded user, or agricultural bonded user].
SECTION 7. Section 153.016, Tax Code, is amended to read as
follows:
Sec. 153.016. ADDITIONAL TAX APPLIES TO [DEALER AND JOBBER]
INVENTORIES. (a) On the effective date of an increase in the rates
of the taxes imposed by this chapter, a person [dealer or jobber]
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 person [dealer or jobber] 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.
SECTION 8. Section 153.018, Tax Code, is amended by
amending Subsections (a)-(e) and adding Subsection (a-1) to read as
follows:
(a) An importer [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 importer [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 net [temperature-adjusted] gallons if
purchased from a terminal [for export or import]; or
(B) in net or gross [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,
permit number, and physical address of the purchaser of the motor
fuel;
(8) the permit number [name] of the importer [person
responsible for paying the tax imposed by this chapter, as given to
the terminal by the purchaser if different from the permitted
supplier or distributor]; and
(9) any other information that, in the opinion of the
comptroller, is necessary for the proper administration of this
chapter.
(a-1) An exporter may not export motor fuel from a
destination in this state unless the exporter possesses a shipping
document for that fuel created by the terminal supplier or
distributor from which the fuel was received. The shipping document
must include:
(1) the permit number of the terminal supplier or
distributor;
(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 in net gallons;
(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,
permit number, and physical address of the purchaser of the motor
fuel;
(8) the permit number of the exporter; and
(9) any other information that, in the opinion of the
comptroller, is necessary for the proper administration of this
chapter.
(b) The terminal supplier, distributor, 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 supplier, distributor, terminal, or bulk plant 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 [permitted]
distributor, the terminal [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 supplier,
distributor, 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.
SECTION 9. Subchapter A, Chapter 153, Tax Code, is amended
by adding Section 153.019 to read as follows:
Sec. 153.019. AVIATION GASOLINE AND JET FUEL. The
comptroller may require a person who holds a permit under this
chapter to report transactions involving aviation gasoline and jet
fuel.
SECTION 10. Subchapter B, Chapter 153, Tax Code, is amended
by amending Sections 153.101-153.107 and adding Sections
153.1051-153.1056 to read as follows:
Sec. 153.101. GASOLINE TAX IMPOSED. (a) A tax is imposed
on the [first sale or] use of gasoline in this state.
(b) Gasoline is used when it is delivered into a receptacle
on a motor vehicle or other machine from which fuel is supplied for
the propulsion or operation of the motor vehicle or other machine
[If the tax imposed by this section is not paid at the time of the
first sale or use, the comptroller may assess all applicable tax,
penalty, and interest against any person buying the fuel for
further resale].
Sec. 153.102. TAX RATES. (a) The gasoline tax rate is 20
cents for each [gross or volumetric] gallon or fractional part
[sold or] used in this state except as provided by Subsection (b).
(b) The gasoline tax rate for gasoline sold to a transit
company for exclusive use in its transit [carrier] vehicles under
an exemption certificate promulgated by the comptroller is 19 cents
for each gallon.
Sec. 153.103. COMPUTATION OF TAX. (a) The amount of the
tax shall be computed and paid [over] to the state on the invoiced
[temperature-adjusted volume of] gallons of taxable gasoline
removed from a loading rack in this state [sold to wholesalers,
jobbers, dealers, or other persons purchasing gasoline for resale,
where such sales are made in single deliveries of 5,000 gallons or
more, or in lesser quantities where required by city ordinance. The
comptroller may publish and distribute a table to be used for
converting the measurement of gross gallons of gasoline to
temperature-adjusted gallons of gasoline].
(b) The amount of the tax on imported gasoline shall be
computed and paid to the state on the invoiced [gross or volumetric]
gallons of taxable gasoline received outside this state at a
refinery, terminal, or bulk plant for delivery to a destination in
this state [sold where the sales are made in single deliveries of
less than 5,000 gallons or in quantities less than the maximum
prescribed by city ordinance, if the maximum is less than 5,000
gallons].
(c) The amount of the tax on blended fuel shall be computed
and paid to the state on the number of gallons that is equal to the
difference between the total number of gallons of blended fuel
produced and the number of gallons of previously taxed fuel used in
making the blended fuel [For a distributor whose gasoline
deliveries are made to retail outlets that are operated by him or
deliveries by him on consignment, the tax on sales to users and
consumers shall be computed on the basis of actual sales].
(d) The amount of tax on all other gasoline shall be
computed and paid to the state on the number of gallons sold, used,
or removed in this state.
(e) The amount of tax due under this chapter shall be
computed on net gallons [If the comptroller is not satisfied with a
tax return or the amount of tax required to be paid to the state by
any distributor who elects to report on the basis of actual sales,
the comptroller may compute and determine the amount required to be
paid on the basis of the beginning inventory, showing the total
gallons of gasoline in storage at the location on the first day of
the calendar month, plus the total gallons of gasoline delivered
into the storage facility during the month, less the total gallons
of gasoline in the storage facility at the end of the calendar
month].
Sec. 153.104. EXEMPTIONS [EXCEPTIONS]. (a) Gasoline used
for a purpose other than the propulsion of a motor vehicle on the
public highways of this state is exempt from the tax imposed by this
subchapter.
(b) Gasoline used by the following persons to propel a motor
vehicle on the public highways of this state is exempt from the tax
imposed by this subchapter:
(1) the federal government;
(2) public school districts; and
(3) commercial transportation companies that provide
public school transportation services to a school district under
Section 34.008, Education Code, and that use the gasoline
exclusively to provide those services.
(c) Gasoline brought into this state in the fuel supply tank
of a motor vehicle operated by a person not required to be permitted
as an interstate trucker and used to propel a motor vehicle on the
public highways of this state is exempt from the tax imposed by this
subchapter [The tax imposed by this subchapter does not apply to
gasoline:
[(1) brought into this state in the fuel supply tank of
a motor vehicle operated by a person not required to be permitted as
an interstate trucker;
[(2) delivered by a permitted distributor to a common
or contract carrier, oceangoing vessel (including ship, tanker, or
boat), or a barge for export from this state if the gasoline is
moved forthwith outside the state;
[(3) sold by a permitted distributor to another
permitted distributor;
[(4) sold to the federal government for its exclusive
use;
[(5) delivered by a permitted distributor into a
storage facility of a permitted aviation fuel dealer from which
gasoline will be delivered solely into the fuel supply tanks of
aircraft or aircraft servicing equipment;
[(6) sold by one aviation fuel dealer to another
aviation fuel dealer who will deliver the aviation fuel exclusively
into the fuel supply tanks of aircraft or aircraft servicing
equipment;
[(7) sold to a public school district in this state for
its exclusive use; or
[(8) sold to a commercial transportation company that
provides public school transportation services to a school district
under Section 34.008, Education Code, and used by the company
exclusively to provide those services].
Sec. 153.105. COLLECTION OF TAX; ALLOWANCES. (a) Except as
otherwise provided by this section, the tax imposed by this
subchapter shall be collected by the terminal supplier from the
purchaser on removal of gasoline from a terminal. The tax shall be
paid to the comptroller at the time and in the manner provided by
this subchapter [A person who makes a sale or use of gasoline on
which the tax has not been previously paid in this state for any
purpose other than those excepted by Section 153.104 of this code
shall at the time of sale or use collect the tax from the purchaser
or recipient of gasoline in addition to the selling price and is
also liable to the state for the taxes collected at the time and in
the manner as provided by this chapter. A person is liable to the
state for the tax at the applicable tax rate for each gallon of
gasoline or fractional part thereof used or consumed by him in a
taxable manner and shall report and pay the tax as provided by this
chapter. 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 for the purpose of propelling a vehicle upon
the public highways of this state].
(b) The tax imposed by this subchapter on gasoline imported
outside the bulk transfer system shall be computed on the entry of
the fuel into this state and shall be paid by the importer to the
comptroller at the time and in the manner provided by this
subchapter [Gasoline is deemed to be used when it is delivered into
a fuel supply tank].
(c) The tax imposed by this subchapter on fuel blended
outside the bulk transfer system shall be computed at the time of
blending and shall be paid by the blender to the comptroller at the
time and in the manner provided by this subchapter [If gasoline is
purchased, in a single delivery of 5,000 gallons or more, or in
lesser quantities where required by city ordinance, by any person
for the purpose of resale, the seller, distributor, or broker shall
sell the product to the retailer or any other person purchasing the
product on the basis of temperature-corrected gallonage to 60
degrees Fahrenheit and the tax shall be computed and paid over to
the state on the temperature-corrected basis. All other sales
shall be reported to the comptroller on the basis of gross or
volumetric gallons of taxable gasoline sold].
(d) A person who uses gasoline for a use that is not exempted
under Section 153.104 and on which the tax has not been previously
paid is liable to this state for the tax and shall report and pay the
tax to the comptroller as provided by this subchapter [For each one
degree Fahrenheit that the temperature of gasoline taken at the
time of loading for sale differs from 60 degrees Fahrenheit, an
adjustment in the contract price shall be made equal to the
stipulated value of six-hundredths of one percent of the total
volume delivered].
(e) Except as provided by Sections 153.1051, 153.1052,
153.1053, and 153.1054, a person who sells or removes gasoline on
which the tax has not been previously paid shall, at the time of the
sale or removal, collect the tax from the purchaser or recipient of
the gasoline and shall report and pay the tax to the comptroller as
provided by this subchapter. The tax is in addition to the selling
price of the gasoline, and the tax becomes part of the purchase
price and is a debt from the buyer to the seller until paid or until
the seller receives a bad debt credit or refund from the
comptroller.
(f) Except as provided by Sections 153.1052, 153.1053, and
153.1054, a person who pays the tax imposed by this subchapter on a
purchase of gasoline and who resells the gasoline shall add the
amount of the tax to the selling price and collect the tax from the
purchaser so that the tax is paid ultimately by the person who uses
the gasoline. When the tax is added, the tax becomes part of the
purchase price and is a debt from the buyer to the seller until paid
or until the seller receives a bad debt credit or refund from the
comptroller.
(g) The tax on one-half of one [two] percent of the taxable
gallons of gasoline removed from a terminal by a terminal supplier
[sold] in this state shall be allocated to the distributor who
purchases [making the first taxable sale or use of] the gasoline
from a terminal supplier, [and timely paying the tax to the state]
for the expenses of [collecting, accounting for,] reporting[,] and
[remitting the tax collected and for] keeping records as required
by this subchapter. The distributor shall pay to the terminal
supplier the amount of tax due on the gasoline purchased, less
one-half of one percent.
(h) The tax on one-fourth of one percent of the taxable
gallons of gasoline removed from a terminal by a terminal supplier
in this state shall be allocated to the terminal supplier that
removes the gasoline and timely pays the tax to the state.
(i) The amount of tax required to be paid to the comptroller
under Section 153.118(a) is the amount of tax due under this
section, after the deductions prescribed by Subsections (g) and
(h).
(j) A terminal supplier shall allow a distributor to pay the
tax on transactions that occur during a calendar month as late as
the 23rd day of the next month, if:
(1) the distributor agrees to pay the tax by
electronic funds transfer or cashier's check;
(2) the distributor agrees that payment by electronic
funds transfer or cashier's check will be received in the terminal
supplier's account or by the terminal supplier not later than 5 p.m.
on that 23rd day;
(3) the distributor is not delinquent in paying any
other amount the distributor owes the terminal supplier; and
(4) the distributor has not failed during the
preceding year to remit the tax to the terminal supplier by 5 p.m.
by the 23rd day of the month after the month of the transaction if
the distributor agreed to those payments.
Sec. 153.1051. EXCEPTIONS TO COLLECTION OF TAX BY TERMINAL
SUPPLIER. (a) A terminal supplier is not required to collect the
tax imposed by this subchapter on gasoline removed by the terminal
supplier to an exempt user if the terminal supplier designates to
the comptroller:
(1) the name and address of the exempt user;
(2) the number of gallons removed;
(3) the date of removal; and
(4) any other information required by the comptroller.
(b) A terminal supplier is not required to collect the tax
imposed by this subchapter on gasoline removed by the terminal
supplier to an exporter if:
(1) the exporter designates to the terminal supplier
the destination for delivery of the fuel to a location outside this
state;
(2) the exporter is licensed in the state of
destination and has supplied the terminal supplier with that
license number;
(3) the exporter has not been barred from making
tax-free exports by the comptroller for making false refund claims;
and
(4) the terminal supplier collects and remits to the
state of destination all taxes imposed on that fuel by the
destination state.
Sec. 153.1052. EXCEPTION TO COLLECTION OF TAX BY
DISTRIBUTOR. A distributor is not required to collect the tax
imposed by this subchapter on gasoline sold by the distributor to an
exempt user if the distributor designates to the comptroller:
(1) the name and address of the exempt user;
(2) the number of gallons sold;
(3) the date of sale; and
(4) any other information required by the comptroller.
Sec. 153.1053. EXCEPTION TO COLLECTION OF TAX BY AVIATION
FUEL DEALER. An aviation fuel dealer is not required to collect the
tax imposed by this subchapter on gasoline sold by the aviation fuel
dealer and delivered into the fuel supply tanks of aircraft or
aircraft servicing equipment if the aviation fuel dealer retains
records for each delivery of that fuel stating:
(1) the name and address of the purchaser;
(2) the registration or "N" number of the aircraft or
the number or a description of the aircraft servicing equipment;
(3) the number of gallons sold;
(4) the date of sale; and
(5) any other information required by the comptroller.
