WSR 09-01-075

PROPOSED RULES

DEPARTMENT OF LICENSING


(Vehicle Services Division)

(Prorate and Fuel Tax Administration)

[ Filed December 15, 2008, 11:15 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-16-038.

Title of Rule and Other Identifying Information: Chapter 308-78 WAC, Aircraft fuel.

Hearing Location(s): Department of Licensing, Prorate and Fuel Tax, 2424 Bristol Court, Room 346, Olympia, WA 98507, on January 28, 2009, at 1:30 p.m.

Date of Intended Adoption: February 24, 2009.

Submit Written Comments to: Art Farley, P.O. Box 9036, Olympia, WA 98507-9036, e-mail DOLPRFTRuleComments@dol.wa.gov, fax (360) 664-8468, by January 28, 2009.

Assistance for Persons with Disabilities: Contact K. Partain by January 14, 2009, TTY (360) 664-8885, or (360) 664-1816.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Changes to this rule are in accordance with Executive Order 97-02 Regulatory Improvement and 05-03 on plain talk. The rule has been changed so it is easier to understand as well as removed any redundancy or obsolete language.

Reasons Supporting Proposal: Executive Order 05-03, Executive Order 97-02.

Statutory Authority for Adoption: RCW 82.36.435.

Statute Being Implemented: Chapter 82.36, 82.38, or 82.48 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of licensing, vehicle services division, prorate and fuel tax administration, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Paul Johnson, FT Manager, 2424 Bristol Court, Olympia, (360) 664-1844.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Members of the impacted industries and department of licensing staff reviewed the proposed amendments and comments did not relate to an economic impact.

A cost-benefit analysis is not required under RCW 34.05.328. Members of the impacted industries and department of licensing staff reviewed the proposed amendments and comments did not relate to an economic impact.

December 9, 2008

Karla Laughlin

Administrator

Prorate and Fuel Tax

December 11, 2009

Mykel D. Gable

Assistant Director

Vehicle Services

OTS-2060.1


AMENDATORY SECTION(Amending WSR 04-06-001, filed 2/18/04, effective 3/20/04)

WAC 308-78-010   Definitions.   (1) (("Aircraft fuel" includes any combustible gas or liquid, which is normally defined as motor vehicle fuel under chapter 82.36 RCW and chapter 308-72 WAC or a special fuel under chapter 82.38 RCW and chapter 308-78 WAC when used to propel an aircraft.

(2))) "User" means any person other than a distributor who is certified to acquire aircraft fuel without payment of the aircraft fuel tax at time of acquisition.

(((3) "Local service commuter" means an air taxi operator who operates at least five round trips per week between two or more points; publishes flight schedules which specify the times, days of the week, and points between which it operates; and whose aircraft has a maximum capacity of sixty passengers or eighteen thousand pounds of useful load.

(4))) (2) "Private, nonstate funded airfield" means an airport not eligible to receive state funding under chapter 47.68 RCW.

(((5) "Department" means the department of licensing.

(6))) (3) "Emergency medical air transport entities" means entities that own or lease, and operate aircraft used solely for air ambulance services.

[Statutory Authority: RCW 82.42.040. 04-06-001, 308-78-010, filed 2/18/04, effective 3/20/04. Statutory Authority: RCW 82.42.100. 01-08-083, 308-78-010, filed 4/4/01, effective 5/5/01. Statutory Authority: RCW 82.42.040. 90-13-039 (Order PFT 90-05), 308-78-010, filed 6/14/90, effective 7/15/90. Statutory Authority: RCW 82.42.030. 86-02-057 (Order TL-RG-23), 308-78-010, filed 12/31/85. Statutory Authority: RCW 82.42.040. 85-04-027 (Order PFT 85-001), 308-78-010, filed 1/31/85; 82-20-093 (Order MV 696), 308-78-010, filed 10/6/82; Order 69-10-2, 308-78-010, filed 10/29/69; Rules (part), filed 9/12/67; Emergency Rules (part), filed 7/21/67.]


