S.B. No. 1495
AN ACT
relating to the taxation of motor fuels; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (b), Section 101.009, Tax Code, is
amended to read as follows:
(b) Cigarette tax revenue allocated under Section
154.603(b) [of this code] shall be allocated as provided by Section
154.603 [of this code]. Motor fuel tax revenue shall be allocated
and deposited as provided by Subchapter F, Chapter 162 [of Chapter
153 of this code].
SECTION 2. Subsection (g), Section 111.006, Tax Code, is
amended to read as follows:
(g) Information made confidential by Subsection (a)(2) that
relates to a taxpayer's responsibilities under Chapter 162 [153]
may be examined by an official of another state or of the United
States if:
(1) the official has information that would assist the
comptroller in administering Chapter 162 [153];
(2) the comptroller is conducting or may conduct an
examination or a criminal investigation of the taxpayer that is the
subject of the information made confidential by Subsection (a)(2);
and
(3) a reciprocal agreement exists allowing the
comptroller to examine information under the control of the
official in a manner substantially equivalent to the official's
access to information under this subsection.
SECTION 3. Subsection (d), Section 111.060, Tax Code, is
amended to read as follows:
(d) Subsection (c) does not apply to the taxes imposed by
Chapters 152 and 211 or under an agreement made under Section
162.003 [153.017].
SECTION 4. Subsection (d), Section 111.064, Tax Code, is
amended to read as follows:
(d) This section does not apply to an amount paid to the
comptroller under Title 6, Property Code, or under an agreement
made under Section 162.003 [153.017].
SECTION 5. Subsection (a), Section 111.107, Tax Code, is
amended to read as follows:
(a) Except as otherwise expressly provided, a person may
request a refund or a credit or the comptroller may make a refund or
issue a credit for the overpayment of a tax imposed by this title at
any time before the expiration of the period during which the
comptroller may assess a deficiency for the tax and not thereafter
unless the refund or credit is requested:
(1) under Subchapter B of Chapter 112 and the refund is
made or the credit is issued under a court order;
(2) under the provision of Section 111.104(c)(3)
applicable to a refund claim filed after a jeopardy or deficiency
determination becomes final; or
(3) under Chapter 162 [153], except Section 162.126(f)
[153.1195(e)], 162.128(d) [153.121(d)], 162.228(f) [153.2225(e)],
or 162.230(d) [153.224(d)].
SECTION 6. Section 151.308, Tax Code, is amended to read as
follows:
Sec. 151.308. ITEMS TAXED BY OTHER LAW. (a) The following
are exempted from the taxes imposed by this chapter:
(1) oil as taxed by Chapter 202;
(2) sulphur as taxed by Chapter 203;
(3) motor fuels and special fuels as defined, taxed,
or exempted by Chapter 162 [153];
(4) cement as taxed by Chapter 181;
(5) motor vehicles, trailers, and semitrailers as
defined, taxed, or exempted by Chapter 152, other than a mobile
office as defined by Section 152.001(16);
(6) mixed beverages, ice, or nonalcoholic beverages
and the preparation or service of these items if the receipts are
taxable by Chapter 183;
(7) alcoholic beverages when sold to the holder of a
private club registration permit or to the agent or employee of the
holder of a private club registration permit if the holder or agent
or employee is acting as the agent of the members of the club and if
the beverages are to be served on the premises of the club;
(8) oil well service as taxed by Subchapter E, Chapter
191; and
(9) insurance premiums subject to gross premiums
taxes.
(b) Natural gas is exempted under Subsection (a)(3) only to
the extent that the gas is taxed as a motor fuel under Chapter 162
[153].
SECTION 7. Section 162.001, Tax Code, is amended by
amending Subdivisions (7), (9), (11), (19), (20), (29), (31), (42),
(43), and (55) and adding Subdivision (10-a) to read as follows:
(7) "Biodiesel fuel" means any motor fuel or mixture
of motor fuels, other than gasoline blended fuel, that is:
(A) derived wholly or partly from agricultural
products, vegetable oils, recycled greases, or animal fats, or the
wastes of those products or fats; and
(B) advertised, offered for sale, sold, used, or
capable of [suitable for] use[, or used] as [a motor] fuel for a
diesel-powered [in an internal combustion] engine.
(9) "Blending" means the mixing together of liquids
that produces a product that is offered for sale, sold, used, or
[one or more petroleum products with another product, regardless of
the original character of the product blended, if the product
obtained by the blending is] capable of use as fuel for a
gasoline-powered engine or diesel-powered engine [in the
generation of power for the propulsion of a motor vehicle]. The
term does not include mixing that occurs in the process of refining
by the original refiner of crude petroleum or the commingling of
products during transportation in a pipeline.
(10-a) "Bulk storage" means a container of more than
10 gallons.
(11) "Bulk transfer" means a transfer of motor fuel
from one location to another by pipeline [tender] or marine
movement [delivery] within a bulk transfer/terminal system,
including:
(A) a marine vessel movement of motor fuel from a
refinery or terminal to a terminal;
(B) a pipeline movement of motor fuel from a
refinery or terminal to a terminal;
(C) a book transfer or in-tank transfer of motor
fuel within a terminal between licensed suppliers before completion
of removal across the rack; and
(D) a two-party exchange between licensed
suppliers or between licensed suppliers and permissive suppliers.