Sec. 153.1054. EXCEPTION TO COLLECTION OF TAX BY DEALER. A
dealer is not required to collect the tax imposed by this subchapter
on gasoline sold by the dealer to an exempt user if the dealer
retains records for each sale stating:
(1) the name and address of the exempt user;
(2) the number of gallons sold;
(3) the date of sale; and
(4) any other information required by the comptroller.
Sec. 153.1055. LIABILITY OF TERMINAL OPERATOR. (a) A
terminal operator is jointly and severally liable to this state for
the tax imposed by this subchapter on fuel removed from the terminal
by a position holder that is not the terminal operator or a
permitted terminal supplier. The terminal operator shall remit the
tax to the comptroller at the time and in the manner prescribed for
a terminal supplier.
(b) A terminal operator is relieved of liability under
Subsection (a) if the terminal operator establishes that, at the
time of the removal:
(1) the terminal operator held a valid terminal
operator's permit;
(2) the terminal operator had an unexpired
notification certificate from the position holder as required by
the Internal Revenue Service; and
(3) the terminal operator did not have a reason to
believe that any information in the certificate was false.
Sec. 153.1056. PRESUMPTION; BURDEN OF PROOF. (a) It is
presumed that all gasoline removed, imported, blended, or sold in
this state will be used to propel a motor vehicle on the public
highways of this state. It is presumed that all gasoline used in
this state is used to propel a motor vehicle on the public highways
of this state.
(b) A terminal supplier has the burden of proving that an
exception for collection of the tax under Section 153.1051 applies
to a removal of gasoline by the terminal supplier. The burden is
satisfied if the terminal supplier designates to the comptroller
the information required by Section 153.1051 for each removal of
gasoline.
(c) A distributor has the burden of proving that an
exception for collection of the tax under Section 153.1052 applies
to a sale of gasoline by the distributor. The burden is satisfied
if the distributor designates to the comptroller the information
required by Section 153.1052 for each sale of gasoline.
(d) An aviation fuel dealer has the burden of proving that
an exception for collection of the tax under Section 153.1053
applies to a sale of gasoline by the aviation fuel dealer. The
burden is satisfied if the aviation fuel dealer retains records
containing the information required by Section 153.1053 for each
sale of gasoline and, if requested by the comptroller, supplies the
information to the comptroller.
(e) A dealer has the burden of proving that an exception for
collection of the tax under Section 153.1054 applies to a sale of
gasoline by the dealer. The burden is satisfied if the dealer
retains records containing the information required by Section
153.1054 for each sale of gasoline and, if requested by the
comptroller, supplies the information to the comptroller.
(f) A user has the burden of proving that an exemption under
Section 153.104 applies to a use of gasoline by the user.
Sec. 153.106. PERMITS: APPLICATION. (a) A terminal
operator, terminal supplier, importer, exporter, blender,
distributor, interstate trucker, dealer [gasoline jobber], or
aviation fuel dealer shall file an application with the comptroller
for a permit to engage in that business [one of the nonassignable
permits provided for] in this state [subchapter].
(b) The comptroller shall promulgate the application form,
which must contain the following information:
(1) the name under which the applicant transacts or
intends to transact business and, for a terminal supplier's permit,
the applicant's registration number under Section 4101, Internal
Revenue Code of 1986;
(2) the principal office, residence, or place of
business in Texas 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.
(c) The comptroller shall determine from the information
shown in the application or other investigation the kind and class
of permit to be issued.
(d) The comptroller may issue a single permit containing
multiple designations to an applicant who wishes to engage in more
than one category of business for which a permit is required.
(e) The comptroller may deny or may revoke a permit if false
information is submitted on the application or on a required fuels
tax report or supplement.
Sec. 153.107. PERMITS NOT ASSIGNABLE [DISTRIBUTOR'S
PERMIT]. A [person performing the functions of a distributor shall
obtain a distributor's] permit issued under this subchapter may not
be assigned.
SECTION 11. Sections 153.112(a) and (b), Tax Code, are
amended to read as follows:
(a) A terminal supplier permit, an importer permit, an
exporter permit, a blender permit, a distributor [distributor's]
permit, and an aviation fuel dealer permit are [is permanent and is]
valid so long as the holder [permittee] has in force and effect the
required bond or security and furnishes timely reports and
supplements as required, or until [the permit is] surrendered by
the holder or canceled by the comptroller. The comptroller shall
cancel a distributor [distributor's] permit if no purchase, sale,
or use of gasoline has been reported by the holder [distributor] for
the prior nine months.
(b) A terminal operator [An aviation fuel dealer's] permit
and a dealer permit are [is permanent and is] valid until [the
permit is] surrendered by the holder or canceled by the
comptroller.
SECTION 12. Section 153.113(a), Tax Code, is amended to
read as follows:
(a) A permit must be posted in a conspicuous place or kept
available for inspection at the principal place of business of the
permit holder [owner]. A copy of the permit must be kept at each
place of business or other place of storage from which gasoline is
removed, sold, [distributed,] or used, and in each motor vehicle
used by the permit holder to transport gasoline purchased by him for
resale[, distribution,] or use.
SECTION 13. Subchapter B, Chapter 153, Tax Code, is amended
by amending Section 153.114 and adding Section 153.1141 to read as
follows:
Sec. 153.114. LIST OF PERMIT HOLDERS [DISTRIBUTORS,
AVIATION FUEL DEALERS, AND GASOLINE JOBBERS]. The comptroller, on
or before December 20 of each year, shall mail or distribute to each
[all] permitted terminal operator, terminal supplier, and
distributor [distributors] a printed alphabetical list of
permitted terminal operators, terminal suppliers, distributors,
and aviation fuel dealers[, and gasoline jobbers. A distributor and
an aviation fuel dealer on the list are qualified to purchase
gasoline tax free during the following calendar year. A gasoline
jobber on the list is qualified to purchase gasoline tax-paid
during the following calendar year]. A supplemental list of
additions and deletions shall be delivered to the terminal
operators, terminal suppliers, and distributors each month. A
current and effective permit or the list furnished by the
comptroller is evidence of the validity of the permit until the
comptroller notifies terminal operators, terminal suppliers, and
distributors of a change in the status of a permit holder.
Sec. 153.1141. INVOICES. (a) A person who purchases
gasoline for delivery into the fuel supply tank of a motor vehicle
described by Section 153.001(12) shall obtain an invoice from the
seller. The person must carry the invoice in the vehicle until the
next purchase of gasoline for delivery into that vehicle.
(b) A person who purchases gasoline in a tax-paid
transaction and who will claim a refund of the tax paid must obtain
an invoice from the seller.
(c) An invoice issued by a seller must:
(1) have the name and address of the seller stamped or
preprinted;
(2) separately state the amount of the tax paid and the
selling price of the gasoline, or state that the tax is included in
the selling price; and
(3) contain spaces for providing:
(A) the name of the purchaser;
(B) the date of delivery of the gasoline;
(C) the number of gallons delivered;
(D) the odometer or hubmeter reading;
(E) the state highway license or unit number;
(F) the type of vehicle or equipment, such as a
motorboat, railway engine, highway vehicle, off-highway vehicle,
refrigeration unit, or stationary engine into which the gasoline is
delivered; and
(G) the signature of the recipient.
(d) If the delivery of tax-paid gasoline is made through an
automated method in which 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.
(e) The seller shall complete the invoice in duplicate and
shall deliver the original invoice to the purchaser not later than
the 30th day after the date on which the gasoline was sold. The
seller shall retain the duplicate.
(f) If the delivery into the fuel supply tanks of a motor
vehicle is through a method in which there is no seller or agent
present, the purchaser or recipient must prepare the required
invoice at the time of delivery.
SECTION 14. Section 153.115(a), Tax Code, is amended to
read as follows:
(a) An interstate trucker who imports gasoline into Texas in
the fuel supply tanks of a motor vehicle operated for commercial
purposes and described by Section 153.001(12)(A), (B), or (C) shall
report and pay the tax, as required by Section 153.118, at the
imposed rate on gasoline that is imported and used on Texas
highways. The number of gallons of gasoline used on Texas highways
shall be computed by dividing the total miles traveled in all states
by the total number of gallons of gasoline delivered into the fuel
supply tanks of the motor vehicle in all states. The mileage factor
obtained shall be divided into the total Texas miles traveled in
order to determine the number of gallons of gasoline used in Texas.
SECTION 15. Section 153.116, Tax Code, is amended by
amending Subsections (a), (b), (c), and (j) and adding Subsection
(a-1) to read as follows:
(a) The comptroller shall determine the amount of security
required of a person permitted as a terminal operator, [distributor
or a gasoline jobber] taking into consideration the amount of motor
fuel [tax] that has or is expected to be removed from the terminal
operated by the person in a calendar month [become due from the
person], any past history of the person as a terminal operator
[distributor or a gasoline jobber], and the necessity to protect
the state against the failure of the person to satisfy a liability
arising under Section 153.1055 [to pay the tax as it becomes due].
(a-1) The comptroller shall determine the amount of
security required of a person permitted as a terminal supplier,
importer, or blender, taking into consideration the amount of tax
that has or is expected to become due from the person in a calendar
month, any past history of the person as a terminal supplier,
importer, or blender, and the necessity to protect the state
against the failure of the person to pay or collect and remit the
tax imposed by this subchapter.
(b) The [If it is determined that the posting of security is
necessary to protect the state, the] comptroller shall determine
the amount of security, if any, required of a person permitted as
[may require] a distributor, exporter, dealer, or aviation fuel
dealer, taking into consideration [or a gasoline jobber to post a
bond. A distributor shall post a bond equal to two times] the [most]
amount of tax that the person has or is expected to be required to
pay to the terminal suppliers or distributors from whom the person
obtains motor fuel in a calendar month, any past history of the
person as a distributor, exporter, dealer, or aviation fuel dealer,
and the necessity to protect the state against the failure of the
person to pay [could accrue on tax-free gasoline purchased or
acquired during a reporting period. A gasoline jobber shall post a
bond in an amount determined by] the [comptroller according to the
past] tax imposed by this subchapter to the terminal suppliers or
distributors from whom the person obtains motor fuel as required by
Section 153.105(f) [payment history of the gasoline jobber. 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 he may require one or more bonds or securities in a
total amount exceeding $600,000].
(c) A person that [distributor or a gasoline jobber 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 continue to require [reimpose a requirement of] a bond or other
security as the comptroller determines necessary to protect the
revenues of the state.
(j) The comptroller shall notify immediately the issuer of a
letter of credit of a final deficiency determination [of the
distributor's delinquent liability] or [a] judgment for delinquent
motor fuels tax, penalties, interest, and costs against a person
[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 deficiency determination or judgment
[comptroller's delinquency claim against the distributor].
SECTION 16. Sections 153.117 and 153.118, Tax Code, are
amended to read as follows:
Sec. 153.117. RECORDS. (a) In addition to the records
required by this section, a terminal operator, terminal supplier,
importer, exporter, blender, distributor, interstate trucker,
dealer, or aviation fuel dealer shall keep any records of motor fuel
removed, sold, or used in this state, and any invoices, bills of
lading, and other pertinent records and papers, as the comptroller
may require for the efficient administration of this chapter [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 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) An exempt user or other person who files a claim for a
refund for gasoline used for nonhighway purposes [A dealer] shall
keep a record showing the number of gallons of:
(1) inventories of gasoline [inventories] on hand at
the first of each month;
(2) all gasoline purchased or received, showing the
permit number [name] of the seller and the date of each purchase [or
receipt];
(3) [all] gasoline [sold or] used for other purposes,
showing the purpose for which the gasoline was used [date of the
sale or use]; [and]
(4) all gasoline deliveries into the fuel supply tanks
of motor vehicles; and
(5) all gasoline lost by fire, theft, or accident.
(c) 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
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.
(d) An aviation fuel dealer or 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
permit number [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.
(e) The records of an aviation fuel dealer or dealer made
under Subsection (d)(3) of this section must show the information
required by Section 153.1053 or 153.1054, as appropriate[:
[(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
a description or number of the aircraft or a description or number
of the aircraft servicing equipment in which gasoline is used].
(f) A person required to file a report under Section 153.118
or who files a refund claim shall keep all records necessary to
substantiate the report or refund claim [The comptroller may
require selective schedules from a distributor, dealer, aviation
fuel dealer, interstate trucker, gasoline jobber, or common or
contract carrier for any purchases, sales, or deliveries of
gasoline when the schedules are not inconsistent with the
requirements of this chapter].
(g) The records required to [must] be kept under this
section shall be retained and made available for inspection by the
comptroller or the attorney general until the fourth anniversary of
the 25th day of the month following the end of the month during
which the transaction to which the record pertains occurred. The
[for four years and are open to inspection at all times by the]
comptroller or [and] the attorney general may require a person
required to keep the records to prepare schedules of a reasonable
number of records for inspection.
[(h) A gasoline jobber 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, distributed, or used, showing
the name of the purchaser and the date of the sale or use; and
[(4) all gasoline lost by fire, theft, or accident.]
Sec. 153.118. REPORTS AND PAYMENTS. (a) On or before the
25th day of each month, a terminal supplier, importer, or blender
[distributor or other person liable to this state for payment of the
tax imposed under this chapter] shall file [all] reports of
gasoline transactions and any supplements [as required by] the
comptroller may require, and shall remit the amount of tax required
to be collected or to be paid during the preceding calendar month.
