AN ACT Relating to fuel
tax evasion; amending RCW 82.36.030, 82.36.045, 82.36.060, 82.36.070,
82.36.160, 82.36.390, 82.38.030, 82.38.110, 82.38.120, 82.38.140, 82.38.150,
82.38.170, 82.42.020, 82.42.040, 82.42.060, and 82.42.080; creating new
sections; and prescribing penalties.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 82.36.030 and 1994 c
262 s 18 are each amended to read as follows:
Every distributor shall
on or before the twenty-fifth day of each calendar month file, on forms
furnished by the department, a statement signed by the distributor or his or
her authorized agent showing the total number of gallons of motor vehicle
fuel sold, distributed, or used by such distributor within this state during
the preceding calendar month and, for counties within which an additional
excise tax on motor vehicle fuel has been levied by that jurisdiction under RCW
82.80.010, showing the total number of gallons of motor vehicle fuel sold,
distributed, or used by the distributor within the boundaries of the county
during the preceding calendar month. As directed by the department, the
distributor shall periodically submit with the statement, on forms furnished by
the department, updated license information.
Sec. 2. RCW 82.36.045 and 1991 c
339 s 1 are each amended to read as follows:
(1) If the department
determines that the tax reported by a motor vehicle fuel distributor is
deficient, the department shall assess the deficiency on the basis of
information available to it, and shall add a penalty of two percent of the
amount of the deficiency.
(2) If a distributor,
whether licensed or not licensed as such, fails, neglects, or refuses to file a
motor vehicle fuel tax report the department shall, on the basis of information
available to it, determine the tax liability of the distributor for the period
during which no report was filed. The department shall add the penalty
provided in subsection (1) of this section to the tax. An assessment made by
the department under this subsection or subsection (1) of this section is
presumed to be correct. In any case, where the validity of the assessment is
questioned, the burden is on the person who challenges the assessment to
establish by a fair preponderance of evidence that it is erroneous or
excessive, as the case may be.
(3) If a distributor
files a false or fraudulent report with intent to evade the tax imposed by this
chapter, the department shall add to the amount of deficiency a penalty equal
to twenty-five percent of the deficiency, in addition to the penalty provided
in subsections (1) and (2) of this section and all other penalties prescribed
by law.
(4) Motor vehicle fuel
tax, penalties, and interest payable under this chapter bears interest at the
rate of one percent per month, or fraction thereof, from the first day of the
calendar month after the amount or any portion of it should have been paid
until the date of payment. If a distributor establishes by a fair
preponderance of evidence that the failure to pay the amount of tax due was
attributable to reasonable cause and was not intentional or willful, the
department may waive the penalty. The department may waive the interest when
it determines the cost of processing or collection of the interest exceeds the
amount of interest due.
(5) Except in the case
of a fraudulent report, neglect or refusal to make a report, or failure to pay
or to pay the proper amount, the department shall assess the deficiency under
subsection (1) or (2) of this section within ((three)) five years
from the last day of the succeeding calendar month after the reporting period
for which the amount is proposed to be determined or within ((three)) five
years after the return is filed, whichever period expires later.
(6) Except in the case
of violations of filing a false or fraudulent report, if the department deems
mitigation of penalties and interest to be reasonable and in the best interest
of carrying out the purpose of this chapter, it may mitigate such assessments
upon whatever terms the department deems proper, giving consideration to the
degree and extent of the lack of records and reporting errors. The department
may ascertain the facts regarding recordkeeping and payment penalties in lieu
of more elaborate proceedings under this chapter.
(7) A distributor
against whom an assessment is made under subsection (1) or (2) of this section
may petition for a reassessment within thirty days after service upon the
distributor of notice of the assessment. If the petition is not filed within
the thirty-day period, the amount of the assessment becomes final at the
expiration of that period.
If a petition for
reassessment is filed within the thirty-day period, the department shall
reconsider the assessment and, if the distributor has so requested in its
petition, shall grant the distributor an oral hearing and give the distributor
twenty days' notice of the time and place of the hearing. The department may
continue the hearing from time to time. The decision of the department upon a
petition for reassessment becomes final thirty days after service of notice
upon the distributor.
An assessment made by
the department becomes due and payable when it becomes final. If it is not
paid to the department when due and payable, the department shall add a penalty
of ten percent of the amount of the tax.
(8) In a suit brought
to enforce the rights of the state under this chapter, the assessment showing
the amount of taxes, penalties, interest, and cost unpaid to the state is prima
facie evidence of the facts as shown.
(9) A notice of
assessment required by this section must be served personally or by mail. If
it is served by mail, service shall be made by deposit of the notice in the
United States mail, postage prepaid, addressed to the distributor at the most
current address furnished to the department.
(10) The tax
required by this chapter, to be collected by the seller, is held in trust by
the seller until paid to the department, and a seller who appropriates or converts
the tax collected to his or her own use or to any use other than the payment of
the tax to the extent that the money required to be collected is not available
for payment on the due date as prescribed in this chapter is guilty of a
felony, or gross misdemeanor in accordance with the theft and anticipatory
provisions of Title 9A RCW. A person, partnership, corporation, or corporate
officer who fails to collect the tax imposed by this section, or who has
collected the tax and fails to pay it to the department in the manner
prescribed by this chapter, is personally liable to the state for the amount of
the tax.