(19) "Diesel fuel" means kerosene or another liquid,
or a combination of liquids blended together, offered for sale,
sold, [that is suitable for or] used, or capable of use as fuel for
the propulsion of a diesel-powered engine [motor vehicles]. The
term includes products commonly referred to as kerosene, light
cycle oil, #1 diesel fuel, #2 diesel fuel, dyed or undyed diesel
fuel, aviation jet fuel, biodiesel, distillate fuel, cutter stock,
or heating oil, but does not include gasoline, aviation gasoline,
or liquefied gas.
(20) "Distributor" means a person who [acquires motor
fuel from a licensed supplier, permissive supplier, or another
licensed distributor and who] makes sales of motor fuel at
wholesale. A distributor's [and whose] activities may also include
sales of motor fuel at retail.
(29) "Gasoline" means any liquid or combination of
liquids blended together, offered for sale, sold, [or] used, or
capable of use as [the] fuel for a gasoline-powered engine. The
term includes gasohol, aviation gasoline, and blending agents, but
does not include racing gasoline, diesel fuel, aviation jet fuel,
or liquefied gas.
(31) "Gasoline blended fuel" means a mixture composed
of gasoline and other liquids, including gasoline blend stocks,
gasohol, ethanol, methanol, fuel grade alcohol, and resulting
blends, other than a de minimus amount of a product such as
carburetor detergent or oxidation inhibitor, that is offered for
sale, sold, [can be] used, or capable of use as fuel for a
gasoline-powered engine [gasoline in a motor vehicle].
(42) "Motor fuel" means gasoline, diesel fuel,
liquefied gas, gasoline blended fuel, and other products that are
offered for sale, sold, [can be] used, or capable of use as fuel for
a gasoline-powered engine or a diesel-powered engine [to propel a
motor vehicle].
(43) "Motor fuel transporter" means a person who
transports gasoline, diesel fuel, [or] gasoline blended fuel,
aviation fuel, or any other motor fuel, except liquefied gas,
outside the bulk transfer/terminal system by means of a transport
vehicle, a railroad tank car, or a marine vessel. The term does not
include a person who:
(A) is licensed under this chapter as a supplier,
permissive supplier, or distributor; and
(B) exclusively transports gasoline, diesel
fuel, gasoline blended fuel, aviation fuel, or any other motor fuel
to which the person retains ownership while the fuel is being
transported by the person.
(55) "Shipping document" means a delivery document
issued [by a terminal or bulk plant operator] in conjunction with
the sale, transfer, or transport [removal] of motor fuel [from the
terminal or bulk plant]. A shipping document issued by a terminal
operator shall be machine printed. All other shipping documents [A
shipping document issued by a bulk plant] shall be typed or
handwritten on a preprinted form or machine printed.
SECTION 8. Section 162.004, Tax Code, is amended by
amending Subsections (a) and (b) and adding Subsections (a-1) and
(h) to read as follows:
(a) A person may not transport in this state any motor fuel
by barge, vessel, railroad tank car, or transport vehicle unless
the person has a shipping document for the motor fuel that complies
with this section.
(a-1) A terminal operator or operator of a bulk plant shall
give a shipping document to the person who operates the barge,
vessel, railroad tank car, or transport vehicle into which motor
fuel is loaded at the terminal rack or bulk plant rack.
(b) A [The] shipping document [issued by the terminal
operator or operator of a bulk plant] shall contain the following
information and any other information required by the comptroller:
(1) the terminal control number of the terminal or
physical address of the terminal or bulk plant from which the motor
fuel was received;
(2) the name [and license number] of the purchaser;
(3) the date the motor fuel was loaded;
(4) the net gallons loaded, or the gross gallons
loaded if the fuel was purchased from a bulk plant;
(5) the destination state of the motor fuel, as
represented by the purchaser of the motor fuel or the purchaser's
agent; and
(6) a description of the product being transported.
(h) This section does not apply to motor fuel that is
delivered into the fuel supply tank of a motor vehicle.
SECTION 9. Subsections (a), (b), (d), and (e), Section
162.016, Tax Code, are amended to read as follows:
(a) A person may not import motor fuel to a destination in
this state or export motor fuel to a destination outside this state
by any means unless the person possesses a shipping document for
that fuel [created by the terminal or bulk plant at which the fuel
was received]. The shipping document must include:
(1) the name and physical address of the terminal or
bulk plant from which the motor fuel was received for import or
export;
(2) the name [and federal employer identification
number, or the social security number if the employer
identification number is not available,] of the carrier
transporting the motor fuel;
(3) the date the motor fuel was loaded;
(4) the type of motor fuel;
(5) the number of gallons:
(A) in temperature-adjusted gallons if purchased
from a terminal for export or import; or
(B) in temperature-adjusted gallons or in gross
gallons if purchased from a bulk plant;
(6) the destination of the motor fuel as represented
by the purchaser of the motor fuel and the number of gallons of the
fuel to be delivered, if delivery is to only one state;
(7) the name[, federal employer identification
number, license number,] and physical address of the purchaser of
the motor fuel;
(8) the name of the person responsible for paying the
tax imposed by this chapter, as given to the terminal by the
purchaser if different from the licensed supplier or distributor;
[and]
(9) the destination state of each portion of a split
load of motor fuel if the motor fuel is to be delivered to more than
one state; and
(10) any other information that, in the opinion of the
comptroller, is necessary for the proper administration of this
chapter.