AMENDATORY SECTION(Amending WSR 01-08-083, filed 4/4/01, effective 5/5/01)

WAC 308-78-020   Bond requirements and collection.   (1) Are bonds required for aircraft fuel distributors? Yes, every aircraft fuel distributor must be bonded as provided in chapter 82.36 RCW and((/or)) chapter 82.42 RCW.

(2) Can the department collect on bonds for unpaid aircraft fuel taxes? Yes, the department may execute bonds on file under the provisions of chapters 82.36 and 82.42 RCW for unpaid aircraft fuel taxes.

[Statutory Authority: RCW 82.42.100. 01-08-083, 308-78-020, filed 4/4/01, effective 5/5/01. Statutory Authority: RCW 88.42.040. 99-19-097, 308-78-020, filed 9/20/99, effective 10/21/99; 82-20-093 (Order MV 696), 308-78-020, filed 10/6/82; Order 69-10-2, 308-78-020, filed 10/29/69; Rule A, filed 9/12/67; Emergency Rule A, filed 7/21/67.]


AMENDATORY SECTION(Amending WSR 01-08-083, filed 4/4/01, effective 5/5/01)

WAC 308-78-030   Required reports.   (1) What reports are required by the department for aircraft fuel tax and when are they due? Every licensed distributor of aircraft fuel ((shall)) will submit signed tax returns and schedules to the department, on or before the 25th day of each month, or as required by the department. Forms ((shall)) will be furnished or approved by the department.

(2) What if the payment due date falls on a Saturday, Sunday, or state legal holiday? Payment is due by the state business day immediately preceding the due date. ((())For example, if the payment due date falls on Saturday, you must transfer the funds by Friday.(()))

(3) Is a report due if I have no activity for the month? Yes, a report ((shall)) must be filed with the department for each calendar month ((even when no aircraft fuel was sold or used)).

(4) Can tax return information be made available to other government agencies? Yes, the department routinely furnishes copies of schedules to government agencies or foreign jurisdictions.

[Statutory Authority: RCW 82.42.100. 01-08-083, 308-78-030, filed 4/4/01, effective 5/5/01. Statutory Authority: RCW 88.42.040. 99-19-097, 308-78-030, filed 9/20/99, effective 10/21/99; 90-13-039 (Order PFT 90-05), 308-78-030, filed 6/14/90, effective 7/15/90; 82-20-093 (Order MV 696), 308-78-030, filed 10/6/82; Order 69-10-2, 308-78-030, filed 10/29/69; Rule B, filed 9/12/67; Emergency Rule B, filed 7/21/67.]


AMENDATORY SECTION(Amending WSR 01-08-083, filed 4/4/01, effective 5/5/01)

WAC 308-78-035   Minimum ((tax)) payment((/)) or refund.   (1) What is the minimum ((tax)) payment or refund for licensed accounts? ((Each tax return that declares a tax liability of ten dollars or less need not make remittance; conversely, a refund of ten dollars or less will not be allowed. A computation error on the tax return which results in an additional tax liability in the amount of ten dollars or less will be accepted without further collection action.)) Ten dollars or less will not be owed or refunded.

(2) What is the minimum refund for unlicensed refund claims? Claims for less than twenty dollars will not be refunded.

[Statutory Authority: RCW 82.42.100. 01-08-083, 308-78-035, filed 4/4/01, effective 5/5/01.]


AMENDATORY SECTION(Amending WSR 01-08-083, filed 4/4/01, effective 5/5/01)

WAC 308-78-040   Tax exempt sales by licensed distributors.   When may a licensed distributor sell aircraft fuel without collecting the aircraft fuel tax? ((A licensed distributor may sell aircraft fuel without collecting the aircraft fuel tax,)) When delivery is made by the distributor to any of the following:

(1) A destination outside the state;

(2) United States or foreign government agencies;

(3) Directly into the aircraft fuel tanks of equipment operated by air carriers, supplemental air carriers, and foreign flag carriers operating under ((part 121 of)) the Federal Aviation Regulations, and local service commuters;

(4) Another licensed distributor;

(5) To a purchaser who delivers the fuel for export under RCW 82.42.030 or 82.42.070; or

(6) Into the bulk storage tank of a certified user.