Sec. 3. RCW 82.36.060 and 1994 c
262 s 19 are each amended to read as follows:
Every person, before
becoming a distributor or continuing in business as a distributor, shall make
an application to the department for a license authorizing the applicant to
engage in business as a distributor. Applications for such licenses shall be made
to the department on forms to be furnished by the department.
Every application
for a distributor's license must contain the following information to the
extent it applies to the applicant:
(1) Proof as the
department may require concerning the applicant's identity, including but not
limited to his or her fingerprints or those of the officers of a corporation
making the application;
(2) The applicant's
form and place of organization including proof that the individual,
partnership, or corporation is licensed to do business in this state;
(3) The
qualification and business history of the applicant and any partner, officer,
or director;
(4) The applicant's
financial condition or history including a bank reference and whether the
applicant or any partner, officer, or director has ever been adjudged bankrupt
or has an unsatisfied judgment in a federal or state court;
(5) Whether the
applicant has been adjudged guilty of a crime that directly relates to the
business for which the license is sought and the time elapsed since the
conviction is less than ten years, or has suffered a judgment within the
preceding five years in a civil action involving fraud, misrepresentation, or
conversion and in the case of a corporation or partnership, all directors,
officers, or partners.
After receipt of an
application for a license, the director may conduct an investigation to
determine whether the facts set forth are true. The director may require a
fingerprint record check of the applicant through the Washington state patrol
criminal identification system and the federal bureau of investigation before
issuance of a license. The results of the background investigation including
criminal history information may be released to authorized department personnel
as the director deems necessary. The department shall charge a license holder
or license applicant a fee of fifty dollars for each background investigation
conducted.
An applicant who
makes a false statement of a material fact on the application may be prosecuted
for false swearing as defined by RCW 9A.72.040.
Before granting any
license authorizing any person to engage in business as a distributor, the
department shall require applicant to file with the department, in such form as
shall be prescribed by the department, a corporate surety bond duly executed by
the applicant as principal, payable to the state and conditioned for faithful
performance of all the requirements of this chapter, including the payment of
all taxes, penalties, and other obligations arising out of this chapter. The
total amount of the bond or bonds, required of any distributor shall be fixed
by the department and may be increased or reduced by the department at any time
subject to the limitations herein provided. In fixing the total amount of the
bond or bonds required of any distributor, the department shall require a bond
or bonds equivalent in total amount to twice the estimated monthly excise tax
determined in such manner as the department may deem proper. If at any time
the estimated excise tax to become due during the succeeding month amounts to
more than fifty percent of the established bond, the department shall require
additional bonds or securities to maintain the marginal ratio herein specified
or shall demand excise tax payments to be made weekly or semimonthly to meet
the requirements hereof.
((In lieu of a bond
in excess of five thousand dollars the distributor may file with the department
a property statement setting forth a complete description of all his property
and the values thereof, and showing the amount of any indebtedness or
encumbrance thereon to the end that the department may ascertain whether or not
the distributor can be compelled to respond in twice the amount of the taxes
due or to become due hereunder. If the department determines that the
distributor can be compelled to respond in twice the amount of the tax the
department may accept such statement in lieu of a bond in excess of five
thousand dollars. The department may at any time demand from the distributor a
new property statement and may at any time if the department deems the property
of the distributor insufficient to secure the payment of twice the amount of
the taxes require the distributor to furnish a bond in such amount as will
secure the payment of twice the amount of the taxes.))
The total amount of the
bond or bonds required of any distributor shall never be less than five
thousand dollars nor more than fifty thousand dollars.
No recoveries on any
bond or the execution of any new bond shall invalidate any bond and no
revocation of any license shall effect the validity of any bond but the total
recoveries under any one bond shall not exceed the amount of the bond.
In lieu of any such
bond or bonds in total amount as herein fixed, a distributor may deposit with
the state treasurer, under such terms and conditions as the department may
prescribe, a like amount of lawful money of the United States or bonds or other
obligations of the United States, the state, or any county of the state, of an
actual market value not less than the amount so fixed by the department.
Any surety on a bond
furnished by a distributor as provided herein shall be released and discharged
from any and all liability to the state accruing on such bond after the
expiration of thirty days from the date upon which such surety has lodged with
the department a written request to be released and discharged, but this
provision shall not operate to relieve, release, or discharge the surety from
any liability already accrued or which shall accrue before the expiration of
the thirty day period. The department shall promptly, upon receiving any such
request, notify the distributor who furnished the bond; and unless the
distributor, on or before the expiration of the thirty day period, files a new
bond, or makes a deposit in accordance with the requirements of this section,
the department shall forthwith cancel the distributor's license. Whenever a
new bond is furnished by a distributor, the department shall cancel his or
her old bond as soon as the department and the attorney general are
satisfied that all liability under the old bond has been fully discharged.
The department may
require a distributor to give a new or additional surety bond or to deposit
additional securities of the character specified in this section if, in its
opinion, the security of the surety bond theretofore filed by such distributor,
or the market value of the properties deposited as security by the distributor,
shall become impaired or inadequate; and upon the failure of the distributor to
give such new or additional surety bond or to deposit additional securities
within thirty days after being requested so to do by the department, the
department shall forthwith cancel his or her license.