(b) The [terminal or bulk plant shall provide the] shipping
documents shall be provided to the importer or exporter.
(d) A seller, transporter, or receiver of [terminal, a bulk
plant, the carrier, the licensed distributor or supplier, and the
person that received the] motor fuel shall:
(1) retain a copy of the shipping document until at
least the fourth anniversary of the date the fuel is received; and
(2) provide a copy of the document to the comptroller
or any law enforcement officer not later than the 10th working day
after the date a request for the copy is received.
(e) An importer or exporter shall keep in the person's
possession the shipping document [issued by the terminal or bulk
plant] when transporting motor fuel imported into this state or for
export from this state. The importer or exporter shall show the
document to the comptroller or a peace officer on request. The
comptroller may delegate authority to inspect the document to other
governmental agencies. The importer or exporter shall provide a
copy of the shipping document to the person that receives the fuel
when it is delivered.
SECTION 10. Subsections (a) through (e), Section 162.101,
Tax Code, are amended to read as follows:
(a) A tax is imposed on the removal of gasoline from the
terminal using the terminal rack, other than by bulk transfer. The
supplier or permissive supplier is liable for and shall collect the
tax imposed by this subchapter from the person who orders the
withdrawal at the terminal rack.
(b) A tax is imposed at the time gasoline is imported into
this state, other than by a bulk transfer, for delivery to a
destination in this state. The supplier or permissive supplier is
liable for and shall collect the tax imposed by this subchapter from
the person who imports the gasoline into this state. If the seller
is not a supplier or permissive supplier, then the person who
imports the gasoline into this state is liable for and shall pay the
tax.
(c) A tax is imposed on the removal [sale or transfer] of
gasoline from [in] the bulk transfer/terminal system in this state
[by a supplier to a person who does not hold a supplier's license].
The supplier is liable for and shall collect the tax imposed by this
subchapter from the person who orders the removal from [sale or
transfer in] the bulk transfer terminal system.
(d) A tax is imposed on gasoline brought into this state in a
motor fuel supply tank or tanks of a motor vehicle operated by a
person required to be licensed as an interstate trucker. The
interstate trucker is liable for and shall pay the tax.
(e) A tax is imposed on the blending of gasoline at the point
gasoline blended fuel is made in this state outside the bulk
transfer/terminal system. The blender is liable for and shall pay
the tax. The number of gallons of gasoline blended fuel on which
the tax is imposed is equal to the difference between the number of
gallons of blended fuel made and the number of gallons of previously
taxed gasoline used to make the blended fuel.
SECTION 11. Subchapter B, Chapter 162, Tax Code, is amended
by adding Section 162.1025 to read as follows:
Sec. 162.1025. SEPARATE STATEMENT OF TAX COLLECTED FROM
PURCHASER. (a) In each subsequent sale of gasoline on which the
tax has been paid, the tax imposed by this subchapter shall be
collected from the purchaser so that the tax is paid ultimately by
the person who uses the gasoline. Gasoline is considered to be used
when it is delivered into a fuel supply tank.
(b) The tax imposed by this subchapter must be stated
separately from the sales price of gasoline and identified as
gasoline tax on the invoice or receipt issued to a purchaser.
Backup gasoline tax may be identified as gasoline tax. The tax must
be separately stated and identified in the same manner on a shipping
document, if the shipping document includes the sales price of the
gasoline.
(c) Except as provided by Subsection (d), the sales price of
gasoline stated on an invoice, receipt, or shipping document is
presumed to be exclusive of the tax imposed by this subchapter. The
seller or purchaser may overcome the presumption by using the
seller's records to show that the tax imposed by this subchapter was
included in the sales price.
(d) Subsection (b) does not apply to a sale of gasoline by a
licensed dealer to a person who delivers the gasoline at the
dealer's place of business into a fuel supply tank or into a
container having a capacity of not more than 10 gallons.
SECTION 12. Subsections (a) and (d), Section 162.103, Tax
Code, are amended to read as follows:
(a) A backup tax is imposed at the rate prescribed by
Section 162.102 on:
(1) a person who obtains a refund of tax on gasoline by
claiming the gasoline was used for an off-highway purpose, but
actually uses the gasoline to operate a motor vehicle on a public
highway;
(2) a person who operates a motor vehicle on a public
highway using gasoline on which tax has not been paid; [and]
(3) a person who sells to the ultimate consumer
gasoline on which tax has not been paid and who knew or had reason to
know that the gasoline would be used for a taxable purpose; and
(4) a person, other than a person exempted under
Section 162.104, who acquires gasoline on which tax has not been
paid from any source in this state.
(d) A person who sells gasoline in this state, other than by
a bulk transfer, on which tax has not been paid for any purpose
other than a purpose exempt under Section 162.104 shall at the time
of sale collect the tax from the purchaser or recipient of gasoline
in addition to the selling price and is liable to this state for the
taxes imposed [collected at the time and] in the manner provided by
this chapter.