In addition to any other information required by the comptroller,
the [The] report shall contain [be executed by the distributor, the
distributor's representative, or any other person required to
report and shall be filed with the comptroller in a manner or on a
form provided or approved by the comptroller], for each blending,
removal, importation, or sale of fuel that occurred during the
preceding calendar month:
(1) the name of the exempt user or the permit number of
the person to whom the fuel was removed or sold or for whom it was
imported or blended;
(2) the number of gallons blended, removed, imported,
or sold;
(3) the load number of the gasoline blended, removed,
imported, or sold; and
(4) for imported gasoline, the import verification
number and diversion number, if any [containing complete and
detailed information not inconsistent with the requirements of this
chapter of gasoline transactions. A distributor required to file a
report under this section who has not sold or used any gasoline
during the reporting period shall file with the comptroller the
report setting forth the facts or information. The failure of a
distributor or other person to obtain forms or software from the
comptroller is no excuse for the failure to file a report containing
all the information required to be reported].
(b) On or before the 25th day of each month, a distributor or
exporter shall file a report of gasoline transactions that occurred
during the preceding calendar month and any supplements to that
report the comptroller may require. In addition to any other
information required by the comptroller, the report shall contain,
for each sale or export that occurred during the preceding calendar
month:
(1) the name of the exempt user or the permit number of
the person to whom the fuel was sold, or the destination to which
the fuel was exported;
(2) the number of gallons of gasoline sold or
exported;
(3) the load number of the gasoline sold or exported;
and
(4) for exported gasoline, the diversion number, if
any.
(c) On or before the 25th day of each month, a terminal
operator shall file a report of gasoline received and stored during
the preceding calendar month and any supplements to that report the
comptroller may require. In addition to any other information
required by the comptroller, the report shall contain:
(1) the name, address, and permit number of the person
receiving or storing the gasoline;
(2) the name of the vessel or other method of transport
by which the gasoline is transported to the terminal; and
(3) the number of gallons and type of gasoline being
stored.
(d) On or before the 25th day of the month following the end
of each calendar quarter, an interstate trucker shall file a report
and remit the amount of tax due for the preceding calendar quarter[.
The report shall be properly executed and filed with the
comptroller and must contain complete and detailed information as
the comptroller may require on forms provided for that purpose. An
interstate trucker who has not used any gasoline during the
reporting period shall file with the comptroller the report setting
forth the facts or information. The failure of an interstate
trucker to obtain forms from the comptroller is no excuse for the
failure to file a report containing all the information required to
be reported].
(e) On or before the 25th day of the month following the end
of each calendar quarter, a person who is required by Section
153.105(d) or (e) to pay the tax imposed by this subchapter and who
is not a terminal operator, terminal supplier, importer, blender,
distributor, exporter, or interstate trucker shall file a report
and remit the amount of tax due for the preceding calendar quarter.
(f) A report is not required to be filed by:
(1) an aviation fuel dealer;
(2) a trip permit user; or
(3) a dealer.
(g) A person required to file a report under this section
that has not removed, imported, exported, blended, sold, or used
any gasoline during the reporting period shall file with the
comptroller a report stating that gasoline was not removed,
imported, exported, blended, sold, or used during the reporting
period.
(h) A report required by this section must be signed by the
person required to file the report or the person's representative.
(i) A report required by this section must be filed on a form
or using electronic filing software prescribed by the comptroller.
The failure to obtain a form or software from the comptroller does
not excuse a failure to file a report.
(j) The comptroller may allow a person who holds a permit
containing multiple designations under Section 153.106(d) to file a
single report containing all of the information required for each
of the designations.
[(d) An aviation fuel dealer is not required to file a
report with the comptroller.
[(f) A gasoline jobber is not required to file a report with
the comptroller.]
SECTION 17. Sections 153.119 and 153.1195, Tax Code, are
amended to read as follows:
Sec. 153.119. REFUNDS OF TAXES PAID ON EXEMPTED [EXCEPTED]
USES OF GASOLINE. (a) The following persons may claim a refund
with the comptroller for taxes paid under this subchapter:
(1) a distributor that has paid tax on gasoline that
has been sold to an exempt user in tax-free transactions under
Section 153.1051(a);
(2) an aviation fuel dealer that has paid the tax on
gasoline that will be held for sale in tax-free transactions under
Section 153.1053;
(3) an exempt user that has paid tax on gasoline that
will be used by that person for a purpose exempt under Section
153.104(b); or
(4) a person that has paid tax on gasoline that will be
used by that person for a purpose other than propelling a motor
vehicle on the public highways of this state [A person who exports,
sells to the federal government, to a public school district in this
state, or to a commercial transportation company for exclusive use
in providing public school transportation services to a school
district under Section 34.008, Education Code, without having added
the amount of the tax imposed by this chapter to his selling price,
loses by fire, theft, or accident, or uses gasoline for the purpose
of operating or propelling a motorboat, tractor used for
agricultural purposes, or stationary engine, or for another purpose
except in a vehicle operated or intended to be operated on the
public highways of this state, and who has paid the tax imposed on
gasoline by this chapter either directly or indirectly is, when the
person has complied with the invoice and filing provisions of this
section and the rules of the comptroller, entitled to reimbursement
of the tax paid by him, less any amount allowed distributors under
Section 153.105(e). A public school district that has paid the tax
imposed under this chapter on gasoline used by the district or a
commercial transportation company that has paid the tax imposed
under this chapter on gasoline used by the company exclusively to
provide public school transportation services to a school district
under Section 34.008, Education Code, is entitled to reimbursement
of the amount of the tax paid in the same manner and subject to the
same procedures as other exempted users].
(b) A person may file a refund claim for tax paid on the
gasoline used in motor vehicles that are operated exclusively off
the public highways except for incidental travel on the public
highways as determined by the comptroller, but not for tax paid on
that portion of gasoline used in the incidental travel.
(c) A permitted interstate trucker is entitled to a credit
equivalent to the tax rate for each gallon paid on all gasoline on
which the gasoline tax has been paid and later consumed in vehicles
outside the state. If the amount of credit to which the interstate
trucker is entitled for any calendar quarter exceeds the amount of
tax for which the interstate trucker is liable for gasoline
consumed in the vehicles during the reporting period, the excess
shall be allowed as a credit or refund on a timely filed quarterly
report against tax for which the interstate trucker would be
otherwise liable for any of the three succeeding quarters.
Evidence of the mileage traveled and gallonage consumed and the
payment of the gasoline tax on a form as may be required by or is
satisfactory to the comptroller shall be furnished by an interstate
trucker claiming a credit or tax refund.
(d) If the quantity of gasoline used in Texas by auxiliary
power units or power take-off equipment on any motor vehicle 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 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.
(e) A person who exports or loses by fire, theft, or
accident 100 or more gallons of gasoline on which the tax has been
paid, or sells gasoline in any quantity to the United States
government for the exclusive use of that government on which the tax
has been paid, may file a claim for a refund of the net tax paid to
the state in the manner provided by this chapter or as the
comptroller may direct. The comptroller may bar a person who has
made a false refund claim from purchasing fuel for export under
Section 153.1051(b) without paying the tax imposed by this
subchapter.
(f) The right to receive a refund under this section is not
assignable, except that a person residing or maintaining a place of
business outside the state who purchases 100 or more gallons of
gasoline and promptly [forthwith] exports the entire quantity may
assign the person's [his] right to claim a refund to the exporter
[permitted distributor] from whom the gasoline was purchased [or to
any permitted distributor who has paid the tax on the gasoline
either directly or through another permitted distributor in Texas].
If an exporter [a distributor] secures an assignment and the proof
of export required by the comptroller, the exporter may file a
refund claim [he may credit the tax paid on any monthly report
filed] with the comptroller [within one year after the first day of
the month following the date of delivery of the gasoline to the
exporter].
Sec. 153.1195. CREDIT OR REFUND [CREDITS] FOR BAD DEBTS.
(a) A terminal supplier [permitted distributor] may take a credit
on the monthly report to be filed with the comptroller, or a
distributor may file a refund claim with the comptroller, if:
(1) the terminal supplier or distributor has paid the
taxes imposed by this subchapter on gasoline sold on account;
(2) the terminal supplier or distributor determines
that the account is uncollectable and worthless; [and]
(3) at the time of the transaction, the person to whom
the terminal supplier or distributor sold the gasoline held a
permit or was an exempt user; and
(4) the account is written off as a bad debt on the
accounting books of the terminal supplier or distributor.
(b) The return on which the credit is taken or the refund
claim 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 credit that may be taken under
Subsection (a) [of this section] may equal but may not exceed the
amount of taxes paid on the gasoline to which the written-off
account applies.
(c) If, after a credit is taken or refund is received under
Subsection (a) [of this section], 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) [of this section], 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 [of this
code] beginning on the day that the credit was taken or the refund
was issued.
(d) This section does not apply to a sale of gasoline 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.
(e) A credit or refund under this section must be taken or
claimed at the time the account is written off as a bad debt, but may
only be taken or claimed before the expiration of the applicable
limitation period as provided by Chapter 111 [of this code].
(f) The comptroller may take action against the person whose
account has been written off for collection of the tax owed and any
applicable penalties and interest.
SECTION 18. Section 153.120(a), Tax Code, is amended to
read as follows:
(a) A refund claim must be filed on a form provided by the
comptroller and [,] 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, highway vehicle, off-highway vehicle,
or refrigeration unit or stationary engine into which the fuel is
delivered].
SECTION 19. Section 153.121(a), Tax Code, is amended to
read as follows:
(a) A [Except as provided by this section, a] claim for a
refund, other than a bad debt refund under Section 153.1195, must be
filed with the comptroller within one year after the first day of
the calendar month following the sale, purchase, use, [delivery,]
export, or loss by fire, theft, or accident of gasoline, whichever
period expires latest.
SECTION 20. Section 153.122, Tax Code, is amended to read as
follows:
Sec. 153.122. GASOLINE TAX REFUND PAYMENT. After
examination of the refund claim, the comptroller before issuing a
refund warrant shall deduct from the amount of the refund the
one-fourth of one [two] percent deducted originally by the terminal
supplier and the one-half of one percent deducted originally by the
distributor on the removal [first sale or distribution] of the
gasoline.
SECTION 21. Sections 153.201, 153.202, 153.203, and
153.204, Tax Code, are amended to read as follows:
Sec. 153.201. DIESEL FUEL TAX IMPOSED. (a) A tax is
imposed on the [first sale or] use of diesel fuel in this state.
(b) Diesel fuel is used when it is delivered into a
receptacle on a motor vehicle or other machine from which fuel is
supplied for the propulsion or operation of the motor vehicle or
other machine [If the tax imposed by this section is not paid at the
time of first sale or use, the comptroller may assess all applicable
tax, penalty, and interest against any person buying the fuel for
further resale].
Sec. 153.202. TAX RATES. (a) The diesel fuel tax rate is 20
cents for each [gross or volumetric] gallon or fractional part
[sold or] used in this state except as provided by Subsection (b).
(b) The diesel fuel tax rate for diesel fuel sold [by a
permitted supplier] to a transit company for exclusive use in its
transit vehicles under an exemption certificate issued by the
comptroller is 19.5 cents for each gallon.
Sec. 153.203. EXEMPTIONS [EXCEPTIONS]. (a) Diesel fuel
used for a purpose other than the propulsion of a motor vehicle on
the public highways of this state is exempt from the tax imposed by
this subchapter.
(b) Diesel fuel used by the following persons to propel a
motor vehicle on the public highways of this state is exempt from
the tax imposed by this subchapter:
(1) the federal government;
(2) public school districts; and
(3) commercial transportation companies that provide
public school transportation services to a school district under
Section 34.008, Education Code, and that use the gasoline
exclusively to provide those services.
(c) Diesel fuel brought into this state in the fuel supply
tank of a motor vehicle operated by a person not required to be
permitted as an interstate trucker and used to propel a motor
vehicle on the public highways of this state is exempt from the tax
imposed by this subchapter.
(d) Diesel [The tax imposed by this subchapter does not
apply to:
[(1) diesel fuel delivered by a permitted supplier to
a common or contract carrier, oceangoing vessel (including ship,
tanker, or boat), or barge for export from this state, if the diesel
fuel is moved forthwith outside this state;
[(2) diesel fuel sold by a permitted supplier to the
federal government for its exclusive use;
[(3) diesel fuel sold or delivered by a permitted
supplier to another permitted supplier or to the bulk storage
facility of an agricultural bonded user, or dyed diesel fuel sold or
delivered by a permitted supplier to the bulk storage facility of a
dyed diesel fuel bonded user, to the bulk storage facility of a
diesel tax prepaid user, or to a purchaser who provides a signed
statement as provided by Section 153.205 of this code, but not
including a delivery of tax-free diesel fuel into the fuel supply
tanks of a motor vehicle, except for a motor vehicle owned by the
federal government;
[(4) diesel fuel sold or delivered by a permitted
supplier into the storage facility of a permitted aviation fuel
dealer, from which diesel fuel will be sold or delivered solely into
the fuel supply tanks of aircraft or aircraft servicing equipment;
[(5) diesel fuel sold or delivered by a permitted
supplier 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;
[(6) kerosene when delivered by a permitted supplier
into a storage facility at a retail business from which all
deliveries are exclusively for heating, cooking, lighting, or
similar nonhighway use;
[(7) diesel fuel sold or delivered by one aviation
fuel dealer to another aviation fuel dealer who will deliver the
diesel fuel exclusively into the supply tanks of aircraft or
aircraft servicing equipment;
[(8) diesel fuel sold by a permitted supplier to a
public school district in this state for its exclusive use;
[(9) diesel fuel sold by a permitted supplier to a
commercial transportation company that provides public school
transportation services to a school district under Section 34.008,
Education Code, and used by the company exclusively to provide
those services;
[(10) diesel] fuel used by a commercial passenger
carrier is exempt from the tax imposed by this subchapter [sold by a
permitted supplier 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:
(1) [(A)] is delivered exclusively into the fuel
supply tank of the commercial motor vehicle; and
(2) [(B)] is used exclusively to transport passengers
for compensation or hire between points in this state on a fixed
route or schedule.