Sec. 4. RCW 82.36.070 and 1994 c
262 s 20 are each amended to read as follows:
The application in
proper form having been accepted for filing, the filing fee paid, and the bond
or other security having been accepted and approved, the department shall issue
to the applicant a license to transact business as a distributor in the state,
and such license shall be valid until canceled or revoked.
The license so issued
by the department shall not be assignable, and shall be valid only for the
distributor in whose name issued.
The department shall
keep and file all applications and bonds with an alphabetical index thereof,
together with a record of all licensed distributors.
Each distributor shall
be assigned a license number upon qualifying for a license hereunder, and the
department shall issue to each such licensee a license certificate which shall
be displayed conspicuously by the distributor at his or her principal
place of business. The department may refuse to issue or may revoke a motor
vehicle fuel distributor license, to a person:
(1) Who formerly held a
motor vehicle fuel distributor's license that, before the time of filing for
application, has been revoked or canceled for cause;
(2) Who is a
subterfuge for the real party in interest whose license has been revoked or
canceled for cause;
(3) Who, as an
individual licensee or officer, director, owner, or managing employee of a
nonindividual licensee, has had a motor vehicle fuel distributor license
revoked or canceled for cause;
(4) Who has an
unsatisfied debt to the state assessed under either chapter 82.36, 82.37,
82.38, 82.42, or 46.87 RCW; ((or))
(5) Who formerly
held as an individual, officer, director, owner, managing employee of a
nonindividual licensee, or subterfuge for a real party in interest, a license
issued by the federal government or a state that allowed a person to buy or
sell untaxed motor vehicle or special fuel, which license, before the time of
filing for application, has been revoked for cause;
(6) Who pled guilty
to or was convicted as an individual, corporate officer, director, owner, or
managing employee in this or any other state or in any federal jurisdiction of
a gross misdemeanor or felony crime directly related to the business or has
been subject to a civil judgment involving fraud, misrepresentation,
conversion, or dishonesty, notwithstanding chapter 9.96A RCW;
(7) Who
misrepresented or concealed a material fact in obtaining a license or in
reinstatement thereof;
(8) Who violated a
statute or administrative rule regulating fuel taxation or distribution;
(9) Who failed to
cooperate with the department's investigations by:
(a) Not furnishing
papers or documents;
(b) Not furnishing
in writing a full and complete explanation regarding a matter under investigation
by the department; or
(c) Not responding
to subpoenas issued by the department, whether or not the recipient of the
subpoena is the subject of the proceeding;
(10) Who failed to
comply with an order issued by the director; or
(11) Upon other
sufficient cause being shown.
Before such a refusal
or revocation, the department shall grant the applicant a hearing and shall
give the applicant at least twenty days' written notice of the time and place
of the hearing.
For the purpose of
considering an application for a distributor's license, the department may
inspect, cause an inspection, investigate, or cause an investigation of the
records of this or any other state or of the federal government to ascertain
the veracity of the information on the application form and the applicant's
criminal and licensing history.
The department may, in
the exercise of reasonable discretion, suspend a motor vehicle distributor
license at any time before and pending such a hearing for unpaid taxes or
reasonable cause.
Sec. 5. RCW 82.36.160 and 1961 c
15 s 82.36.160 are each amended to read as follows:
Every distributor shall
maintain in the office of his or her principal place of business in this
state, for a period of ((three)) five years, records of motor
vehicle fuel received, sold, distributed, or used by ((him)) the
distributor, in such form as the director may prescribe, together with
invoices, bills of lading, and other pertinent papers as may be required under
the provisions of this chapter.
Every dealer purchasing
motor vehicle fuel taxable under this chapter for the purpose of resale, shall
maintain within this state, for a period of two years a record of motor vehicle
fuels received, the amount of tax paid to the distributor as part of the
purchase price, together with delivery tickets, invoices, and bills of lading,
and such other records as the director shall require.
Sec. 6. RCW 82.36.390 and 1961 c
15 s 82.36.390 are each amended to read as follows:
Any person who, through
false statement, trick, or device, or otherwise, obtains motor vehicle fuel for
export and fails to export the same or any portion thereof, or causes such
motor vehicle fuel or any thereof not to be exported, or who diverts said motor
vehicle fuel or any thereof or who causes it to be diverted from interstate or
foreign transit begun in this state, or who unlawfully returns such fuel or any
thereof to this state and sells or uses it or any thereof in this state or
causes it or any thereof to be used or sold in this state and fails to notify
the distributor from whom such motor vehicle fuel was originally purchased of
his or her act, and any distributor or other person who conspires with
any person to withhold from export, or divert from interstate or foreign
transit begun in this state, or to return motor vehicle fuel to this state for
sale or use with intent to avoid any of the taxes imposed by this chapter, ((shall
be)) is guilty of a ((gross misdemeanor, and upon conviction
thereof shall be punished by a fine of not less than five hundred dollars nor
more than five thousand dollars, or by imprisonment in the county jail not
exceeding one year, or by both such fine and imprisonment)) felony, or
gross misdemeanor in accordance with the theft and anticipatory provisions of
Title 9A RCW. Each shipment illegally diverted or illegally returned shall
be a separate offense, and the unit of each shipment shall be the cargo of one vessel,
or one railroad carload, or one automobile truck load, or such truck and
trailer load, or one drum, or one barrel, or one case or one can.