SECTION 13. Subsections (b) and (c), Section 162.112, Tax
Code, are amended to read as follows:
(b) A licensed supplier, [or] permissive supplier, or
distributor who sells gasoline tax-free to a person whose
supplier's, [or] permissive supplier's, or aviation fuel dealer's
license has been canceled or revoked under this chapter is liable
for any tax due on gasoline sold after receiving notice of the
cancellation or revocation.
(c) The comptroller shall notify all license holders under
this chapter when a canceled or revoked license is subsequently
reinstated and include in the notice the effective date of the
reinstatement. Sales to the supplier, [or] permissive supplier, or
aviation fuel dealer after the effective date of the reinstatement
may be made tax-free.
SECTION 14. Section 162.115, Tax Code, is amended by adding
Subsection (n) to read as follows:
(n) In addition to the records specifically required by this
chapter, a license holder, a dealer, or a person required to hold a
license shall keep any other record required by the comptroller.
SECTION 15. Section 162.117, Tax Code, is amended to read as
follows:
Sec. 162.117. DUTIES OF SELLER OF GASOLINE [SUPPLIER OR
PERMISSIVE SUPPLIER]. (a) A seller [supplier or permissive
supplier] who receives or collects tax holds the amount received or
collected in trust for the benefit of this state and has a fiduciary
duty to remit to the comptroller the amount of tax received or
collected.
(b) A seller [supplier or permissive supplier] shall
furnish the purchaser with an invoice, bill of lading, or other
documentation as evidence of the number of gallons received by the
purchaser.
(c) A seller [supplier or permissive supplier] who receives
a payment of tax may not apply the payment of tax to a debt that the
person making the payment owes for gasoline purchased from the
seller [supplier or permissive supplier].
(d) A person required to receive or collect a tax under this
chapter is liable for and shall pay the tax in the manner provided
by this chapter.
SECTION 16. Section 162.122, Tax Code, is amended to read as
follows:
Sec. 162.122. INFORMATION REQUIRED ON EXPORTER'S RETURN AND
PAYMENT OF TAX ON EXPORTS. The monthly return and supplements of an
exporter shall contain for the period covered by the return:
(1) the number of net gallons of gasoline acquired
from a supplier and exported during the month, including supplier
name, terminal control number, and product code;
(2) the number of net gallons of gasoline acquired
from a bulk plant and exported during the month, including bulk
plant name and product code;
(3) the number of net gallons of gasoline acquired
from a source other than a supplier or bulk plant and exported
during the month, including the name of the source from which the
gasoline was acquired and the name and address of the person
receiving the gasoline;
(4) the destination state of the gasoline exported
during the month; and
(5) [(4)] any other information required by the
comptroller.
SECTION 17. Section 162.125, Tax Code, is amended by adding
Subsection (j) to read as follows:
(j) A license holder may take a credit on a return for the
tax included in the retail purchase price of gasoline for the period
in which the purchase occurred when made by one of the following
purchasers, if the purchase was made by acceptance of a credit card
not issued by the license holder, the credit card issuer did not
collect the tax from the purchaser, and the license holder
reimbursed the credit card issuer for the amount of tax included in
the retail purchase price:
(1) the United States government for its exclusive
use;
(2) a public school district in this state for the
district's exclusive use;
(3) a commercial transportation company that provides
public school transportation services to a public school district
under Section 34.008, Education Code, for its exclusive use to
provide those services;
(4) a nonprofit electric cooperative corporation
organized under Chapter 161, Utilities Code; and
(5) a nonprofit telephone cooperative corporation
organized under Chapter 162, Utilities Code.
SECTION 18. Subsection (d), Section 162.128, Tax Code, is
amended to read as follows:
(d) A supplier, [or] permissive supplier, distributor,
importer, exporter, or blender that determines taxes were
erroneously reported and remitted or that paid more taxes than were
due this state because of a mistake of fact or law may take a credit
on the monthly tax report on which the error has occurred and tax
payment made to the comptroller. The credit must be taken before
the expiration of the applicable period of limitation as provided
by Chapter 111.
SECTION 19. Subsections (a) through (e), Section 162.201,
Tax Code, are amended to read as follows:
(a) A tax is imposed on the removal of diesel fuel from the
terminal using the terminal rack other than by bulk transfer. The
supplier or permissive supplier is liable for and shall collect the
tax imposed by this subchapter from the person who orders the
withdrawal at the terminal rack.
(b) A tax is imposed at the time diesel fuel is imported into
this state, other than by a bulk transfer, for delivery to a
destination in this state. The supplier or permissive supplier is
liable for and shall collect the tax imposed by this subchapter from
the person who imports the diesel fuel into this state. If the
seller is not a supplier or permissive supplier, the person who
imports the diesel fuel into this state is liable for and shall pay
the tax.
(c) A tax is imposed on the removal [sale or transfer] of
diesel fuel from [in] the bulk transfer/terminal system in this
state [by a supplier to a person who does not hold a supplier's
license]. The supplier is liable for and shall collect the tax
imposed by this subchapter from the person who orders the removal
from [sale or transfer in] the bulk transfer/terminal system.
(d) A tax is imposed on diesel fuel brought into this state
in the motor fuel supply tank or tanks of a motor vehicle operated
by a person required to be licensed as an interstate trucker. The
interstate trucker is liable for and shall pay the tax.