[Statutory Authority: RCW 82.42.100. 01-08-083, 308-78-040, filed 4/4/01, effective 5/5/01. Statutory Authority: RCW 88.42.040. 99-19-097, 308-78-040, filed 9/20/99, effective 10/21/99; 90-13-039 (Order PFT 90-05), 308-78-040, filed 6/14/90, effective 7/15/90; 85-04-027 (Order PFT 85-001), 308-78-040, filed 1/31/85; 82-20-093 (Order MV 696), 308-78-040, filed 10/6/82; Order 69-10-2, 308-78-040, filed 10/29/69; Rule C, filed 9/12/67; Emergency Rule C, filed 7/21/67.]


AMENDATORY SECTION(Amending WSR 04-06-001, filed 2/18/04, effective 3/20/04)

WAC 308-78-045   Tax exempt use and circumstances.   (1) What are the conditions under which a refund of aircraft fuel tax can be claimed? ((Refund of the aircraft fuel tax paid may be claimed for the following uses or circumstances:

(1))) (a) Operation of aircraft by air carriers, supplemental air carriers, and foreign flag carriers, operating under ((part 121 of)) the Federal Aviation Administration Regulations, and local service commuters.

(((2))) (b) Testing and experimental purposes in the manufacture or remanufacture of aircraft and for flight operations or experimental testing following manufacture, repair prior to delivery to a customer, or experimental testing of another aircraft.

(((3))) (c) Aircraft crew training in Washington state for certified air carriers.

(((4))) (d) When applying pesticides, herbicides, or other agricultural chemicals under conditions defined in RCW 82.42.020.

(((5))) (e) Exportation of fuel from this state for use outside this state under the same conditions as provided for the refund of motor vehicle fuel in chapter 82.36 RCW and special fuel in chapter 82.38 RCW.

(((6))) (f) Use of fuel in nonhighway equipment, other than aircraft, as provided for the refund of motor vehicle fuel in chapter 82.36 RCW and special fuel in chapter 82.38 RCW.

(((7))) (g) Sales to the United States or foreign government agencies by a distributor who has paid the aircraft fuel tax. The distributor ((shall)) will file an exemption certificate provided by the department. This certificate ((shall)) will contain an assignment to the distributor of the purchaser's right to a refund.

(((8))) (h) Users of aircraft fuel placed into helicopters or the wing tanks of aircraft that are used solely for air ambulance services are eligible for a refund of the aircraft fuel tax. ((For purposes of the tax exemption,)) Aircraft fuel ((placed into the wing tanks of aircraft or placed into helicopters and)) consumed during training activities directly related to providing air ambulance services is considered to be exempt from the aircraft fuel tax.

(2) What records must be kept when claiming an exemption of aircraft fuel tax? Each person must keep records of each flight or series of flights for which tax exempt use is claimed. Records will include:

(a) Flight or block time of each flight or series of flights;

(b) Type of aircraft;

(c) Purpose of each flight or series of flights;

(d) Dates; and

(e) Gallons consumed for each flight or series of flights.

[Statutory Authority: RCW 82.42.040. 04-06-001, 308-78-045, filed 2/18/04, effective 3/20/04. Statutory Authority: RCW 82.42.100. 01-08-083, 308-78-045, filed 4/4/01, effective 5/5/01. Statutory Authority: RCW 88.42.040. 99-19-097, 308-78-045, filed 9/20/99, effective 10/21/99; 85-04-027 (Order PFT 85-001), 308-78-045, filed 1/31/85; 82-20-093 (Order MV 696), 308-78-045, filed 10/6/82.]


AMENDATORY SECTION(Amending WSR 01-08-083, filed 4/4/01, effective 5/5/01)

WAC 308-78-046   Tax exempt losses.   (1) What is ((considered a tax exempt)) acceptable proof of loss for a credit or refund of fuel tax paid? ((You may claim an exemption if fuel is destroyed through fire, lightning, flood, wind storm, explosion, accident, or other casualty.

(2) May I claim an exemption for losses due to leakage? Yes, if the verified leakage is five hundred gallons or more.

(3) May I claim an exemption for losses of aircraft fuel due to evaporation, shrinkage, or unknown causes? No, aircraft fuel losses due to evaporation, shrinkage, or unknown causes are not permitted.