(e) The [; or
[(11) the volume of water that is 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.
[(b) The tax imposed by this subchapter does not apply to
the] volume of water, fuel ethanol, biodiesel, or mixtures thereof
that is [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, and
when used to propel a motor vehicle on the public highways of this
state, is exempt from the tax imposed by this subchapter.
Sec. 153.204. COMPUTATION OF TAX. (a) The amount of the
tax shall be computed and paid to the state on the invoiced
[temperature-adjusted volume of] gallons of taxable diesel fuel
removed from a loading rack in this state [sold to dealers or other
persons purchasing diesel fuel for resale, where such sales are
made in single deliveries of 5,000 gallons or more, or in lesser
quantities where required by city ordinance. The comptroller may
publish and distribute a table to be used for converting the
measurement of gross gallons of diesel fuel to temperature-adjusted
gallons of diesel fuel].
(b) The amount of the tax on imported diesel fuel shall be
computed and paid to the state on the invoiced [gross or volumetric]
gallons of taxable diesel fuel received outside this state at a
refinery, terminal, or bulk plant for delivery to a destination in
this state [sold where the sales are made in single deliveries of
less than 5,000 gallons or in quantities less than the maximum
prescribed by city ordinance, if the maximum is less than 5,000
gallons].
(c) The amount of the tax on blended [For a supplier whose]
diesel fuel shall be computed and paid to the state on the number of
gallons that is equal to the difference between the total number of
gallons of blended fuel produced and the number of gallons of
previously taxed fuel used in making the blended fuel [deliveries
are made to retail outlets that are operated by him or deliveries by
him on consignment, the tax on sales to users and consumers shall be
computed on the basis of actual sales].
(d) The amount of tax on all other diesel fuel shall be
computed and paid to the state on the number of gallons sold, used,
or removed in this state.
(e) The amount of tax due under this subchapter shall be
computed on net gallons [If the comptroller is not satisfied with a
tax return or the amount of tax required to be paid to the state by a
supplier who elects to report on the basis of actual sales, the
comptroller may compute and determine the amount required to be
paid on the basis of the beginning inventory, showing the total
gallons of diesel fuel in storage at the location on the first day
of the calendar month, plus the total gallons of diesel fuel
delivered into the storage facility during the month, and less the
total gallons of diesel fuel in the storage facility at the end of
the calendar month].
SECTION 22. Section 153.205, Tax Code, as amended by
Chapters 1263 and 1444, Acts of the 77th Legislature, Regular
Session, 2001, is reenacted and amended to read as follows:
Sec. 153.205. STATEMENT FOR PURCHASE OF DIESEL FUEL TAX
FREE. (a) A person may use a signed statement that complies with
this section to purchase dyed diesel fuel in a tax-free transaction
under Section 153.2061(c) or 153.2062(c), if the fuel is purchased
for the person's own use and if the use is for a purpose exempt under
Section 153.203(a).
(b) [The first sale or use of diesel fuel in this state is
taxable, except that sales of dyed diesel fuel, or of undyed diesel
fuel if the fuel will be used for an agricultural nonhighway
purpose, may be made without collecting the tax if the purchaser
furnishes to a permitted supplier a signed statement, including an
end user number or agricultural exemption number issued by the
comptroller.] A person who wants to use a signed statement to
purchase dyed diesel fuel for an exempt purpose that is not an
agricultural purpose must apply to the comptroller for an end user
number [to be used in conjunction with a signed statement]. A person
who wants to use a signed statement to purchase dyed [or undyed]
diesel fuel for an exempt agricultural [nonhighway] purpose must
apply to the comptroller for an agricultural exemption number [to
be used in conjunction with a signed statement]. The comptroller
may not require an applicant for an end user number or agricultural
exemption number to post bond or other security as a condition for
issuance of the number [A supplier 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 or agricultural exemption number
issued by the comptroller under this section].
(c) [(b)] A signed statement used by the holder of an end
user number must include the purchaser's end user number, be signed
by [sale of dyed diesel fuel may be made without collecting the tax
if] the purchaser, state the exempt purpose or purposes for which
the dyed diesel fuel will be used, and stipulate [furnishes to a
permitted supplier a signed statement, including an end user number
issued by the comptroller, that stipulates] that:
(1) all [none] of the dyed diesel fuel purchased with
[on] the signed statement will be used exclusively for the stated
exempt purpose or purposes [is of a type that may legally be used on
the public highway];
(2) all of the dyed diesel fuel purchased with [on] the
signed statement will be consumed by the purchaser, or all of the
dyed diesel fuel will be consumed by the purchaser in oil or gas
production, as applicable, and will not be resold; and
(3) none of the dyed diesel fuel purchased with [on]
the signed statement will be delivered or permitted to be delivered
into the fuel supply tank of a motor vehicle operated on the public
highways of this state.
(d) [(c)] A signed statement used by the holder of an
agricultural exemption number must include the purchaser's
agricultural exemption number, be signed by the purchaser, and
stipulate [sale of dyed or undyed diesel fuel for an agricultural
nonhighway use may be made without collecting the tax if the
purchaser furnishes to a permitted supplier a signed statement,
including an agricultural exemption number issued by the
comptroller, that stipulates] that:
(1) all of the dyed [and undyed] diesel fuel purchased
with [on] the signed statement will be used exclusively in
nonhighway, agricultural [nonhighway] equipment;
(2) all of the dyed [and undyed] diesel fuel purchased
with [on] the signed statement will be consumed by the purchaser and
will not be resold; and
(3) none of the dyed [or undyed] diesel fuel purchased
with [on] the signed statement will be delivered or permitted to be
delivered into the fuel supply tank of a motor vehicle operated on
the public highways of this state.
(e) [(d)] A person may not use [make a tax-free purchase of
any diesel fuel under this section using] a signed statement:
(1) for the purchase of more than 7,400 gallons of dyed
[or undyed] diesel fuel in a single transaction or delivery; [or]
(2) for the purchase of dyed diesel fuel in a calendar
month in which the person has previously purchased more than:
(A) 10,000 gallons of dyed diesel fuel from all
sources;
(B) 25,000 gallons of dyed diesel fuel from all
sources if the exempt purpose stated in the signed statement is the
production of [purchaser stipulates in the signed statement that
all of the fuel will be consumed by the purchaser in] oil or gas
[production]; or
(C) 25,000 gallons of dyed [or undyed] diesel
fuel from all sources if the exempt purpose stated in the signed
statement is agriculture; or
(3) for the purchase of undyed diesel fuel [purchased
for agricultural purposes by a person who furnishes to the
permitted supplier, in conjunction with the signed statement, an
agricultural exemption number issued by the comptroller].
[(e) Any gallons purchased in excess of the limitations
prescribed by Subsection (d) constitute a taxable purchase. The
purchaser paying the tax on dyed or undyed diesel fuel in excess of
the limitations prescribed by Subsection (d) may claim a refund of
the tax paid on any dyed or undyed diesel fuel used for nonhighway
purposes under Section 153.222.]
(f) [A supplier may not make a tax-free sale of any diesel
fuel under this section to a purchaser using a signed statement:
[(1) for the sale of more than 7,400 gallons of dyed or
undyed diesel fuel in a single transaction or delivery; or
[(2) in a calendar month in which the supplier has
previously sold more than:
[(A) 10,000 gallons of dyed diesel fuel to the
purchaser;
[(B) 25,000 gallons of dyed diesel fuel to the
purchaser if the purchaser stipulates in the signed statement that
all of the fuel will be consumed by the purchaser in oil or gas
production; or
[(C) 25,000 gallons of dyed or undyed diesel fuel
to the purchaser if the purchaser furnishes to the permitted
supplier, in conjunction with the signed statement, an agricultural
exemption number issued by the comptroller.
[(g)] Any gallons sold in excess of the limitations
prescribed by Subsection (e) [(f)] constitute a taxable sale. The
terminal supplier or distributor shall collect the tax from the
purchaser and remit the tax to the comptroller at the time and in
the manner provided by this subchapter. The purchaser [paying the
tax on dyed or undyed diesel fuel in excess of the limitations
prescribed by Subsection (f)] may, however, claim a refund of the
tax paid on any dyed [or undyed] diesel fuel used for nonhighway
purposes under Section 153.222.
(g) [(h) The signed statement and end user number or
agricultural exemption number from the purchaser as provided by
this section relieves the permitted supplier from the burden of
proof that the sale of dyed diesel fuel or of undyed diesel fuel for
an agricultural nonhighway purpose was not taxable to the purchaser
and remains in effect unless:
[(1) the statement is revoked in writing by the
purchaser or supplier; or
[(2) the comptroller notifies the supplier in writing
that the purchaser may no longer make tax-free purchases.
[(i)] A taxable use of any part of the dyed [or undyed]
diesel fuel purchased under a signed statement shall, in addition
to any criminal penalty, forfeit the right of the person to purchase
dyed [or undyed] diesel fuel tax-free [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 supplier, is a debt of the purchaser to the supplier until
paid, and is recoverable at law in the same manner as the purchase
price of the fuel]. The purchaser [person] may, however, claim a
refund of the tax paid on any dyed [or undyed] diesel fuel used for
nonhighway purposes under Section 153.222.
SECTION 23. Subchapter C, Chapter 153, Tax Code, is amended
by amending Sections 153.206, 153.207, 153.208, and 153.209 and
adding Sections 153.2061-153.2067 to read as follows:
Sec. 153.206. COLLECTION AND PAYMENT OF TAX; ALLOWANCES.
(a) Except as otherwise provided by this section, [A supplier who
makes a sale or use of diesel fuel in this state for a purpose other
than those exceptions listed in Section 153.203 of this code shall
at the time of sale or use be liable to the state for] the tax
imposed by [in] this subchapter [and] shall be collected by the
terminal supplier from the purchaser on the removal of diesel fuel
from a terminal, and the tax shall be paid to the comptroller at the
time and [report and pay the tax] in the manner provided by this [in
the] subchapter.
(b) The tax imposed by this subchapter on [A dealer shall
collect the tax at the rate imposed on each gallon of] diesel fuel
imported outside the bulk transfer system shall be computed on the
entry of the fuel into this state and shall be paid by the importer
to the comptroller at the time and in the manner provided by this
subchapter [delivered by him into the fuel supply tanks of a motor
vehicle and shall report and pay to the state any tax collected that
has not been paid to a permitted supplier].
(c) The tax imposed by this subchapter on fuel blended
outside the bulk transfer system shall be computed at the time of
blending and shall be paid by the blender [A dyed diesel fuel bonded
user, agricultural bonded user, or other user, except a diesel tax
prepaid user, shall report and pay to the state the tax at the rate
imposed on each gallon of diesel fuel delivered by him into the fuel
supply tanks of a motor vehicle, unless the tax has been paid to a
permitted supplier or a dealer, or, as a diesel tax prepaid user,
the tax has been prepaid directly] to the comptroller at the time
and in the manner provided by this subchapter.
(d) An interstate trucker who imports diesel fuel into Texas
in the fuel supply tanks of a motor vehicle operated for commercial
purposes and described by Section 153.001(12)(A), (B), or (C) shall
report and pay the tax at the rate imposed on diesel fuel that is
imported and used on Texas highways. The number of gallons of
diesel fuel used on Texas highways shall be computed by dividing the
total miles traveled in all states by the total number of gallons of
diesel fuel delivered into the fuel supply tanks of the motor
vehicle in all states. The mileage factor obtained shall be divided
into the total Texas miles traveled in order to determine the number
of gallons of diesel fuel used in Texas. An interstate trucker
shall remit all taxes due by him based on the diesel fuel tax rate
for each gallon on diesel fuel consumed within the state at the time
of the filing of the quarterly report.
(e) A person who uses diesel [Diesel] fuel for a use that is
not exempted under Section 153.203 and on which the tax has not been
previously paid is liable to this state for the tax and shall report
and pay the tax to the comptroller as provided by this subchapter
[deemed to be used when it is delivered into fuel supply tanks].