(e) A tax is imposed on the blending of diesel fuel at the
point blended diesel fuel is made in this state outside the bulk
transfer/terminal system. The blender is liable for and shall pay
the tax. The number of gallons of blended diesel fuel on which the
tax is imposed is equal to the difference between the number of
gallons of blended fuel made and the number of gallons of previously
taxed diesel fuel used to make the blended fuel.
SECTION 20. Subchapter C, Chapter 162, Tax Code, is amended
by adding Section 162.2025 to read as follows:
Sec. 162.2025. SEPARATE STATEMENT OF TAX COLLECTED FROM
PURCHASER. (a) In each subsequent sale of diesel fuel on which the
tax has been paid, the tax imposed by this subchapter shall be
collected from the purchaser so that the tax is paid ultimately by
the person who uses the diesel fuel. Diesel fuel is considered to
be used when it is delivered into a fuel supply tank.
(b) The tax imposed by this subchapter must be stated
separately from the sales price of diesel fuel and identified as
diesel fuel tax on the invoice or receipt issued to a purchaser.
Backup diesel fuel tax may be identified as diesel fuel tax. The
tax must be separately stated and identified in the same manner on a
shipping document, if the shipping document includes the sales
price of the diesel fuel.
(c) Except as provided by Subsection (d), the sales price of
diesel fuel stated on an invoice, receipt, or shipping document is
presumed to be exclusive of the tax imposed by this subchapter. The
seller or purchaser may overcome the presumption by using the
seller's records to show that the tax imposed by this subchapter was
included in the sales price.
(d) Subsection (b) does not apply to a sale of diesel fuel by
a licensed dealer to a person who delivers the diesel fuel at the
dealer's place of business into a fuel supply tank or into a
container having a capacity of not more than 10 gallons.
SECTION 21. Subsections (a) and (d), Section 162.203, Tax
Code, are amended to read as follows:
(a) A backup tax is imposed at the rate prescribed by
Section 162.202 on:
(1) a person who obtains a refund of tax on diesel fuel
by claiming the diesel fuel was used for an off-highway purpose, but
actually uses the diesel fuel to operate a motor vehicle on a public
highway;
(2) a person who operates a motor vehicle on a public
highway using diesel fuel on which tax has not been paid; [and]
(3) a person who sells to the ultimate consumer diesel
fuel on which a tax has not been paid and who knew or had reason to
know that the diesel fuel would be used for a taxable purpose; and
(4) a person, other than a person exempted under
Section 162.204, who acquires diesel fuel on which tax has not been
paid from any source in this state.
(d) A person who sells diesel fuel in this state, other than
by a bulk transfer, on which tax has not been paid for any purpose
other than a purpose exempt under Section 162.204 shall at the time
of sale collect the tax from the purchaser or recipient of diesel
fuel in addition to the selling price and is liable to this state
for the taxes imposed [collected at the time and] in the manner
provided by this chapter.
SECTION 22. Subsection (b), Section 162.205, Tax Code, is
amended to read as follows:
(b) A person must obtain a license as a dyed diesel fuel
bonded user to purchase dyed diesel fuel in amounts that exceed the
limitations prescribed by Section 162.206(c). This subsection does
not affect the right of a purchaser to purchase not more than the
number of [10,000] gallons of dyed diesel fuel prescribed by
Section 162.206(c) each month for the purchaser's own use using a
signed statement [under Section 162.206].
SECTION 23. Section 162.206, Tax Code, is amended by
amending Subsections (c), (d), and (j) and adding Subsections
(c-1), (g-1), and (k) to read as follows:
(c) A person may not make a tax-free purchase and a licensed
supplier or distributor may not make a tax-free sale to a purchaser
of any dyed diesel fuel under this section using a signed statement
for the first sale or purchase and for any subsequent sale or
purchase[:
[(1) for the purchase or the sale of more than 7,400
gallons of dyed diesel fuel in a single delivery; or
[(2)] in a calendar month for [in which the person has
previously purchased from all sources or in which the licensed
supplier has previously sold to that purchaser] more than:
(1) [(A)] 10,000 gallons of dyed diesel fuel;
(2) [(B)] 25,000 gallons of dyed diesel fuel if the
purchaser stipulates in the signed statement that all of the fuel
will be consumed by the purchaser in the original production of, or
to increase the production of, oil or gas and furnishes the licensed
supplier or distributor with a letter of exception issued by the
comptroller; or
(3) [(C)] 25,000 gallons of dyed diesel fuel if the
purchaser stipulates in the signed statement that all of the fuel
will be consumed by the purchaser in agricultural off-highway
equipment.
(c-1) The monthly limitations prescribed by Subsection (c)
apply regardless of whether the dyed diesel fuel is purchased in a
single transaction during that month or in multiple transactions
during that month.
(d) Any gallons purchased or sold in excess of the
limitations prescribed by Subsection (c) constitute a taxable
purchase or sale. [The purchaser paying the tax on dyed diesel fuel
in excess of the limitations prescribed by Subsection (c) may claim
a refund of the tax paid on any dyed diesel fuel used for nonhighway
purposes under Section 162.227.] A purchaser that exceeds the
limitations prescribed by Subsection (c) shall be required to
obtain a dyed diesel fuel bonded user license.