(4) What is acceptable proof of loss? Acceptable proof of loss will consist of the following:

(a) An affidavit by a person having direct knowledge of the circumstances of the loss, explaining the circumstances surrounding the loss, quantity of fuel lost, fuel salvaged, disposition of salvaged fuel, and procedures used in determining the quantity of fuel lost;

(b) A signed statement by a federal or jurisdictional official who has authority to investigate fuel losses, or a witness to the loss;

(c) A bill of lading or shipping document;

(d) A statement by the licensee establishing ownership of the fuel at the time of loss.

(5))) (a) A notarized affidavit by a person having actual knowledge of the circumstances of the loss, explaining the origin and destination of the shipment, the circumstances surrounding the quantity of fuel lost, fuel salvaged, disposition of the salvaged fuel, and procedures used in the determination of the quantity of fuel lost; or

(b) A signed statement by a federal, state, local or provincial official who has authority to investigate fuel loss; and

(c) A bill of lading or other shipping documents; and

(d) A statement by the licensee establishing ownership of the fuel at time of loss.

(2) Are deductions for losses from bulk storage allowed? Yes, aircraft fuel that has been proven lost or destroyed prior to distribution from a licensee's bulk storage facility outside of the bulk transfer terminal system may be considered a tax exempt loss.

(3) How long ((must)) do I retain my evidence substantiating ((the)) my loss? ((Documentary evidence substantiating losses shall be retained by the licencee for)) Five years from date of claim.

(((6) Am I liable for fuel taxes if one of my employees or agents causes a loss of fuel? Yes, charges for losses made by employees or agents who fail to satisfactorily account for fuel shall be invoiced inclusive of the fuel tax. Other losses shall be substantiated by proof acceptable to the department.)) (4) May I claim a deduction from stolen fuel? No.

[Statutory Authority: RCW 82.42.100. 01-08-083, 308-78-046, filed 4/4/01, effective 5/5/01.]


AMENDATORY SECTION(Amending WSR 01-08-083, filed 4/4/01, effective 5/5/01)

WAC 308-78-070   Records.   (1) ((What records must a distributor, certified user, or consumer of aircraft fuel maintain? The following records must be maintained:

(a) Physical inventories of bulk storage facilities and mobile storage facilities taken at the close of each calendar month;

(b) A record of fuel receipts together with invoices, bills of lading, transfer documents, and other documents relative to the acquisition of fuel;

(c) A record of fuel disbursements supported by sales invoices and other documents relative to the disbursements of fuel;

(d) A withdrawal record covering their own total usage during the month. The withdrawal record shall contain the date of withdrawal, the location of the storage facility from which the fuel was withdrawn, the type or grade of fuel, and the number of gallons withdrawn;

(e) Each person claiming an exemption from the aircraft fuel tax shall keep records of each flight or series of flights for which tax exempt use is claimed. Such records shall include:

(i) Flight or block time of each flight or series of flights;

(ii) Type of aircraft;

(iii) Purpose of each flight or series of flights;

(iv) Dates;

(v) Gallons consumed for each flight or series of flights.)) What aircraft fuel records must be kept? Every person licensed or required to be licensed must maintain a complete monthly stock summary of the gallons of aircraft fuel reflecting inventories, receipts, sales, use, other distribution, and loss or gain. The stock summary must be supported by:

(a) Physical inventories of bulk storage plants taken at the close of each calendar month.

(b) Meter readings taken at the close of each calendar month for pumps through which fuel is dispensed.

(c) A record of fuel receipts, invoices, bills of lading, transfer documents, yield reports, and other documents relative to the acquisition of fuel.

(d) A record of fuel disbursements, invoices, bills of lading and other documents relative to the disbursement of fuel.

(2) How long must I retain my records? Records ((shall)) will be maintained and kept for a period of not less than five years in their original form. The department may make such examinations of the records, facilities, equipment, and aircraft of distributors, certified users and consumers of aircraft fuel as necessary in carrying out the provisions of this chapter.