(f) Except as provided by Sections 153.2061, 153.2062,
153.2063, 153.2064, and 153.2065, a person who sells or removes
[If] diesel fuel on which the tax has not been previously paid
shall, at the time of the sale or removal, collect the tax from the
purchaser or recipient of the diesel fuel and shall report and pay
the tax to the comptroller as provided by this subchapter. The tax
is in addition to the selling price, and the tax becomes part of the
purchase price and is a debt from the buyer to the seller until paid
or until the seller receives a bad debt credit or refund from the
comptroller [is purchased, in a single delivery of 5,000 gallons or
more, or in lesser quantities where required by city ordinance, by
any person for the purpose of resale, the seller, supplier, or
broker shall sell the product to the retailer or any other person
purchasing the product on the basis of temperature-corrected
gallonage to 60 degrees Fahrenheit and the tax shall be computed and
paid over to the state on the temperature-corrected basis. All
other sales shall be reported to the comptroller on the basis of
gross or volumetric gallons of taxable diesel fuel sold].
(g) Except as provided by Sections 153.2062(b), 153.2063,
153.2064(b), and 153.2065, a person who pays the tax imposed by this
subchapter on a purchase of diesel fuel and who resells the diesel
fuel shall add the amount of the tax to the selling price and
collect the tax from the purchaser so that the tax is paid
ultimately by the person who uses the diesel fuel. When the tax is
added, the tax becomes part of the purchase price and is a debt from
the buyer to the seller until paid or until the seller receives a
bad debt credit or refund from the comptroller [For each one degree
Fahrenheit that the temperature of diesel fuel taken at the time of
loading for sale or consignment differs from 60 degrees Fahrenheit,
an adjustment in the contract price shall be made equal to the
stipulated value of four-hundredths of one percent of the total
volume delivered].
(h) The tax on one-half of one [two] percent of the taxable
gallons of diesel fuel removed from a terminal by a terminal
supplier [sold] in this state shall be allocated to the distributor
who purchases the diesel fuel from the terminal supplier, for the
expenses of [making the first taxable sale or use of the diesel fuel
and timely paying the tax to the state for the expenses of
collecting, accounting for,] reporting[, and remitting the tax
collected] and [for] keeping records as required by this
subchapter. The distributor shall pay to the terminal supplier the
amount of tax due on the diesel fuel purchased, minus the one-half
of one percent.
(i) The tax on one-fourth of one percent of the taxable
gallons of diesel fuel removed from a terminal by a terminal
supplier in this state shall be allocated to the terminal supplier
that removes the diesel fuel and timely pays the tax to the state.
(j) The amount of tax required to be paid to the comptroller
under Section 153.221(a) is the amount of tax due under this
section, after the deductions prescribed by Subsections (h) and (i)
[A dyed diesel fuel bonded user, an agricultural bonded user, or a
permitted interstate trucker is entitled to deduct one-half of one
percent of the taxable gallons of diesel fuel on timely payment of
the taxes to this state for the expense of recordkeeping,
reporting, and remitting the tax].
(k) A terminal supplier shall allow a distributor to pay the
tax on transactions that occur during a calendar month as late as
the 23rd day of the next month if:
(1) the distributor agrees to pay the tax by
electronic funds transfer or cashier's check;
(2) the distributor agrees that payment by electronic
funds transfer or cashier's check will be received in the terminal
supplier's account or by the terminal supplier not later than 5 p.m.
on that 23rd day;
(3) the distributor is not delinquent in paying any
other amount the distributor owes the terminal supplier; and
(4) the distributor has not failed during the
preceding year to remit the tax to the terminal supplier by 5 p.m.
on the 23rd day of the month after the month of the transaction if
the distributor has agreed to those payments [(j) 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 for the purpose of propelling a vehicle on the public highways
of this state].
Sec. 153.2061. EXCEPTIONS TO COLLECTION OF TAX BY TERMINAL
SUPPLIER. (a) A terminal supplier is not required to collect the
tax imposed by this subchapter on dyed diesel fuel removed by the
terminal supplier to a distributor if the terminal supplier
designates to the comptroller:
(1) the permit number of the distributor;
(2) the number of gallons removed;
(3) the date of removal; and
(4) any other information required by the comptroller.
(b) A terminal supplier is not required to collect the tax
imposed by this subchapter on diesel fuel removed by the terminal
supplier to an exempt user other than a diesel exempt user if the
terminal supplier designates to the comptroller:
(1) the name and address of the exempt user;
(2) the number of gallons removed;
(3) the date of removal;
(4) whether the diesel fuel sold was dyed or undyed;
and
(5) any other information required by the comptroller.
(c) A terminal supplier is not required to collect the tax
imposed by this subchapter on dyed diesel fuel removed by the
terminal supplier to a diesel exempt user if the terminal supplier
designates to the comptroller:
(1) the permit number, agricultural exemption number,
or end user number of the diesel exempt user;
(2) the number of gallons removed;
(3) the date of removal; and
(4) any other information required by the comptroller.
(d) A terminal supplier is not required to collect the tax
imposed by this subchapter on dyed diesel fuel removed by the
terminal supplier to an aviation fuel dealer for delivery into the
storage facility of the aviation fuel dealer if the terminal
supplier designates to the comptroller:
(1) the permit number of the aviation fuel dealer;
(2) the number of gallons removed;
(3) the date of removal; and
(4) any other information required by the comptroller.
(e) A terminal supplier is not required to collect the tax
imposed by this subchapter on dyed kerosene removed by the terminal
supplier to a kerosene dealer for delivery into the storage
facility of the kerosene dealer, if the terminal supplier
designates to the comptroller:
(1) the permit number of the kerosene dealer;
(2) the number of gallons removed;
(3) the date of removal; and
(4) any other information required by the comptroller.
(f) A terminal supplier is not required to collect the tax
imposed by this subchapter on diesel fuel removed by the terminal
supplier to an exporter if:
(1) the exporter designates to the terminal supplier
the destination for delivery of the fuel to a location outside this
state;
(2) the exporter is licensed in the state of
destination and has supplied the terminal supplier with that
license number;
(3) the exporter has not been barred from making
tax-free exports by the comptroller for making false refund claims;
and
(4) the terminal supplier collects and remits to the
state of destination all taxes imposed on that fuel by the
destination state.
Sec. 153.2062. EXCEPTIONS TO COLLECTION OF TAX BY
DISTRIBUTOR. (a) A distributor is not required to collect the tax
imposed by this subchapter on dyed diesel fuel sold to another
distributor if the distributor who sells the fuel designates to the
comptroller:
(1) the permit number of the distributor to whom the
fuel is sold;
(2) the number of gallons sold;
(3) the date of sale; and
(4) any other information required by the comptroller.
(b) A distributor is not required to collect the tax imposed
by this subchapter on diesel fuel sold by the distributor to an
exempt user other than a diesel exempt user if the distributor
designates to the comptroller:
(1) the name and address of the exempt user;
(2) the number of gallons sold;
(3) the date of sale;
(4) whether the diesel fuel sold was dyed or undyed;
and
(5) any other information required by the comptroller.
(c) A distributor is not required to collect the tax imposed
by this subchapter on dyed diesel fuel sold by the distributor to a
diesel exempt user if the distributor designates to the
comptroller:
(1) the permit number, agricultural exemption number,
or end user number of the diesel exempt user;
(2) the number of gallons sold;
(3) the date of sale; and
(4) any other information required by the comptroller.
(d) A distributor is not required to collect the tax imposed
by this subchapter on dyed diesel fuel sold by the distributor and
delivered into the storage facility of an aviation fuel dealer if
the distributor designates to the comptroller:
(1) the permit number of the aviation fuel dealer;
(2) the number of gallons sold;
(3) the date of sale; and
(4) any other information required by the comptroller.
(e) A distributor is not required to collect the tax imposed
by this subchapter on dyed kerosene sold by the distributor and
delivered into the storage facility of a kerosene dealer if the
distributor designates to the comptroller:
(1) the permit number of the kerosene dealer;
(2) the number of gallons sold;
(3) the date of sale; and
(4) any other information required by the comptroller.
Sec. 153.2063. EXCEPTION TO COLLECTION OF TAX BY KEROSENE
DEALER. A kerosene dealer is not required to collect the tax
imposed by this subchapter on kerosene sold by the kerosene dealer
for heating, cooking, lighting, or a similar nonhighway purpose if
the kerosene dealer retains records for each sale of the fuel
stating:
(1) the name of the person to whom the kerosene is
sold;
(2) the number of gallons sold;
(3) the date of sale;
(4) whether the kerosene sold was dyed or undyed; and
(5) any other information required by the comptroller.
Sec. 153.2064. EXCEPTION TO COLLECTION OF TAX BY AVIATION
FUEL DEALER. (a) An aviation fuel dealer is not required to
collect the tax imposed by this subchapter on dyed diesel fuel sold
by the aviation fuel dealer and delivered into the storage facility
of another aviation fuel dealer if the aviation fuel dealer who
sells the fuel designates to the comptroller:
(1) the permit number of the aviation fuel dealer to
whom the fuel is sold;
(2) the number of gallons sold;
(3) the date of sale; and
(4) any other information required by the comptroller.
(b) An aviation fuel dealer is not required to collect the
tax imposed by this subchapter on diesel fuel sold by the aviation
fuel dealer and delivered into the fuel supply tanks of aircraft or
aircraft servicing equipment if the aviation fuel dealer retains
records for each sale of that fuel stating:
(1) the name and address of the purchaser;
(2) the registration or "N" number of the aircraft or
the number or a description of the aircraft servicing equipment;
(3) the number of gallons sold;
(4) the date of sale;
(5) whether the diesel fuel sold was dyed or undyed;
and
(6) any other information required by the comptroller.
Sec. 153.2065. EXCEPTION TO COLLECTION OF TAX BY DEALER. A
dealer is not required to collect the tax imposed by this subchapter
on diesel fuel sold by the dealer to an exempt user other than a
diesel exempt user, if the dealer retains records for each sale of
that fuel stating:
(1) the name and address of the exempt user;
(2) the number of gallons sold;
(3) the date of sale;
(4) whether the diesel fuel sold was dyed or undyed;
and
(5) any other information required by the comptroller.
Sec. 153.2066. LIABILITY OF TERMINAL OPERATOR. (a) A
terminal operator is jointly and severally liable to this state for
the tax imposed by this subchapter on fuel removed from the terminal
by a position holder that is not the terminal operator or a
permitted terminal supplier. The terminal operator shall remit the
tax to the comptroller at the time and in the manner prescribed for
a terminal supplier.
(b) A terminal operator is relieved of liability under
Subsection (a) if the terminal operator establishes that, at the
time of the removal:
(1) the terminal operator held a valid terminal
operator's permit;
(2) the terminal operator had an unexpired
notification certificate from the position holder as required by
the Internal Revenue Service; and
(3) the terminal operator did not have a reason to
believe that any information in the certificate was false.
Sec. 153.2067. PRESUMPTION; BURDEN OF PROOF. (a) It is
presumed that all diesel fuel removed, imported, blended, or sold
in this state will be used to propel a motor vehicle on the public
highways of this state. It is presumed that all diesel fuel used in
this state is used to propel a motor vehicle on the public highways
of this state.
(b) A terminal supplier has the burden of proving that an
exception for collection of the tax under Section 153.2061 applies
to a removal of diesel fuel by the terminal supplier. The burden is
satisfied if the terminal supplier designates to the comptroller
the information required by Section 153.2061 for each removal of
diesel fuel.
(c) A distributor has the burden of proving that an
exception for collection of the tax under Section 153.2062 applies
to a sale of diesel fuel by the distributor. For a sale to a person
other than a signed statement user, the burden is satisfied if the
distributor designates to the comptroller the information required
by Section 153.2062 for each sale of diesel fuel. For a sale to a
signed statement user, the burden is satisfied if the distributor
designates to the comptroller the information required by Section
153.2062(c), receives from the purchaser a signed statement that
satisfies the requirements of Section 153.205, and if, requested by
the comptroller, provides the signed statement to the comptroller.
(d) A kerosene dealer has the burden of proving that an
exception for collection of the tax under Section 153.2063 applies
to a sale of diesel fuel by the kerosene dealer. The burden is
satisfied if the kerosene dealer retains records containing the
information required by Section 153.2063 for each sale of diesel
fuel and, if requested by the comptroller, supplies the information
to the comptroller.
(e) An aviation fuel dealer has the burden of proving that
an exception for collection of the tax under Section 153.2064
applies to a sale of diesel fuel by the aviation fuel dealer. The
burden is satisfied if the aviation fuel dealer retains records
containing the information required by Section 153.2064 for each
sale of diesel fuel and, if requested by the comptroller, supplies
the information to the comptroller.
(f) A dealer has the burden of proving that an exception for
collection of the tax under Section 153.2065 applies to a sale of
diesel fuel by the dealer. The burden is satisfied if the dealer
retains records containing the information required by Section
153.2065 for each sale of diesel fuel and, if requested by the
comptroller, supplies the information to the comptroller.
(g) A user has the burden of proving that an exemption under
Section 153.203 applies to a use of diesel fuel by the user.
Sec. 153.207. PERMITS; APPLICATION. (a) A terminal
operator, terminal supplier, importer, exporter, blender,
distributor [dyed diesel fuel bonded user, agricultural bonded
user], interstate trucker[, diesel tax prepaid user], commercial
passenger carrier, dealer, kerosene dealer, or aviation fuel
dealer[, or diesel fuel jobber] shall file an application with the
comptroller for a permit to engage in that business in this state.
A person who wishes to purchase dyed diesel fuel as a dyed diesel
fuel bonded user or agricultural bonded user shall file an
application with the comptroller for a permit under Section 153.209
[one of the nonassignable permits provided for in this subchapter].