(g-1) For purposes of this section, the purchaser is
considered to have temporarily furnished the signed statement to
the licensed supplier or distributor if the supplier or distributor
verifies that the purchaser has an end user number issued by the
comptroller. The licensed supplier or distributor shall use the
comptroller's Internet website or other materials provided or
produced by the comptroller to verify this information until the
purchaser provides to the supplier or distributor a completed
signed statement.
(j) A taxable use of any part of the dyed diesel fuel
purchased under a signed statement shall, in addition to
application of any criminal penalty, forfeit the right of the
person to purchase dyed diesel fuel tax-free for a period of one
year from the date of the offense. Any tax, interest, and penalty
found to be due through false or erroneous execution or continuance
of a promissory statement by the purchaser, if assessed to the
licensed supplier or distributor, is a debt of the purchaser to the
licensed supplier or distributor until paid and is recoverable at
law in the same manner as the purchase price of the fuel. [The
person may, however, claim a refund of the tax paid on any dyed
diesel fuel used for nonhighway purposes under Section 162.227.]
(k) Properly completed signed statements should be in the
possession of the licensed supplier or distributor at the time the
sale of dyed diesel fuel occurs. If the licensed supplier or
distributor is not in possession of the signed statements within 60
days after the date written notice requiring possession of them is
given to the licensed supplier or distributor by the comptroller,
exempt sales claimed by the licensed supplier or distributor that
require delivery of the signed statements shall be disallowed. If
the licensed supplier or distributor delivers the signed statements
to the comptroller within the 60-day period, the comptroller may
verify the reason or basis for the signed statements before
allowing the exempt sales. An exempt sale may not be granted on the
basis of signed statements delivered to the comptroller after the
60-day period.
SECTION 24. Subsections (b) and (c), Section 162.213, Tax
Code, are amended to read as follows:
(b) A licensed supplier or permissive supplier who sells
diesel fuel tax-free to a supplier, [or] permissive supplier, or
aviation fuel dealer whose license has been canceled or revoked
under this chapter, or who sells dyed diesel fuel to a distributor
or dyed diesel fuel bonded user whose license has been canceled or
revoked under this chapter, is liable for any tax due on diesel fuel
sold after receiving notice of the cancellation or revocation.
(c) The comptroller shall notify all license holders under
this chapter when a canceled or revoked license is subsequently
reinstated and include in the notice the effective date of the
reinstatement. Sales to a supplier, permissive supplier,
distributor, aviation fuel dealer, or dyed diesel fuel bonded user
after the effective date of the reinstatement may be made tax-free.
SECTION 25. Section 162.216, Tax Code, is amended by adding
Subsection (o) to read as follows:
(o) In addition to the records specifically required by this
chapter, a license holder, a dealer, or a person required to hold a
license shall keep any other record required by the comptroller.
SECTION 26. Section 162.218, Tax Code, is amended to read as
follows:
Sec. 162.218. DUTIES OF SELLER OF DIESEL FUEL [SUPPLIER OR
PERMISSIVE SUPPLIER]. (a) A seller [supplier or permissive
supplier] who receives or collects tax holds the amount received or
collected in trust for the benefit of this state and has a fiduciary
duty to remit to the comptroller the amount of tax received or
collected.
(b) A seller [supplier or permissive supplier] shall
furnish the purchaser with an invoice, bill of lading, or other
documentation as evidence of the number of gallons received by the
purchaser.
(c) A seller [supplier or permissive supplier] who receives
a payment of tax may not apply the payment of tax to a debt that the
person making the payment owes for diesel fuel purchased from the
seller [supplier or permissive supplier].
(d) A person required to receive or collect a tax under this
chapter is liable for and shall pay the tax in the manner provided
by this chapter.
SECTION 27. Section 162.223, Tax Code, is amended to read as
follows:
Sec. 162.223. INFORMATION REQUIRED ON EXPORTER'S RETURN AND
PAYMENT OF TAX ON IMPORTS. The monthly return and supplements of an
exporter shall contain for the period covered by the return:
(1) the number of net gallons of diesel fuel acquired
from a supplier and exported during the month, including supplier
name, terminal control number, and product code;
(2) the number of net gallons of diesel fuel acquired
from a bulk plant and exported during the month, including bulk
plant name and product code;
(3) the number of net gallons of diesel fuel acquired
from a source other than a supplier or bulk plant and exported
during the month, including the name of the source from which the
diesel fuel was acquired and the name and address of the person
receiving the diesel fuel;
(4) the destination state of the diesel fuel exported
during the month; and
(5) [(4)] any other information the comptroller
requires.
SECTION 28. Section 162.227, Tax Code, is amended by adding
Subsection (j) to read as follows:
(j) A license holder may take a credit on a return for the
tax included in the retail purchase price of diesel fuel for the
period in which the purchase occurred when made by one of the
following purchasers, if the purchase was made by acceptance of a
credit card not issued by the license holder, the credit card issuer
did not collect the tax from the purchaser, and the license holder
reimbursed the credit card issuer for the amount of tax included in
the retail purchase price:
(1) the United States government for its exclusive
use;
(2) a public school district in this state for the
district's exclusive use;
(3) a commercial transportation company that provides
public school transportation services to a public school district
under Section 34.008, Education Code, for its exclusive use to
provide those services;
(4) a nonprofit electric cooperative corporation
organized under Chapter 161, Utilities Code; and
(5) a nonprofit telephone cooperative corporation
organized under Chapter 162, Utilities Code.