Sec. 7. RCW 82.38.030 and 1989 c
193 s 3 are each amended to read as follows:
(1) There is hereby
levied and imposed upon special fuel users a tax at the rate computed in the
manner provided in RCW 82.36.025 per gallon or each one hundred cubic feet of
compressed natural gas measured at standard pressure and temperature on the use
of special fuel in any motor vehicle operated upon the highways of this state
during the fiscal year for which such rate is applicable.
(2) The tax shall be
collected by the special fuel dealer and shall be paid over to the department
as hereinafter provided: (a) With respect to all special fuel delivered by a
special fuel dealer into supply tanks of motor vehicles or into storage facilities
used for the fueling of motor vehicles at unbonded service stations in this
state; or (b) in all other transactions where the purchaser is not the holder
of a valid special fuel license issued pursuant to this chapter allowing the
purchase of untaxed special fuel, except sales of special fuel for export. To
claim an exemption on account of sales by a licensed special fuel dealer for
export, the purchaser shall obtain from the selling special fuel dealer, and
such selling special fuel dealer must furnish the purchaser, an invoice giving
such details of the sale for export as the director may require, copies of
which shall be furnished the department and the entity of the state or foreign
jurisdiction of destination which is charged by the laws of that state or
foreign jurisdiction with the control or monitoring or both, of the sales or
movement of special fuel in that state or foreign jurisdiction.
(3) The tax shall be
paid over to the department by the special fuel user as hereinafter provided
with respect to the taxable use of special fuel upon which the tax has not
previously been imposed.
It is expressly
provided that delivery of special fuel may be made without collecting the tax
otherwise imposed, when such deliveries are made by a bonded special fuel
dealer to special fuel users who are authorized by the department as
hereinafter provided, to purchase fuel without payment of tax to the bonded
special fuel dealer.
(4) The tax required
by this chapter, to be collected by the seller, is held in trust by the seller
until paid to the department, and a seller who appropriates or converts the tax
collected to his or her own use or to any use other than the payment of the tax
to the extent that the money required to be collected is not available for payment
on the due date as prescribed in this chapter is guilty of a felony, or gross
misdemeanor in accordance with the theft and anticipatory provisions of Title
9A RCW. A person, partnership, corporation, or corporate officer who fails to
collect the tax imposed by this section, or who has collected the tax and fails
to pay it to the department in the manner prescribed by this chapter, is
personally liable to the state for the amount of the tax.
Sec. 8. RCW 82.38.110 and 1988 c
122 s 2 are each amended to read as follows:
Application for a
special fuel dealer's license((, special fuel supplier's license,)) or a
special fuel user's license shall be made to the department. The application
shall be filed upon a form prepared and furnished by the department and shall
contain such information as the department deems necessary.
Every application
for a special fuel dealer's license must contain the following information to
the extent it applies to the applicant:
(1) Proof as the
department may require concerning the applicant's identity, including but not
limited to his or her fingerprints or those of the officers of a corporation
making the application;
(2) The applicant's
form and place of organization including proof that the individual,
partnership, or corporation is licensed to do business in this state;
(3) The
qualification and business history of the applicant and any partner, officer,
or director;
(4) The applicant's
financial condition or history including a bank reference and whether the
applicant or any partner, officer, or director has ever been adjudged bankrupt
or has an unsatisfied judgment in a federal or state court;
(5) Whether the
applicant has been adjudged guilty of a crime that directly relates to the
business for which the license is sought and the time elapsed since the
conviction is less than ten years, or has suffered a judgment within the
preceding five years in a civil action involving fraud, misrepresentation, or
conversion and in the case of a corporation or partnership, all directors,
officers, or partners.
After receipt of an
application for a license, the director may conduct an investigation to
determine whether the facts set forth are true. The director may require a
fingerprint record check of the applicant through the Washington state patrol
criminal identification system and the federal bureau of investigation before
issuance of a license. The results of the background investigation including
criminal history information may be released to authorized department personnel
as the director deems necessary. The department shall charge a license holder
or license applicant a fee of fifty dollars for each background investigation
conducted.
An applicant who
makes a false statement of a material fact on the application may be prosecuted
for false swearing as defined by RCW 9A.72.040.
No special fuel
dealer's license may be issued to any person or continued in force unless such
person has furnished bond, as defined in RCW 82.38.020, in such form as the
department may require, to secure his or her compliance with this
chapter, and the payment of any and all taxes, interest, and penalties due and
to become due hereunder. The requirement of furnishing a bond shall be waived
for special fuel dealers who only deliver special fuel into the fuel tanks of
marine vessels.
The department may
require a special fuel user to post a bond if the special fuel user, after
having been licensed, has failed to file timely reports or has failed to remit
taxes due, or when an investigation or audit indicates problems severe enough
that the department, in its discretion, determines that a bond is required to
protect the interests of the state. The department may also adopt rules
prescribing conditions that, in the department's discretion, require a bond to
protect the interests of the state.