[Statutory Authority: RCW 82.42.100. 01-08-083, 308-78-070, filed 4/4/01, effective 5/5/01. Statutory Authority: RCW 88.42.040. 99-19-097, 308-78-070, filed 9/20/99, effective 10/21/99; 90-13-039 (Order PFT 90-05), 308-78-070, filed 6/14/90, effective 7/15/90; 85-04-027 (Order PFT 85-001), 308-78-070, filed 1/31/85; 82-20-093 (Order MV 696), 308-78-070, filed 10/6/82; Order 69-10-2, 308-78-070, filed 10/29/69; Rule F, filed 9/12/67; Emergency Rule F, filed 7/21/67.]


AMENDATORY SECTION(Amending WSR 01-08-083, filed 4/4/01, effective 5/5/01)

WAC 308-78-075   Invoices issued by licensees.   (1) When is an invoice issued? Every licensee ((shall)) must issue an invoice at the time of sale((, distribution or use)). If an electronic invoice is issued, a paper copy of the invoice ((must be produced if)) is required ((by the department or)) to support a refund claim.

(2) What information ((must appear)) is required on ((each)) an invoice? ((Each invoice must include the following information:))

(a) The name and address of the seller;

(b) The name, address, and aircraft fuel tax number, if applicable, of the purchaser for all deliveries other than those made directly into the aircraft fuel tanks of unlicensed exempt carriers;

(c) The date of delivery ((()), month, day, and year(()));

(d) The location of the point of shipment. Alphanumeric codes are not allowed;

(e) The physical address of the fuel delivery((,)) or exchange if different than the purchaser address, including the name of the state, Canadian Province, or foreign country. Alphanumeric codes are not allowed;

(f) In the case of a delivery onto a federally recognized Indian reservation or into Indian country, the invoice must identify the state, U.S. possession, or Canadian Province in which the delivery took place;

(g) Name of carrier transporting fuel;

(((g))) (h) Name of product sold;

(((h))) (i) The number of U.S. gallons of product sold in net or gross ((number of U.S.)) gallons ((of product sold));

(((i))) (j) The price per gallon and the total amount charged; and

(((j))) (k) A statement on the invoice indicating ((whether)) if the fuel has been sold ((with or)) without the Washington state fuel tax((;

(k) In the case of a delivery onto a federally recognized Indian reservation or onto Indian country, the invoice must identify the state within the contiguous United States, Hawaii, Alaska, District of Columbia, U.S. possession, or Canadian Province in which the delivery took place)).

(3) What happens if ((an)) a purchaser's invoice is lost or destroyed? ((If an invoice is lost or destroyed,)) The seller ((shall)) can issue a duplicate or copy containing all information ((that appeared)) on the original invoice, if requested by the purchaser. The copies ((shall)) must be plainly marked "copy" or "duplicate."

(4) What happens if an incorrect invoice is issued to the purchaser? The seller must ((retrieve the incorrect invoice and)) issue a corrected invoice to the purchaser. The invoice must clearly indicate that it is a corrected invoice and reference the original invoice.

[Statutory Authority: RCW 82.42.100. 01-08-083, 308-78-075, filed 4/4/01, effective 5/5/01.]


AMENDATORY SECTION(Amending WSR 01-08-083, filed 4/4/01, effective 5/5/01)

WAC 308-78-080   Filing of refund((s)) claims for nonlicensees.   (1) ((What do I have to do to claim)) How do I apply for a refund for aircraft fuel? ((In order to claim a refund for aircraft fuel tax, you shall file a claim upon forms provided by the department in the same manner and under the same conditions as provided for refund of motor vehicle fuel in RCW 82.36.310.)) Contact the department for a refund permit application and instructions.

(2) ((Is there a time limit to claim an aircraft fuel tax refund? Yes, claims for refund may not be filed later than)) What time period can I file for a refund? You must file within thirteen months ((from the date)) of the fuel purchase ((of such aircraft fuel under the same conditions as provided for motor vehicle fuel in RCW 82.36.330)) date. The department will use the postmark date to determine the thirteen-month time frame. We will not accept multiple refund claims for the same month. For example, if you have made a claim for purchases in June you cannot claim additional purchases for June on another claim form.