SECTION 29. Subsection (d), Section 162.230, Tax Code, is
amended to read as follows:
(d) A supplier, [or] permissive supplier, distributor,
importer, exporter, or blender that determines taxes were
erroneously reported and remitted or that paid more taxes than were
due to this state because of a mistake of fact or law may take a
credit on the monthly tax report on which the error has occurred and
tax payment made to the comptroller. The credit must be taken
before the expiration of the applicable period of limitation as
provided by Chapter 111.
SECTION 30. Subsection (a), Section 162.308, Tax Code, is
amended to read as follows:
(a) A licensed dealer or a person required to hold a
dealer's license who makes a sale or delivery of liquefied gas into
a fuel supply tank of a motor vehicle on which the tax is required to
be collected is liable to this state for the tax imposed and shall
report and pay the tax in the manner required by this subchapter.
SECTION 31. Subsections (a) and (c), Section 162.309, Tax
Code, are amended to read as follows:
(a) A dealer or a person required to hold a dealer's license
shall keep for four years, open to inspection at all times by the
comptroller and the attorney general, a complete record of all
liquefied gas sold or delivered for taxable purposes.
(c) Each taxable sale or delivery by a dealer or a person
required to hold a dealer's license of liquefied gas into the fuel
supply tanks of a motor vehicle, including deliveries by interstate
truckers from bulk storage, shall be covered by an invoice. The
invoice must be printed and contain:
(1) the preprinted or stamped name and address of the
licensed dealer or interstate trucker;
(2) the date of the sale or delivery;
(3) the number of gallons sold or delivered;
(4) the mileage recorded on the odometer;
(5) the state and state highway license number;
(6) the signature of the driver of the motor vehicle;
and
(7) the amount of tax paid or accounted for stated
separately from the selling price.
SECTION 32. Subsections (a) and (d), Section 162.402, Tax
Code, are amended to read as follows:
(a) A person forfeits to the state a civil penalty of not
less than $25 and not more than $200 if the person:
(1) refuses to stop and permit the inspection and
examination of a motor vehicle transporting or using motor fuel on
demand of a peace officer or the comptroller;
(2) operates a motor vehicle in this state without a
valid interstate trucker's license or a trip permit when the person
is required to hold one of those licenses or permits;
(3) operates a liquefied gas-propelled motor vehicle
that is required to be licensed in this state, including motor
vehicles equipped with dual carburetion, and does not display a
current liquefied gas tax decal or multistate fuels tax agreement
decal;
(4) makes a tax-free sale or delivery of liquefied gas
into the fuel supply tank of a motor vehicle that does not display a
current Texas liquefied gas tax decal;
(5) makes a taxable sale or delivery of liquefied gas
without holding a valid dealer's license;
(6) makes a tax-free sale or delivery of liquefied gas
into the fuel supply tank of a motor vehicle bearing out-of-state
license plates;
(7) makes a delivery of liquefied gas into the fuel
supply tank of a motor vehicle bearing Texas license plates and no
Texas liquefied gas tax decal, unless licensed under a multistate
fuels tax agreement;
(8) transports gasoline or diesel fuel in any cargo
tank that has a connection by pipe, tube, valve, or otherwise with
the fuel injector or carburetor of, or with the fuel supply tank
feeding the fuel injector or carburetor of, the motor vehicle
transporting the product;
(9) sells or delivers gasoline or diesel fuel from any
fuel supply tank connected with the fuel injector or carburetor of a
motor vehicle;
(10) owns or operates a motor vehicle for which
reports or mileage records are required by this chapter without an
operating odometer or other device in good working condition to
record accurately the miles traveled;
(11) furnishes to a licensed supplier or distributor a
signed statement for purchasing diesel fuel tax-free and then uses
the tax-free diesel fuel to operate a diesel-powered motor vehicle
on a public highway;
(12) fails or refuses to comply with or violates a
provision of this chapter;
(13) fails or refuses to comply with or violates a
comptroller's rule for administering or enforcing this chapter;
(14) is an importer who does not obtain an import
verification number when required by this chapter; or
(15) purchases motor fuel for export, on which the tax
imposed by this chapter has not been paid, and subsequently diverts
or causes the motor fuel to be diverted to a destination in this
state or any other state or country other than the originally
designated state or country without first obtaining a diversion
number.
(d) A person [operating a bulk plant or terminal] who issues
a shipping document that does not conform with the requirements of
Section 162.016(a) is liable to this state for a civil penalty of
$2,000 or five times the amount of the unpaid tax, whichever is
greater, for each occurrence.