The total amount of the
bond or bonds required of any special fuel dealer or special fuel user shall be
equivalent to three times the estimated monthly fuel tax, determined in such
manner as the department may deem proper: PROVIDED, That those special fuel
dealers having held a special fuel license for five or more years without
having said license suspended or revoked by the department shall be permitted
to reduce the amount of their bond to twice the estimated monthly tax
liability: PROVIDED FURTHER, That the total amount of the bond or bonds shall
never be less than five hundred dollars nor more than fifty thousand dollars.
Sec. 9. RCW 82.38.120 and 1995 c
274 s 21 are each amended to read as follows:
Upon receipt and
approval of an application and bond, if required, the department shall issue to
the applicant a license to act as a special fuel dealer or a special fuel
user. However, the department may refuse to issue a special fuel dealer's
license or a special fuel user's license to any person:
(1) Who formerly held
either type of license which, prior to the time of filing for application, has
been revoked for cause;
(2) Who is a
subterfuge for the real party in interest whose license prior to the time of
filing for application, has been revoked for cause;
(3) Who, as an
individual licensee, or officer, director, owner, or managing employee of a
nonindividual licensee, has had a special fuel license revoked for cause;
(4) Who has an
unsatisfied debt to the state assessed under either chapter 82.36, 82.38, or
46.87 RCW; ((or))
(5) Who formerly
held as an individual, officer, director, owner, managing employee of a
nonindividual licensee, or subterfuge for a real party in interest, a license
issued by the federal government or a state that allowed a person to buy or
sell untaxed motor vehicle or special fuel, which license, before the time of
filing for application, has been revoked for cause;
(6) Who pled guilty
to or was convicted as an individual, officer, director, owner, or managing
employee of a nonindividual licensee in this or any other state or in any
federal jurisdiction of a gross misdemeanor or felony crime directly related to
the business or has been subject to a civil judgment involving fraud,
misrepresentation, conversion, or dishonesty, notwithstanding chapter 9.96A RCW;
(7) Who
misrepresented or concealed a material fact in obtaining a license or in
reinstatement thereof;
(8) Who violated a
statute or administrative rule regulating fuel taxation or distribution;
(9) Who failed to
cooperate with the department's investigations by:
(a) Not furnishing
papers or documents;
(b) Not furnishing
in writing a full and complete explanation regarding a matter under
investigation by the department; or
(c) Not responding
to subpoenas issued by the department, whether or not the recipient of the
subpoena is the subject of the proceeding;
(10) Who failed to
comply with an order issued by the director; or
(11) Upon other
sufficient cause being shown.
Before such refusal,
the department shall grant the applicant a hearing and shall grant the
applicant at least ((five)) twenty days written notice of the
time and place thereof.
The department shall
determine from the information shown in the application or other investigation
the kind and class of license to be issued. For the purpose of considering
any application for a special fuel dealer's license, the department may
inspect, cause an inspection, investigate, or cause an investigation of the
records of this or any other state or of the federal government to ascertain
the veracity of the information on the application form and the applicant's
criminal and licensing history.
All licenses shall be
posted in a conspicuous place or kept available for inspection at the principal
place of business of the owner thereof. License holders shall reproduce the
license by photostat or other method and keep a copy on display for ready
inspection at each additional place of business or other place of storage from
which special fuel is sold, delivered or used and in each motor vehicle used by
the license holder to transport special fuel purchased by him or her for
resale, delivery or use. Every licensed special fuel user operating a motor
vehicle registered in a jurisdiction other than this state shall reproduce the
license and carry a photocopy thereof with each motor vehicle being operated
upon the highways of this state.
A special fuel dealer
may use special fuel in motor vehicles owned or operated by the dealer without
securing a license as a special fuel user but the dealer is subject to all
other conditions, requirements, and liabilities imposed herein upon a special
fuel user.
Each special fuel
dealer's license and special fuel user's license shall be valid until the
expiration date if shown on the license, or until suspended or revoked for
cause or otherwise canceled.
No special fuel
dealer's license or special fuel user's license shall be transferable.
Sec. 10. RCW 82.38.140 and 1995 c
274 s 22 are each amended to read as follows:
(1) Every special fuel
dealer, special fuel user, and every person importing, manufacturing, refining,
dealing in, transporting, or storing special fuel in this state shall keep for
a period of not less than ((three)) five years open to inspection
at all times during the business hours of the day to the department or its
authorized representatives, a complete record of all special fuel purchased or
received and all of such products sold, delivered, or used by them. Such
records shall show:
(a) The date of each
receipt;
(b) The name and
address of the person from whom purchased or received;
(c) The number of
gallons received at each place of business or place of storage in the state of
Washington;
(d) The date of each
sale or delivery;
(e) The number of
gallons sold, delivered, or used for taxable purposes;
(f) The number of
gallons sold, delivered, or used for any purpose not subject to the tax imposed
herein;
(g) The name, address,
and special fuel license number of the purchaser if the special fuel tax is not
collected on the sale or delivery;
(h) The inventories of
special fuel on hand at each place of business at the end of each month.