(b) The comptroller shall promulgate the application form,
which must contain the following information:
(1) the name under which the applicant transacts or
intends to transact business and, for a terminal supplier's permit,
the applicant's registration number under Section 4101, Internal
Revenue Code of 1986;
(2) the principal office, residence, or place of
business in Texas of the applicant;
(3) if the applicant is not an individual, names of the
principal officers of an applicant corporation, names of each
partner in an applicant partnership, and the office, street, or
post office address of each; and
(4) other information required by the comptroller.
(c) The comptroller shall determine from the information
shown in the application or other investigation the kind and class
of permit to be issued.
(d) The comptroller may issue a single permit containing
multiple designations to an applicant who wishes to engage in more
than one category of business for which a permit is required.
(e) The comptroller may deny or revoke a permit if false
information is submitted on the application or on a required fuels
tax report or supplement.
Sec. 153.208. PERMITS NOT ASSIGNABLE [SUPPLIER'S PERMIT].
A permit issued under this subchapter may not be assigned. [(a) A
person performing the functions of a supplier shall obtain a
supplier's permit.
[(b) A supplier's permit authorizes a person to sell
tax-free diesel fuel to:
[(1) another supplier;
[(2) a dyed diesel fuel bonded user or agricultural
bonded user;
[(3) an aviation fuel dealer;
[(4) a diesel prepaid user if delivered into his bulk
storage facilities only; and
[(5) a person issuing a signed statement.
[(c) A supplier's permit authorizes a person to supply
tax-paid diesel fuel to suppliers and other purchasers.
[(d) A supplier may not make a tax-free sale or delivery of
diesel fuel into the fuel supply tanks of a motor vehicle other than
a motor vehicle owned by the United States.]
Sec. 153.209. DYED DIESEL FUEL BONDED USER AND AGRICULTURAL
BONDED USER PERMITS. (a) A person who holds a dyed diesel fuel
bonded user permit may purchase any quantity [authorizes a user to
purchase more than 10,000 gallons a month] of dyed diesel fuel in a
tax-free transaction under Section 153.2061(c) or 153.2062(c) if:
(1) the fuel is purchased for the person's own use;
(2) the use is for a purpose exempt under Section
153.203(a) and is not for an agricultural purpose; and
(3) the quantity purchased is the amount reasonably
necessary for the person's own use for an exempt purpose [for the
user's own use].
(b) A person who holds an [An] agricultural bonded user
permit may purchase any quantity of [authorizes a user to purchase
more than 10,000 gallons of] dyed [and undyed] diesel fuel in a
tax-free transaction under Section 153.2061(c) or 153.2062(c) if:
(1) the fuel is purchased for the person's own use;
(2) the use is for an agricultural purpose that is
exempt under Section 153.203(a); and
(3) the quantity purchased is the amount reasonably
necessary for the person's [for the user's] own use for nonhighway,
agricultural purposes [only].
[(c) 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 or undyed
diesel fuel for the purchaser's own use for agricultural purposes
only, using a signed statement under Section 153.205.]
SECTION 24. Sections 153.215(a) and (b), Tax Code, are
amended to read as follows:
(a) A terminal supplier permit, an importer permit, an
exporter permit, a blender permit, a distributor permit, a kerosene
dealer permit, an aviation fuel dealer [supplier's] permit, a dyed
diesel fuel bonded user permit, and an agricultural bonded user
permit are [permanent and] valid as long as the holder [permittee]
has in force and effect the required bond or security and furnishes
timely reports and supplements as required, or until [the permit
is] surrendered by the holder or canceled by the comptroller. The
comptroller shall cancel a permit if no purchase, sale, or use of
diesel fuel has been reported by the holder [permittee] for the
prior nine months.
(b) A terminal operator permit and a dealer [An aviation
fuel dealer's] permit are [is permanent and is] valid until [the
permit is] surrendered by the holder or canceled by the
comptroller.
SECTION 25. Section 153.216(a), Tax Code, is amended to
read as follows:
(a) A permit must be posted in a conspicuous place or kept
available for inspection at the principal place of business of the
permit holder [owner]. A copy of the permit must be kept at each
place of business or other place of storage from which diesel fuel
is removed, sold, [distributed,] or used, and in each motor vehicle
used by the permit holder to transport diesel fuel purchased by him
for resale[, distribution,] or use.
SECTION 26. Section 153.217, Tax Code, is amended to read as
follows:
Sec. 153.217. LIST OF PERMIT HOLDERS [SUPPLIERS, DYED
DIESEL FUEL BONDED USERS, AGRICULTURAL BONDED USERS, AVIATION FUEL
DEALERS, AND DIESEL FUEL JOBBERS]. [(a)] The comptroller, on or
before December 20 of each calendar year, shall mail or distribute
to each terminal operator, terminal supplier, and distributor a
printed alphabetical list of the names of persons who hold end user
numbers and agricultural exemption numbers and of the names of
permitted terminal operators, terminal suppliers, distributors,
dyed diesel fuel bonded users, agricultural bonded users,
commercial passenger carriers, aviation fuel dealers, and kerosene
dealers [diesel fuel jobbers. A permitted supplier, an
agricultural bonded user, and an aviation fuel dealer on the list
are qualified to purchase dyed or undyed diesel fuel tax free during
the following calendar year. A dyed diesel fuel bonded user on the
list is qualified to purchase dyed diesel fuel tax free during the
following calendar year. A diesel fuel jobber on the list is
qualified to purchase diesel fuel tax-paid during the following
calendar year]. A supplemental list of additions and deletions
shall be delivered to each terminal operator, terminal supplier,
and distributor each month. A current and effective permit or the
list furnished by the comptroller is evidence of the validity of the
permit or end user number until the comptroller notifies terminal
operators, terminal suppliers, and distributors of a change in the
status of a permit holder or end user number.
[(b) The comptroller, on or before January 31 of each
calendar year, shall mail or distribute to each supplier a printed
alphabetical list of diesel tax prepaid user permittees who are
qualified to purchase diesel fuel tax free during the ensuing
calendar year. A supplemental list of additions and deletions
shall be delivered to each supplier each month.]
SECTION 27. Section 153.218, Tax Code, is amended by
amending Subsections (a), (b), (c), and (j), and adding Subsections
(a-1) and (a-2) to read as follows:
(a) The comptroller shall determine the amount of security
required of a person permitted as a terminal operator, [supplier,
dyed diesel fuel bonded user, agricultural bonded user, or diesel
fuel jobber] taking into consideration the amount of motor fuel
[the tax] that has or is expected to be removed [become due] from
the terminal operated by the person in a calendar month, any past
history of the person as a terminal operator [supplier, dyed diesel
fuel bonded user, agricultural bonded user, or diesel fuel jobber],
and the necessity to protect the state against the failure of the
person to satisfy a liability arising under Section 153.2066 [to
pay the tax as it becomes due].
(a-1) The comptroller shall determine the amount of
security required of a person permitted as a terminal supplier,
importer, or blender, taking into consideration the amount of tax
that has or is expected to become due from the person in a calendar
month, any past history of the person as a terminal supplier,
importer, or blender, and the necessity to protect the state
against the failure of the person to pay or collect and remit the
tax imposed by this subchapter.
(a-2) The comptroller shall determine the amount of
security, if any, required of a person permitted as a distributor,
exporter, dealer, kerosene dealer, or aviation fuel dealer, taking
into consideration the amount of tax that the person has or is
expected to be required to pay to terminal suppliers or
distributors from whom the person obtains motor fuel in a calendar
month, any past history of the person as a distributor, exporter,
dealer, kerosene dealer, or aviation fuel dealer, and the necessity
to protect the state against the failure of the person to pay the
tax imposed by this subchapter to the terminal suppliers or
distributors from whom the person obtains motor fuel as required by
Section 153.206(g).
(b) If it is determined that the posting of security is
necessary to protect the state, the comptroller may require a
commercial passenger carrier [supplier], dyed diesel fuel bonded
user, or agricultural bonded user to post a surety bond equal to two
times the most amount of tax that could accrue on tax-free diesel
fuel purchased or acquired during a reporting period. [A diesel
fuel jobber shall post a bond in an amount determined by the
comptroller according to the past payment history of the jobber.
The minimum bond for a supplier or diesel fuel jobber is $30,000,
and the maximum bond is $600,000.] The minimum bond for a dyed
diesel fuel bonded user or agricultural bonded user is $10,000, and
the maximum bond is $600,000. However, if the comptroller
determines there is undue risk of loss of tax revenues, the
comptroller may require one or more bonds or securities in a total
amount exceeding $600,000.
(c) A person that [supplier, dyed diesel fuel bonded user,
agricultural bonded user, or diesel fuel jobber 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 continue to
require [reimpose a requirement of] a bond or other security as the
comptroller determines is necessary to protect the revenues of the
state.
(j) The comptroller shall notify immediately the issuer of a
letter of credit of a final deficiency determination [of the
supplier's, dyed diesel fuel bonded user's, or agricultural bonded
user's delinquent liability] or [a] judgment for delinquent motor
fuels tax, penalties, interest, and costs against a person [secured
in any action by this state to recover diesel taxes, costs,
penalties, and interest found to be due this state by a supplier,
dyed diesel fuel bonded user, or agricultural bonded user] 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 deficiency determination or judgment [comptroller's
delinquency claim against the supplier, dyed diesel fuel bonded
user, or agricultural bonded user].
SECTION 28. Subchapter C, Chapter 153, Tax Code, is amended
by amending Sections 153.219, 153.220, 153.221, 153.222, and
153.2225 and adding Section 153.2201 to read as follows:
Sec. 153.219. RECORDS. (a) In addition to the records
required by this section, a terminal operator, terminal [A]
supplier, importer, exporter, blender, distributor, interstate
trucker, commercial passenger carrier, dealer, kerosene dealer,
aviation fuel dealer, dyed diesel fuel bonded user, agricultural
bonded user, or signed statement user shall keep any records of
motor fuel removed, sold, or used in this state, and any invoices,
bills of lading, and other pertinent records and papers, as the
comptroller may require for the efficient administration of this
chapter [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 refined, compounded, or blended;
[(3) all diesel fuel purchased or received, showing
the name of the seller, and the date of each purchase or receipt;
[(4) all diesel fuel sold, distributed, or used
showing the name of each purchaser and the date of sale,
distribution, or use; and
[(5) all diesel fuel lost by fire, theft, or
accident].
(b) An exempt user, diesel exempt user, [A 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, the date of each purchase or receipt;
[(3) all diesel fuel sold, distributed, or used; and
[(4) all diesel fuel lost by fire, theft, or accident.
[(c) A dyed diesel fuel bonded user, an agricultural bonded
user,] or other person [user with nonhighway equipment uses] who
purchases dyed diesel fuel or files a claim for a refund for undyed
diesel fuel used for nonhighway purposes shall keep a record
showing the number of gallons of:
(1) inventories of all dyed and undyed diesel fuel on
hand at the first of each month;
(2) all dyed and undyed diesel fuel purchased or
received, showing the permit number [name] of the seller and the
date of each purchase;
(3) all diesel fuel deliveries into the fuel supply
tanks of motor vehicles, showing the type of fuel delivered;
(4) diesel fuel used for other purposes, showing the
type of fuel delivered and the purpose for which used; and
(5) all dyed and undyed diesel fuel lost by fire,
theft, or accident.
(c) A kerosene dealer, [(d) An] aviation fuel dealer, or
dealer shall keep a record showing the number of gallons of:
(1) all dyed and undyed diesel fuel inventories on
hand at the first of each month;
(2) all dyed and undyed diesel fuel purchased or
received, showing the permit number [name] of the seller and the
date of each purchase or receipt;
(3) all dyed and undyed diesel fuel sold[,
distributed,] or used [in aircraft or aircraft servicing
equipment]; and
(4) all dyed and undyed diesel fuel lost by fire,
theft, or accident.
(d) [(e)] The records of a kerosene dealer, [an] aviation
fuel dealer, or dealer made under Subsection (c)(3) [(d)(3) of this
section] must contain the information required by Section 153.2063,
153.2064, or 153.2065, as appropriate [show:
[(1) the name of the purchaser or user of diesel fuel;
[(2) the date of the sale, distribution, or use of the
diesel fuel; and
[(3) the registration or "N" number of the airplane or
a description or number of the aircraft servicing equipment in
which diesel fuel is used].
(e) [(f)] A permitted 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 delivered into the fuel supply tanks of
motor vehicles in Texas.
(f) A person required to file a report under Section 153.221
or who files a refund claim shall keep all records necessary to
substantiate the report or refund claim.
(g) [The comptroller may require selective schedules from a
supplier, dealer, aviation fuel dealer, interstate trucker, diesel
fuel jobber, or common or contract carrier for a purchase, sale, or
delivery of diesel fuel if the schedules are not inconsistent with
the requirements of this chapter.
[(h)] The records required to [must] be kept under this
section shall be retained and made available for inspection by the
comptroller or the attorney general until the fourth anniversary of
the 25th day of the month following the end of the month during
which the transaction to which the record pertains occurred. The
[for four years and are open to inspection at all times by the]
comptroller or the attorney general may require a person required
to keep the records to prepare schedules of a reasonable number of
records for inspection.
[(i) A diesel fuel jobber 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, distributed, or used,
showing the name of the purchaser and the date of the sale or use;
and
[(4) all diesel fuel lost by fire, theft, or accident.