(3) ((Can the department verify the validity of refund claims? Yes, the department may examine the books and records of the claimant in order to establish the validity of any claim for refund under the same conditions as provided for motor vehicle fuel in RCW 82.36.340.)) What do I need to send with my refund claim? You must send in your fuel purchase invoices, schedules, and other documents listed on the refund claim form. If electronic invoices were issued, you must provide paper copies.

(4) How do I account for my inventory? Any fuel on hand, by physical measurement, at the end of the claim period should be reported as ending inventory. This figure should be reported as the beginning inventory on your next claim form.

(5) What does a licensed distributor send with their refund claim? Summary schedules must be provided and the department may request invoices.

(6) The following can sign a refund claim form:

(a) Individuals - permit holder;

(b) Partnership - any one of the partners;

(c) Business firm or corporation - owner, corporate officer or other authorized agent.

(7) Can invoices have a different name than what is on the claim form? No.

(8) Can I request that my refund be assigned to another person? Yes, if we receive a letter stating whom you would like the claim assigned to.

(9) How long will it take until I receive my refund? Within thirty business days after we receive a properly completed claim.

[Statutory Authority: RCW 82.42.100. 01-08-083, 308-78-080, filed 4/4/01, effective 5/5/01. Statutory Authority: RCW 88.42.040. 99-19-097, 308-78-080, filed 9/20/99, effective 10/21/99; 85-04-027 (Order PFT 85-001), 308-78-080, filed 1/31/85; 82-20-093 (Order MV 696), 308-78-080, filed 10/6/82; Order 69-10-2, 308-78-080, filed 10/29/69; Rule G, filed 9/12/67; Emergency Rule G, filed 7/21/67.]


AMENDATORY SECTION(Amending WSR 01-08-083, filed 4/4/01, effective 5/5/01)

WAC 308-78-090   Mitigation of penalties and((/or)) interest.   (1) ((Under)) What ((circumstances may)) fee, ((a)) penalty ((and/))or interest may be mitigated or reduced? The department may mitigate((, extinguish and/or adjust)) fees, penalties, ((and/))or interest ((arising)) from:

Late or missing fuel tax returns((,));

Unpaid or underpaid taxes((, lack of complete));

Incomplete records((, license revocation penalties and)) to support reported fuel usage; or

Assessments.

(2) How will the department ((determine whether fees, penalties and/or interest will be mitigated)) make the decision? The department ((will)) may review records, account history, or other information ((in arriving at its decision.

(3) What happens if I do not pay my tax assessment on time? You will be assessed additional penalties and/or interest)).

[Statutory Authority: RCW 82.42.100. 01-08-083, 308-78-090, filed 4/4/01, effective 5/5/01. Statutory Authority: RCW 88.42.040. 99-19-097, 308-78-090, filed 9/20/99, effective 10/21/99. Statutory Authority: RCW 82.42.040 and 82.42.100. 92-01-015, 308-78-090, filed 12/6/91, effective 1/6/92.]


AMENDATORY SECTION(Amending WSR 00-08-032, filed 3/28/00, effective 4/28/00)

WAC 308-78-100   Dishonored checks.   (1) What will happen if my check ((becomes)) is dishonored? ((A dishonored check represents failure to pay aircraft fuel taxes, fees and/or penalties and interest when due, and)) The department will ((enforce such aircraft fuel licensing and taxing laws as are necessary to recover the unpaid taxes and fees when they become due and payable.

(2) What form of payment does the department require for dishonored checks? Any registrant who tenders a check that is subsequently dishonored by a financial institution upon which it was drawn, may be required to tender all subsequent payments in certified funds, i.e., cash, cashier's check, certified check, traveler's check, official)) take collection action to recover any amounts owing and require all subsequent payments to be made in guaranteed funds, such as cash, cashier's check, or money order.

(((3))) (2) Are there any additional fees charged for a dishonored check (((DHC)))? Yes, a handling fee ((shall)) will be ((assessed)) charged by the department for each dishonored check ((dishonored by the financial institution)).

[Statutory Authority: RCW 46.01.110, 82.36.435, 82.38.260, 82.42.040, 46.87.010(2). 00-08-032, 308-78-100, filed 3/28/00, effective 4/28/00.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 308-78-050 Supporting documents for tax exempt transactions.

Washington State Code Reviser's Office