(2)(a) All special fuel
users using special fuel in vehicles licensed for highway operation shall
maintain detailed mileage records on an individual vehicle basis.
(b) Such operating
records shall show both on-highway and off-highway usage of special fuel on a
daily basis for each vehicle.
(3) Persons using
special fuel for heating purposes only are not required to maintain records of
fuel usage.
(4) Invoices shall be
prepared for sales and deliveries of special fuel in the manner and containing
such information as may be prescribed by the department.
Every special fuel
dealer or special fuel user making such sales or deliveries of special fuel and
every person so receiving and purchasing special fuel must each retain one copy
of each such invoice as part of the dealer's permanent records for the time and
purposes above provided.
(5) Every special fuel
user shall keep, in addition to the dealer's records of deliveries into motor
vehicles, a complete record as prescribed by the department of the total
gallons of special fuel used for other purposes during each month and the
purposes for which said special fuel was used.
(6) Subsections (1)(f),
(2)(b), and (5) of this section do not apply to special fuel users when the
special fuel is used off-highway in farming, construction, or logging
operations. Upon filing a special fuel user tax report, every such special
fuel user shall certify and bear the burden of proof as to the number of
gallons of special fuel used off-highway.
Sec. 11. RCW 82.38.150 and 1995 c
274 s 23 are each amended to read as follows:
For the purpose of
determining the amount of liability for the tax herein imposed, and to
periodically update license information, each special fuel dealer and each
special fuel user shall file tax reports with the department, on forms
prescribed by the department. Special fuel dealers shall file the reports at
the intervals as shown in the following schedule:
Estimated
Yearly
Tax
Liability Reporting Frequency
$ 0
‑ $100 Yearly
$101
‑ 250 Semi-yearly
$251
‑ 499 Quarterly
$500 and
over Monthly
Special fuel users
whose estimated yearly tax liability is two hundred fifty dollars or less,
shall file a report yearly, and special fuel users whose estimated yearly tax
liability is more than two hundred fifty dollars, shall file reports quarterly.
The department shall
establish the reporting frequency for each applicant at the time the special
fuel license is issued. If it becomes apparent that any special fuel licensee
is not reporting in accordance with the above schedule, the department shall
change the licensee's reporting frequency by giving thirty days' notice to the
licensee by mail to the licensee's address of record. A report shall be filed
with the department even though no special fuel was used, or tax is due, for
the reporting period. Each tax report shall contain a declaration by the
person making the same, to the effect that the statements contained therein are
true and are made under penalties of perjury, which declaration shall have the
same force and effect as a verification of the report and is in lieu of such
verification. The report shall show such information as the department may
reasonably require for the proper administration and enforcement of this
chapter. For counties within which an additional excise tax on special fuel
has been levied by that jurisdiction under RCW 82.80.010, the report must show
the quantities of special fuel sold, distributed, or withdrawn from bulk storage
by the reporting dealer or user within the county's boundaries and the tax
liability from its levy. The special fuel dealer or special fuel user shall
file the report on or before the twenty-fifth day of the next succeeding
calendar month following the period to which it relates.
Subject to the written
approval of the department, tax reports may cover a period ending on a day
other than the last day of the calendar month. Taxpayers granted approval to
file reports in this manner will file such reports on or before the
twenty-fifth day following the end of the reporting period. No change to this
reporting period will be made without the written authorization of the
department.
If the final filing
date falls on a Saturday, Sunday, or legal holiday the next secular or business
day shall be the final filing date. Such reports shall be considered filed or
received on the date shown by the post office cancellation mark stamped upon an
envelope containing such report properly addressed to the department, or on the
date it was mailed if proof satisfactory to the department is available to
establish the date it was mailed.
The department, if it
deems it necessary in order to insure payment of the tax imposed by this
chapter, or to facilitate the administration of this chapter, has the authority
to require the filing of reports and tax remittances at shorter intervals than
one month if, in its opinion, an existing bond has become insufficient.
The department may
permit any special fuel user whose sole use of special fuel is in motor
vehicles or equipment exempt from tax as provided in RCW 82.38.075 and
82.38.080 (1), (2), (3), (8), and (9), in lieu of the reports required in this
section, to submit reports annually or as requested by the department, in such
form as the department may require.
A special
fuel user whose sole use of special fuel is for purposes other than the
propulsion of motor vehicles upon the public highways of this state shall not
be required to submit the reports required in this section.
Sec. 12. RCW 82.38.170 and 1995 c
274 s 24 are each amended to read as follows:
(1) If any special fuel
dealer or special fuel user fails to pay any taxes collected or due the state
of Washington by said dealer or user within the time prescribed by RCW
82.38.150 and 82.38.160, said dealer or user shall pay in addition to such tax
a penalty of ten percent of the amount thereof.
(2) If it be determined
by the department that the tax reported by any special fuel dealer or special
fuel user is deficient it may proceed to assess the deficiency on the basis of
information available to it and there shall be added to this deficiency a
penalty of ten percent of the amount of the deficiency.