[(j) A supplier shall keep:
[(1) an itemized statement showing by load the number
of gallons of all diesel fuel received during the preceding
calendar month for export;
[(2) an itemized statement showing by load the number
of gallons of all diesel fuel exported from this state by
destination state or country;
[(3) an itemized statement showing by load the number
of gallons of all diesel fuel imported during the preceding
calendar month by state or country of origin;
[(4) an itemized statement differentiating between
dyed and undyed diesel fuel and showing by purchaser, end user
number, or agricultural exemption number the number of gallons of
dyed and undyed diesel fuel sold tax free to a purchaser using a
signed statement in accordance with Section 153.205; and
[(5) an itemized statement showing by purchaser and
permit number the number of gallons of dyed and undyed diesel fuel
sold tax free to dyed diesel fuel bonded users and agricultural
bonded users.]
Sec. 153.220. INVOICES. (a) A person who purchases diesel
fuel for delivery [of diesel fuel] into the fuel supply tank [tanks]
of a motor vehicle [operated for commercial purposes and] described
by Section 153.001(12) shall obtain an invoice from the seller. The
person must carry the invoice in the vehicle until the next purchase
of fuel for delivery into that vehicle [be evidenced by an invoice
issued in duplicate by a dealer or an invoice or a distribution log
issued by a dyed diesel fuel bonded user, an agricultural bonded
user, or other user].
(b) [An invoice must be carried in the vehicle until the
next purchase or delivery of fuel into that vehicle. A distribution
log must be carried with the vehicle until the end of the calendar
month.
[(c)] A person who purchases diesel fuel in a tax-paid
transaction and who will claim a refund of the tax paid must obtain
an invoice from the seller.
(c) An invoice issued by a seller [dealer shall also issue
an invoice for a sale, distribution, or use for a purpose other than
propelling a motor vehicle on the public highways of this state.
[(d) The invoice or distribution log] must [contain]:
(1) have the name and address of the seller [person
making the delivery] stamped or preprinted [on it];
(2) separately state [a statement of] the amount of
the [diesel fuel] tax paid and [separate from] the selling price of
the fuel, or state [a statement] that the [diesel fuel] tax is
included in the selling price; and
(3) contain [a statement that no diesel fuel tax was
collected by the seller if the invoice is to be used by the seller to
support a refund claim; and
[(4)] spaces for providing [the following]:
(A) the name of the purchaser;
(B) the date of delivery of the fuel;
(C) the number of gallons delivered;
(D) the odometer or hubmeter reading;
(E) the state highway license or unit number;
(F) the type of vehicle or equipment, such as a
motorboat, railway engine, highway vehicle, off-highway vehicle,
[or] refrigeration unit, or stationary engine into which the fuel
is delivered; and
(G) the signature of the recipient.
(d) [(e)] If the delivery of tax-paid diesel fuel is made
through an automated method in which [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.
(e) The seller shall complete the invoice in duplicate and
shall deliver the original invoice to the purchaser not later than
the 30th day after the date on which the fuel was sold. The seller
shall retain the duplicate.
(f) If the fuel delivery into the fuel supply tanks of a
motor vehicle is through a method in which [where] there is no
seller or agent present, [then] the purchaser or recipient must
prepare the required invoice at the time of delivery.
Sec. 153.2201. TAX PAYMENTS BY AN INTERSTATE TRUCKER;
ALLOWANCE. (a) An interstate trucker who imports diesel fuel into
Texas in the fuel supply tanks of a motor vehicle operated for
commercial purposes and described by Section 153.001(12) shall
report and pay the tax, as required by Section 153.221, at the
imposed rate on diesel fuel that is imported and used on Texas
highways. The number of gallons of diesel fuel used on Texas
highways shall be computed by dividing the total miles traveled in
all states by the total number of gallons of diesel fuel delivered
into the fuel supply tanks of the motor vehicle in all states. The
mileage factor obtained shall be divided into the total Texas miles
traveled in order to determine the number of gallons of diesel fuel
used in Texas.
(b) An interstate trucker shall remit all taxes due by the
person based on the applicable tax rate for each gallon of diesel
fuel consumed within the state at the time of the filing of the
person's quarterly reports.
(c) A permitted interstate trucker is entitled to deduct
one-half of one percent of the taxable gallons of diesel fuel on
timely payment of the taxes to the state for the expense of
recordkeeping, reporting, and remitting the tax.
Sec. 153.221. REPORTS AND PAYMENTS. (a) On or before the
25th day of each month, a terminal supplier, importer, or blender [a
dealer required to collect the tax under Section 153.206(b), or a
dyed diesel fuel bonded user, agricultural bonded user, or other
user required to pay the tax under Section 153.206(c)] shall file a
report of diesel fuel transactions [or of diesel fuel delivered by a
dyed diesel fuel bonded user, agricultural bonded user, or other
user into the fuel tank of a motor vehicle owned or operated by the
user] and such supplements as the comptroller may require, and
shall remit the amount of tax required to be collected or to be paid
during the preceding calendar month. In addition to any other
information required by the comptroller, the report shall contain,
for each blending, removal, importation, or sale of fuel that
occurred during the preceding calendar month:
(1) the name of the exempt user or the permit number,
end user number, or agricultural exemption number of the person to
whom the fuel was removed or sold or for whom it was blended or
imported;
(2) the number of gallons blended, removed, imported,
or sold;
(3) whether the diesel fuel was dyed or undyed;
(4) the load number of the fuel blended, removed,
imported, or sold; and
(5) for imported fuel, the import verification number
and diversion number, if any.
(b) On or before the 25th day of each month, a distributor or
exporter shall file a report of diesel fuel transactions that
occurred during the preceding calendar month and any supplements to
that report the comptroller may require. In addition to any other
information required by the comptroller, the report shall contain,
for each sale or export that occurred during the preceding calendar
month:
(1) the name of the exempt user or the permit number,
end user number, or agricultural exemption number of the person to
whom the fuel was sold, or the destination to which the fuel was
exported;
(2) the number of gallons of diesel fuel sold or
exported;
(3) whether the diesel fuel was dyed or undyed;
(4) the load number of the diesel fuel sold or
exported; and
(5) for exported fuel, the diversion number, if any [A
report must be filed on a form or in a manner provided by the
comptroller and contain information required by the comptroller,
showing complete and detailed information of diesel fuel
transactions or use during the preceding month. A supplier
required to file a report under this section who has not sold, used,
or distributed any diesel fuel during the reporting period shall
file with the comptroller the report setting forth the facts or
information. The failure of a supplier, dealer, or dyed diesel fuel
bonded user, agricultural bonded user, or other user to obtain
forms or software from the comptroller is no excuse for the failure
to file a report. The report must be executed by the supplier,
dealer, or user, or his representative, and is subject to the
penalties provided in this chapter].
(c) [(b)] On or before the 25th day of the month following
the end of each calendar quarter, [a dyed diesel fuel bonded user,
an agricultural bonded user, or] an interstate trucker shall file a
report and remit the amount of tax due for the preceding calendar
quarter[. A report must be executed and filed with the comptroller
and contain complete and detailed information on diesel fuel
transactions during the preceding calendar quarter and other
information required by the comptroller on forms or in a manner
provided for that purpose. A dyed diesel fuel bonded user, an
agricultural bonded user, or an interstate trucker required to file
a report under this section who has not sold, used, or distributed
any diesel fuel during the reporting period shall file with the
comptroller the report setting forth the facts or information. The
failure of a dyed diesel fuel bonded user, an agricultural bonded
user, or an interstate trucker to obtain forms or software from the
comptroller is no excuse for the failure to file a report containing
all the information required to be reported].
(d) On or before the 25th day of each month, a terminal
operator shall file a report of diesel fuel received and stored
during the preceding calendar month and any supplements to that
report the comptroller may require. In addition to any other
information required by the comptroller, the report shall contain:
(1) the name, address, and permit number of the person
receiving or storing the diesel fuel;
(2) the name of the vessel or other method of transport
by which the diesel fuel is transported to the terminal; and
(3) the number of gallons and type of diesel fuel being
stored.
(e) On or before the 25th day of the month following the end
of each calendar quarter, a person required by Section 153.206(e)
or (f) to pay the tax imposed by this subchapter and who is not a
terminal operator, terminal supplier, importer, blender,
distributor, exporter, or interstate trucker shall file a report
and remit the amount of tax due for the preceding calendar quarter.
(f) [(c)] No report is required to be filed by:
(1) an aviation fuel dealer;
(2) a trip permit user;
(3) a dealer [diesel tax prepaid user];
(4) a kerosene dealer [person issuing signed
statements]; [or]
(5) an agricultural bonded user;
(6) a dyed diesel fuel bonded user;
(7) a person who purchased fuel using a signed
statement; or
(8) a commercial passenger carrier [a diesel fuel
jobber].
(g) A person required to file a report under this section
that has not removed, imported, exported, blended, sold, or used
any diesel fuel during the reporting period shall file with the
comptroller a report stating that diesel fuel was not removed,
imported, exported, blended, sold, or used during the reporting
period.
(h) A report required by this section must be signed by the
person required to file the report or the person's representative.
(i) A report required by this section must be filed on a form
or using electronic filing software prescribed by the comptroller.
The failure to obtain a form or software from the comptroller does
not excuse a failure to file a report.
(j) The comptroller may allow a person who holds a permit
containing multiple designations under Section 153.207(d) to file a
single report containing all of the information required for each
of the designations.
Sec. 153.222. REFUNDS OF TAXES PAID ON EXEMPTED [EXCEPTED]
USES OF DIESEL FUEL. (a) The following persons may file a refund
with the comptroller for taxes paid under this subchapter:
(1) a distributor [A dealer or diesel fuel jobber] who
has paid tax on undyed diesel fuel that has been [used or] sold to an
exempt user in a tax-free transaction under Section 153.2062(b);
(2) a kerosene [for use by the] dealer who has paid tax
on undyed [or] diesel fuel that has been held for sale in tax-free
transactions under Section 153.2063;
(3) an aviation fuel dealer [jobber for any purpose
other than propelling a motor vehicle on the public highways of this
state or that has been sold to the United States or a public school
district in this state for the exclusive use of the purchaser, or to
a commercial transportation company for exclusive use in providing
public school transportation services to a school district under
Section 34.008, Education Code, without adding the amount of the
tax to his selling price, and a user] who has paid tax on undyed
[any] diesel fuel that will be held for sale in tax-free
transactions under Section 153.2064(b);
(4) an exempt user other than a diesel exempt user who
[has been used by him for a purpose other than propelling a motor
vehicle on the public highways, is a public school district and has
paid the tax on diesel fuel purchased for its exclusive use, is a
commercial transportation company and] has paid [the] tax on diesel
fuel that will be used by that person for a purpose exempt under
Section 153.203(b); or
(5) a diesel exempt user or any other person that [used
by the company exclusively to provide public school transportation
services to a school district under Section 34.008, Education Code,
or is a person who] has paid tax on diesel fuel that will be used by
that person for any purpose other than propelling a motor vehicle on
the public highways of this state [used in a commercial motor
vehicle as provided by Section 153.203(10) may file a claim for a
refund of taxes paid, less the deduction allowed vendors].
(b) A person may file a refund claim for tax paid on the
diesel fuel used in motor vehicles that are operated exclusively
off the public highways except for incidental travel on the public
highways as determined by the comptroller, but not for tax paid on
that portion of diesel fuel used in the incidental travel.
(c) A permitted interstate trucker is entitled to a credit
equivalent to the tax rate for each gallon paid on all diesel fuel
on which the diesel fuel tax has been paid and later consumed in
motor vehicles outside the state. If the amount of credit to which
the interstate trucker is entitled for any calendar quarter exceeds
the amount of tax for which the interstate trucker is liable for
diesel fuel consumed in the motor vehicles during the reporting
period, the excess shall be allowed as a credit or refund on a
timely filed quarterly report against the tax for which the
interstate trucker would be otherwise liable for any of the three
succeeding quarters. Evidence of the mileage traveled and
gallonage consumed and the payment of the diesel fuel tax, on a form
that may be required by or is satisfactory to the comptroller, shall
be furnished by the interstate trucker claiming the credit or tax
refund.
(d) If the quantity of diesel fuel used in Texas by
auxiliary power units or power take-off equipment on any motor
vehicle 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 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. If no
separate metering device or other approved measuring method is
provided, the following credit or refund procedures are authorized.
A distributor [permitted supplier], a dyed diesel fuel bonded user,
or an agricultural bonded user who operates diesel-powered motor
vehicles equipped with a power take-off or a diesel-powered
auxiliary power unit mounted on the motor vehicle and using the fuel
supply tank of the motor vehicle may be allowed a deduction from the
taxable gallons used in this state in each motor vehicle so
equipped. The comptroller shall determine the percentage of the
deduction. A user who is required to pay the tax on diesel fuel used
in motor vehicles so equipped may file a claim for a refund not to
exceed the percentage allowed by the comptroller of the total motor
[taxable] fuel used in this state in each motor vehicle so equipped.
(e) A person who exports or loses by fire, theft, or
accident 100 or more gallons of diesel fuel on which the tax has
been paid, or who sells diesel fuel in any quantity to the United
States for its exclusive use on which the tax has been paid, may
file a claim for a refund of the net tax paid to the state as the
comptroller may direct. The comptroller may bar a person who has
made a false refund claim from purchasing fuel for export under
Section 153.2061(f) without paying the tax imposed by this
subchapter.