(3) If any special fuel
dealer or special fuel user, whether or not he or she is licensed as such,
fails, neglects, or refuses to file a special fuel tax report, the department
may, on the basis of information available to it, determine the tax liability
of the special fuel dealer or the special fuel user for the period during which
no report was filed, and to the tax as thus determined, the department shall
add the penalty and interest provided in subsection (2) of this section. An
assessment made by the department pursuant to this subsection or to subsection
(2) of this section shall be presumed to be correct, and in any case where the
validity of the assessment is drawn in question, the burden shall be on the
person who challenges the assessment to establish by a fair preponderance of
the evidence that it is erroneous or excessive as the case may be.
(4) If any special fuel
dealer or special fuel user shall establish by a fair preponderance of evidence
that his or her failure to file a report or pay the proper amount of tax within
the time prescribed was due to reasonable cause and was not intentional or
willful, the department may waive the penalty prescribed in subsections (1),
(2), and (3) of this section.
(5) If any special fuel
dealer or special fuel user shall file a false or fraudulent report with intent
to evade the tax imposed by this chapter, there shall be added to the amount of
deficiency determined by the department a penalty equal to twenty-five percent
of the deficiency, in addition to the penalty provided in subsection (2) of
this section and all other penalties prescribed by law.
(6) Any fuel tax,
penalties, and interest payable under this chapter shall bear interest at the
rate of one percent per month, or fraction thereof, from the first day of the
calendar month after the amount or any portion thereof should have been paid
until the date of payment: PROVIDED, That the department may waive the
interest when it determines that the cost of processing the collection of the
interest exceeds the amount of interest due.
(7) Except in the case
of violations of filing a false or fraudulent report, if the department deems
mitigation of penalties and interest to be reasonable and in the best interests
of carrying out the purpose of this chapter, it may mitigate such assessments
upon whatever terms the department deems proper, giving consideration to the
degree and extent of the lack of records and reporting errors. The department
may ascertain the facts regarding recordkeeping and payment penalties in lieu
of more elaborate proceedings under this chapter.
(8) Except in the case
of a fraudulent report or of neglect or refusal to make a report, every
deficiency shall be assessed under subsection (2) of this section within ((three))
five years from the twenty-fifth day of the next succeeding calendar
month following the reporting period for which the amount is proposed to be
determined or within ((three)) five years after the return is
filed, whichever period expires the later.
(9) Any special fuel
dealer or special fuel user against whom an assessment is made under the
provisions of subsections (2) or (3) of this section may petition for a
reassessment thereof within thirty days after service upon the special fuel
dealer or special fuel user of notice thereof. If such petition is not filed
within such thirty day period, the amount of the assessment becomes final at
the expiration thereof.
If a petition for
reassessment is filed within the thirty day period, the department shall
reconsider the assessment and, if the special fuel dealer or special fuel user
has so requested in his or her petition, shall grant such special fuel dealer
or special fuel user an oral hearing and give the special fuel dealer or
special fuel user ten days' notice of the time and place thereof. The
department may continue the hearing from time to time. The decision of the
department upon a petition for reassessment shall become final thirty days
after service upon the special fuel dealer or special fuel user of notice
thereof.
Every assessment made
by the department shall become due and payable at the time it becomes final and
if not paid to the department when due and payable, there shall be added
thereto a penalty of ten percent of the amount of the tax.
(10) Any notice of
assessment required by this section shall be served personally or by mail; if
by mail, service shall be made by depositing such notice in the United States
mail, postage prepaid addressed to the special fuel dealer or special fuel user
at his or her address as the same appears in the records of the department.
(11) Any licensee who
has had either their special fuel user license or special fuel dealer license,
or both, revoked shall pay a one hundred dollar penalty prior to the issuance
of a new license.
(12) Any person who,
upon audit or investigation by the department, is found to have not paid
special fuel taxes as required by this chapter shall be subject to cancellation
of all vehicle registrations for vehicles utilizing special fuel as a means of
propulsion. Any unexpired Washington tonnage on the vehicles in question may
be transferred to a purchaser of the vehicles upon application to the
department who shall hold such tonnage in its custody until a sale of the vehicle
is made or the tonnage has expired.
Sec. 13. RCW 82.42.020 and 1982
1st ex.s. c 25 s 2 are each amended to read as follows:
There is hereby levied,
and there shall be collected by every distributor of aircraft fuel, an excise
tax at the rate computed under RCW 82.42.025 on each gallon of aircraft fuel
sold, delivered or used in this state: PROVIDED HOWEVER, That such aircraft
fuel excise tax shall not apply to fuel for aircraft that both operate from a
private, non-state-funded airfield during at least ninety-five percent of the
aircraft's normal use and are used principally for the application of
pesticides, herbicides, or other agricultural chemicals: PROVIDED FURTHER,
That there shall be collected from every consumer or user of aircraft fuel
either the use tax imposed by RCW 82.12.020, as amended, or the retail sales
tax imposed by RCW 82.08.020, as amended, collection procedure to be as
prescribed by law and/or rule or regulation of the department of revenue. The
taxes imposed by this chapter shall be collected and paid to the state but once
in respect to any aircraft fuel.
The tax required by
this chapter, to be collected by the seller, is held in trust by the seller
until paid to the department, and a seller who appropriates or converts the tax
collected to his or her own use or to any use other than the payment of the tax
to the extent that the money required to be collected is not available for
payment on the due date as prescribed in this chapter is guilty of a felony, or
gross misdemeanor in accordance with the theft and anticipatory provisions of
Title 9A RCW. A person, partnership, corporation, or corporate officer who
fails to collect the tax imposed by this section, or who has collected the tax
and fails to pay it to the department in the manner prescribed by this chapter,
is personally liable to the state for the amount of the tax.
Sec. 14. RCW 82.42.040 and 1982
1st ex.s. c 25 s 5 are each amended to read as follows:
The director shall by
rule and regulation adopted as provided in chapter 34.05 RCW (Administrative
Procedure Act) set up the necessary administrative procedure for collection by
the department of the aircraft fuel excise tax as provided for in RCW
82.42.020, placing the responsibility of collection of said tax upon every
distributor of aircraft fuel within the state; he may require the licensing of
every distributor of aircraft fuel and shall require such a corporate surety
bond or security of any distributor or person not otherwise bonded under
provisions of chapter 82.36 RCW as is provided for distributors of motor
vehicle fuel under RCW 82.36.060; he shall provide such forms and may require
such reports or statements as in his determination shall be necessary for the
proper administration of this chapter. The director may require such records
to be kept, and for such periods of time, as deemed necessary for the
administration of this chapter, which records shall be available at all times
for the director or his representative who may require a statement under oath
as to the contents thereof.
Every application
for a distributor's license must contain the following information to the
extent it applies to the applicant:
(1) Proof as the
department may require concerning the applicant's identity, including but not
limited to his or her fingerprints or those of the officers of a corporation
making the application;
(2) The applicant's
form and place of organization including proof that the individual,
partnership, or corporation is licensed to do business in this state;
(3) The
qualification and business history of the applicant and any partner, officer,
or director;
(4) The applicant's
financial condition or history including a bank reference and whether the
applicant or any partner, officer, or director has ever been adjudged bankrupt
or has an unsatisfied judgment in a federal or state court;
(5) Whether the
applicant has been adjudged guilty of a crime that directly relates to the
business for which the license is sought and the time elapsed since the
conviction is less than ten years, or has suffered a judgment within the
preceding five years in a civil action involving fraud, misrepresentation, or
conversion and in the case of a corporation or partnership, all directors,
officers, or partners.
After receipt of an
application for a license, the director may conduct an investigation to
determine whether the facts set forth are true. The director may require a
fingerprint record check of the applicant through the Washington state patrol
criminal identification system and the federal bureau of investigation before
issuance of a license. The results of the background investigation including
criminal history information may be released to authorized department personnel
as the director deems necessary. The department shall charge a license holder
or license applicant a fee of fifty dollars for each background investigation
conducted.
An applicant who
makes a false statement of a material fact on the application may be prosecuted
for false swearing as defined by RCW 9A.72.040.
Sec. 15. RCW 82.42.060 and 1969
ex.s. c 254 s 5 are each amended to read as follows:
The amount of aircraft
fuel excise tax imposed under RCW 82.42.020 for each month shall be paid to the
director on or before the twenty-fifth day of the month thereafter, and if not
paid prior thereto, shall become delinquent at the close of business on that
day, and a penalty of ten percent of such excise tax must be added thereto for
delinquency. Any aircraft fuel tax, penalties, and interest payable under the
provisions of this chapter shall bear interest at the rate of one percent per
month, or fraction thereof, from the first day of the calendar month after the
close of the monthly period for which the amount or any portion thereof should
have been paid until the date of payment. RCW 82.36.070 applies to the
issuance, refusal, or revocation of a license issued under this chapter.
The provisions of RCW 82.36.110 relating to a lien for taxes, interests or
penalties due, shall be applicable to the collection of the aircraft fuel
excise tax provided in RCW 82.42.020, and the provisions of RCW 82.36.120,
82.36.130 and 82.36.140 shall apply to any distributor of aircraft fuel with
respect to the aircraft fuel excise tax imposed under RCW 82.42.020.
Sec. 16. RCW 82.42.080 and 1982
1st ex.s. c 25 s 7 are each amended to read as follows:
Any person violating
any provision of this chapter or any rule or regulation of the director
promulgated hereunder, or making any false statement, or concealing any
material fact in any report, statement, record or claim, or who commits any act
with intent to avoid payment of the aircraft fuel excise tax imposed by this
chapter, or who conspires with another person with intent to interfere with the
orderly collection of such tax due and owing under this chapter, ((shall be))
is guilty of a gross misdemeanor.
NEW SECTION. Sec.
17. By December 31, 1996, the
department of licensing shall implement a PC or server-based data base of fuel
dealer and distributor license application information.
NEW SECTION. Sec.
18. By July 1, 1996, the
department of licensing shall establish a fuel tax advisory group comprised of
state agency and petroleum industry representatives to develop or recommend
audit and investigation techniques, changes to fuel tax statutes and rules,
information protocols that allow sharing of information with other states, and
other tools that improve fuel tax administration or combat fuel tax evasion.
NEW SECTION. Sec.
19. The department of
licensing, in cooperation with the code reviser, shall propose and submit to
the legislative transportation committee by December 1, 1996, draft language to
merge chapters 82.36, 82.38, and 82.42 RCW.