(f) The right to receive a refund under this section is not
assignable, except that a person residing or maintaining a place of
business outside the state who purchases 100 or more gallons of
diesel fuel and promptly exports the entire quantity may assign the
person's right to claim a refund to the exporter from whom the
diesel fuel was purchased. If an exporter secures an assignment and
the proof of export required by the comptroller, the exporter may
file a refund claim with the comptroller.
Sec. 153.2225. CREDIT OR REFUND [CREDITS] FOR BAD DEBTS.
(a) A terminal [permitted] supplier may take a credit on the
monthly report to be filed with the comptroller, or a distributor
may file a refund claim with the comptroller, if:
(1) the terminal supplier or distributor has paid the
taxes imposed by this subchapter on diesel fuel sold on account;
(2) the terminal supplier or distributor determines
that the account is uncollectable and worthless; [and]
(3) at the time of the transaction, the person to whom
the terminal supplier or distributor sold the diesel fuel held a
permit, end user number, or agricultural exemption number issued by
the comptroller, or was an exempt user; and
(4) the account is written off as a bad debt on the
accounting books of the terminal supplier or distributor.
(b) The return on which the credit is taken or the refund
claim 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 credit that may be taken under
Subsection (a) [of this section] may equal but may not exceed the
amount of taxes paid on the diesel fuel to which the written-off
account applies.
(c) If, after a credit is taken or refund is received under
Subsection (a) [of this section], 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) [of this section], 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 [of this
code] beginning on the day that the credit was taken or the refund
was issued.
(d) This section does not apply to a sale of diesel fuel 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.
(e) A credit or refund under this section must be taken or
claimed at the time the account is written off as a bad debt, but may
only be taken or claimed before the expiration of the applicable
limitation period as provided by Chapter 111 [of this code].
(f) The comptroller may take action against the person whose
account has been written off for collection of the tax owed and any
applicable penalties and interest.
SECTION 29. Section 153.223(a), Tax Code, is amended to
read as follows:
(a) A refund claim must be filed with the comptroller on
forms provided by the comptroller and show the date of filing, the
period covered in the claim, the number of gallons of diesel fuel
subject to refund, and other information required by the
comptroller. A claim must be supported by one or more original
invoices issued to or by the claimant, or such other information as
the comptroller deems necessary. [A permitted supplier may not
file a claim for a refund of taxes paid by a purchaser of undyed
diesel fuel.]
SECTION 30. Section 153.224(a), Tax Code, is amended to
read as follows:
(a) A [Except as provided by this section, a] claim for [a]
refund, other than a bad debt refund under Section 153.2225, must be
filed with the comptroller within one year after the first day of
the calendar month following the sale, purchase, use, [delivery,]
export, or loss by fire, theft, or accident of diesel fuel,
whichever period expires latest.
SECTION 31. Sections 153.225 and 153.226, Tax Code, are
amended to read as follows:
Sec. 153.225. DIESEL FUEL TAX REFUND PAYMENTS. After
examination and approval of the refund claim, the comptroller
before issuing a refund warrant shall deduct from the amount of the
refund payment the one-fourth of one [2] percent deducted
originally by the terminal supplier and the one-half of one percent
deducted originally by the distributor on the removal [sale or
delivery] of the diesel fuel.
Sec. 153.226. NOTICE REGARDING DYED DIESEL FUEL. A notice
stating "DYED DIESEL FUEL, NONTAXABLE USE ONLY, PENALTY FOR TAXABLE
USE" must be:
(1) provided by a terminal [permitted] 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.
SECTION 32. Section 153.401(a), Tax Code, is amended to
read as follows:
(a) If any person, including a person having a permit as a
terminal operator, terminal supplier, importer, exporter, blender,
distributor, [supplier, dyed diesel fuel bonded user, agricultural
bonded user, dealer,] or interstate trucker, 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.
SECTION 33. Sections 153.402(a), (c), (d), and (e), Tax
Code, are amended to read as follows:
(a) A person forfeits to the state a civil penalty of not
less than $25 nor 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 or a trip permit when the person is
required to hold one of those 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 permit;
(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 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 distributor [supplier] a signed
statement for purchasing dyed diesel fuel tax free and then uses the
dyed [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.
(c) A person receiving motor fuel who accepts a shipping
document that does not conform with the requirements of Section
153.018(a) or (b) 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 153.018(a) or (b) 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 153.018(j) [153.018(i)] is
liable to this state for a civil penalty of $100 for each day the
notice is not posted as required by Section 153.018(j)
[153.018(i)].
SECTION 34. Section 153.403, Tax Code, is amended to read as
follows:
Sec. 153.403. CRIMINAL OFFENSES. Except as provided by
Section 153.404, 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 permit, but operates a motor vehicle in this
state without a valid trip permit or interstate trucker's permit;
(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) [as a diesel tax prepaid user fails to prepay the
tax on every diesel-powered motor vehicle owned or operated by him;
[(8)] uses dyed diesel fuel[, on which a tax is required
to be paid,] for the operation of a motor vehicle on a public
highway in this state, unless:
(A) the use is lawful under the Internal Revenue
Code and implementing regulations and is not otherwise prohibited
by this chapter; or
(B) the person is a diesel exempt user and the use
is incidental highway travel, as defined by the comptroller;
(8) [(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;
(9) [(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
permit;
(10) [(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;
(11) [(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;
(12) [(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 terminal operator, terminal supplier,
importer, exporter, blender, distributor, [supplier,] dyed diesel
fuel bonded user, agricultural bonded user, dealer, interstate
trucker, commercial passenger carrier, kerosene dealer, aviation
fuel dealer, [jobber,] common or contract carrier, or any person
required to hold a permit under this chapter;
(13) [(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,
stored, sold, delivered, or used;
(14) [(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 [Natural Resource Conservation Commission], 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, stored, sold, delivered, or
used;
(15) [(16)] is a terminal supplier, importer,
exporter, blender, distributor, [dyed diesel fuel bonded user,
agricultural bonded user,] interstate trucker, or a person required
to file a report by Section 153.118(e) or 153.221(e) [supplier] 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;
(16) [(17)] is an importer who does not obtain an
import verification number when required by this chapter;
(17) [(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;
(18) [(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;
(19) [(20)] refuses, while transporting motor fuel,
to stop the motor vehicle he is operating when called on to do so by
a person authorized to stop the motor vehicle;
(20) [(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;
(21) [(22)] mutilates, destroys, or secretes a book or
record required by this chapter to be kept by a terminal operator,
terminal supplier, importer, exporter, blender, commercial
passenger carrier, kerosene dealer, signed statement user, [a]
distributor, [supplier,] dyed diesel fuel bonded user,
agricultural bonded user, dealer, interstate trucker, aviation
fuel dealer, [jobber,] or person required to hold a permit under
this chapter;
(22) [(23)] is a terminal operator, terminal
supplier, importer, exporter, blender, commercial passenger
carrier, kerosene dealer, signed statement user, distributor,
[supplier,] dyed diesel fuel bonded user, agricultural bonded user,
dealer, interstate trucker, aviation fuel dealer, [jobber,] or
other person required to hold a permit 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;
(23) [(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;
(24) [(25)] engages in a motor fuel transaction or
business activity in this state for which [that requires that the
person have] a permit is required by [under] this chapter without
then and there holding the required permit;
(25) [(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;
(26) [(27)] forges, falsifies, or alters an invoice
prescribed by law;
(27) [(28)] makes any statement, knowing said
statement to be false, in a claim for a tax refund filed with the
comptroller;
(28) [(29)] furnishes to a distributor [supplier] a
signed statement for purchasing dyed diesel fuel tax free and then
uses the dyed [tax-free] diesel fuel to operate a diesel-powered
motor vehicle on a public highway;
(29) [(30)] holds an aviation fuel dealer's permit and
makes a taxable sale or use of any gasoline or diesel fuel;
(30) [(31) fails to remit any tax funds collected by a
distributor, supplier, dyed diesel fuel bonded user, agricultural
bonded user, dealer, interstate trucker, jobber, or any other
person required to hold a permit under this chapter;
[(32) makes a sale of diesel fuel tax free into a
storage facility of a person who:
[(A) is not permitted as a supplier, as an
aviation fuel dealer, as a dyed diesel fuel bonded user, as an
agricultural bonded user, or as a diesel tax prepaid user of diesel
fuel; or
[(B) does not furnish to the permitted supplier a
signed statement prescribed in Section 153.205;
[(33)] makes a sale of gasoline tax free to any person
who is not an exempt user [permitted as either a distributor or an
aviation fuel dealer];
(31) [(34)] is a dealer who purchases any motor fuel
tax free [when not authorized to make a tax-free purchase under this
chapter];
(32) [(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;
(33) [(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;
(34) [(37)] imports, sells, uses, 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 the holder of a distributor, supplier, liquefied gas dealer,
interstate trucker, diesel tax prepaid user, dyed diesel fuel
bonded user, or agricultural bonded user permit];
(35) [(38)] blends products together to produce a
blended fuel that is offered for sale, sold, or used that expands
the volume of the original product to evade paying applicable motor
fuel taxes; [or]
(36) [(39)] evades or attempts to evade in any manner
a tax imposed on motor fuel by this chapter;
(37) alters or attempts to alter the strength or
composition of a dye or marker in dyed diesel fuel;
(38) sells motor fuel and does not collect the tax
imposed by this chapter from the purchaser, unless the sale
satisfies the requirements of Section 153.1051, 153.1052,
153.1053, 153.1054, 153.2061, 153.2062, 153.2063, 153.2064, or
153.2065; or
(39) purchases motor fuel and does not pay the tax
imposed by this chapter, unless the seller was not required to
collect the tax under Section 153.1051, 153.1052, 153.1053,
153.1054, 153.2061, 153.2062, 153.2063, 153.2064, or 153.2065.
SECTION 35. Section 153.404(b), Tax Code, is amended to
read as follows:
(b) Each day that a refusal prohibited under Section
153.403(12), (13), or (14) [153.403(13), (14), or (15)] continues
is a separate offense.
SECTION 36. Section 153.405, Tax Code, is amended to read as
follows:
Sec. 153.405. CRIMINAL PENALTIES. (a) An offense under
Section 153.403(1), (2), (3), (4), (5), (6), or (7) [, or (8)] is a
Class C misdemeanor.
(b) An offense under Section 153.403(8), (9) [153.403(9)],
(10), (11), (12), (13), (14), (15), (16), or (17) [, or (18)] is a
Class B misdemeanor.
(c) An offense under Section 153.403(18), (19), or (20)
[153.403(19), (20), or (21)] is a Class A misdemeanor.
(d) An offense under Section 153.403(21), (22)
[153.403(22)], (23), (24), (25), (26), (27), or (28)[, or (29)] is a
felony of the third degree.
(e) An offense under Section 153.403(29), (30)
[153.403(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 153.403(21) through (28) [153.403(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.
SECTION 37. Section 153.409, Tax Code, is amended to read as
follows:
Sec. 153.409. ISSUANCE OF BAD CHECK TO TERMINAL [PERMITTED
DISTRIBUTOR OR PERMITTED] 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 terminal
[permitted distributor or permitted] supplier; and
(3) the payment is for an obligation or debt that
includes a tax under this chapter to be collected by the terminal
[permitted distributor or permitted] 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 terminal [permitted distributor or
permitted] supplier may be held liable for a penalty equal to the
total amount of tax not paid to the terminal [permitted distributor
or permitted] supplier.
SECTION 38. The following provisions of the Tax Code are
repealed:
(1) Sections 153.001(2), (6), (7), (8), (11), (13),
(15), (21), and (25);
(2) Section 153.1071;
(3) Section 153.110;
(4) Section 153.111;
(5) Section 153.112(e);
(6) Section 153.120(b);
(7) Sections 153.121(c) and (d);
(8) Section 153.2081;
(9) Section 153.210;
(10) Section 153.213;
(11) Section 153.214;
(12) Section 153.2141;
(13) Sections 153.215(e) and (f);
(14) Section 153.223(b);
(15) Sections 153.224(c) and (d); and
(16) Sections 153.404(c) and (d).
SECTION 39. (a) This Act takes effect September 1, 2003.
(b) On or before February 25, 2004, a person that possesses
on the effective date of this Act gasoline or undyed diesel fuel on
which the taxes imposed by Chapter 153, Tax Code, have not been paid
shall report and pay to the comptroller the tax imposed by that
chapter on the volume of tax-free gasoline or undyed diesel fuel in
the person's possession unless:
(1) the person is an exempt user;
(2) the person is a diesel exempt user, the person
reports to the comptroller the volume of tax-free undyed diesel
fuel in the person's possession, and the person attests to the
comptroller that the undyed diesel fuel will be used exclusively
for nonhighway purposes;
(3) the person is a kerosene dealer, the person
reports to the comptroller the volume of tax-free undyed kerosene
in the person's possession, and the person attests to the
comptroller that the undyed kerosene will be sold exclusively for
nonhighway purposes; or
(4) the person is an aviation fuel dealer, the person
reports to the comptroller the volume of tax-free gasoline and
undyed diesel fuel in the person's possession, and the person
attests to the comptroller that the gasoline and undyed diesel fuel
will be sold exclusively for nonhighway purposes.