SECTION 33. Section 162.403, Tax Code, is amended to read as
follows:
Sec. 162.403. CRIMINAL OFFENSES. Except as provided by
Section 162.404, a person commits an offense if the person:
(1) refuses to stop and permit the inspection and
examination of a motor vehicle transporting or using motor fuel on
the demand of a peace officer or the comptroller;
(2) is required to hold a valid trip permit or
interstate trucker's license, but operates a motor vehicle in this
state without a valid trip permit or interstate trucker's license;
(3) operates a liquefied gas-propelled motor vehicle
that is required to be licensed in this state, including a motor
vehicle equipped with dual carburetion, and does not display a
current liquefied gas tax decal or multistate fuels tax agreement
decal;
(4) transports gasoline or diesel fuel in any cargo
tank that has a connection by pipe, tube, valve, or otherwise with
the fuel injector or carburetor or with the fuel supply tank feeding
the fuel injector or carburetor of the motor vehicle transporting
the product;
(5) sells or delivers gasoline or diesel fuel from a
fuel supply tank that is connected with the fuel injector or
carburetor of a motor vehicle;
(6) owns or operates a motor vehicle for which reports
or mileage records are required by this chapter without an
operating odometer or other device in good working condition to
record accurately the miles traveled;
(7) sells or delivers dyed diesel fuel for the
operation of a motor vehicle on a public highway;
(8) uses dyed diesel fuel for the operation of a motor
vehicle on a public highway except as allowed under Section
162.235;
(9) makes a tax-free sale or delivery of liquefied gas
into the fuel supply tank of a motor vehicle that does not display a
current Texas liquefied gas tax decal;
(10) makes a sale or delivery of liquefied gas on which
the person knows the tax is required to be collected, if at the time
the sale is made the person does not hold a valid dealer's license;
(11) makes a tax-free sale or delivery of liquefied
gas into the fuel supply tank of a motor vehicle bearing
out-of-state license plates;
(12) makes a delivery of liquefied gas into the fuel
supply tank of a motor vehicle bearing Texas license plates and no
Texas liquefied gas tax decal, unless licensed under a multistate
fuels tax agreement;
(13) refuses to permit the comptroller or the attorney
general to inspect, examine, or audit a book or record required to
be kept by a license holder, other user, or any person required to
hold a license under this chapter;
(14) refuses to permit the comptroller or the attorney
general to inspect or examine any plant, equipment, materials, or
premises where motor fuel is produced, processed, blended, stored,
sold, delivered, or used;
(15) refuses to permit the comptroller, the attorney
general, an employee of either of those officials, a peace officer,
an employee of the Texas Commission on Environmental Quality, or an
employee of the Department of Agriculture to measure or gauge the
contents of or take samples from a storage tank or container on
premises where motor fuel is produced, processed, blended, stored,
sold, delivered, or used;
(16) is a license holder, a person required to be
licensed, or another user and fails or refuses to make or deliver to
the comptroller a report required by this chapter to be made and
delivered to the comptroller;
(17) is an importer who does not obtain an import
verification number when required by this chapter;
(18) purchases motor fuel for export, on which the tax
imposed by this chapter has not been paid, and subsequently diverts
or causes the motor fuel to be diverted to a destination in this
state or any other state or country other than the originally
designated state or country without first obtaining a diversion
number;
(19) conceals motor fuel with the intent of engaging
in any conduct proscribed by this chapter or refuses to make sales
of motor fuel on the volume-corrected basis prescribed by this
chapter;
(20) refuses, while transporting motor fuel, to stop
the motor vehicle the person is operating when called on to do so by
a person authorized to stop the motor vehicle;
(21) refuses to surrender a motor vehicle and cargo
for impoundment after being ordered to do so by a person authorized
to impound the motor vehicle and cargo;
(22) mutilates, destroys, or secretes a book or record
required by this chapter to be kept by a license holder, other user,
or person required to hold a license under this chapter;
(23) is a license holder, other user, or other person
required to hold a license under this chapter, or the agent or
employee of one of those persons, and makes a false entry or fails
to make an entry in the books and records required under this
chapter to be made by the person or fails to retain a document as
required by this chapter;
(24) transports in any manner motor fuel under a false
cargo manifest or shipping document, or transports in any manner
motor fuel to a location without delivering at the same time a
shipping document relating to that shipment;
(25) engages in a motor fuel transaction that requires
that the person have a license under this chapter without then and
there holding the required license;
(26) makes and delivers to the comptroller a report
required under this chapter to be made and delivered to the
comptroller, if the report contains false information;
(27) forges, falsifies, or alters an invoice or
shipping document prescribed by law;
(28) makes any statement, knowing said statement to be
false, in a claim for a tax refund filed with the comptroller;
(29) furnishes to a licensed supplier or distributor a
signed statement for purchasing diesel fuel tax-free and then uses
the tax-free diesel fuel to operate a diesel-powered motor vehicle
on a public highway;
(30) holds an aviation fuel dealer's license and makes
a taxable sale or use of any gasoline or diesel fuel;
(31) fails to remit any tax funds collected or
required to be collected by a license holder, another user, or any
other person required to hold a license under this chapter;
(32) makes a sale of dyed diesel fuel tax-free into a
storage facility of a person who:
(A) is not licensed as a distributor, as an
aviation fuel dealer, or as a dyed diesel fuel bonded user; or
(B) does not furnish to the licensed supplier or
distributor a signed statement prescribed in Section 162.206;
(33) makes a sale of gasoline tax-free to any person
who is not licensed as an aviation fuel dealer;
(34) [is a dealer who] purchases any motor fuel
tax-free when not authorized to make a tax-free purchase under this
chapter;
(35) [is a dealer who] purchases motor fuel with the
intent to evade any tax imposed by this chapter or [who] accepts a
delivery of motor fuel by any means and does not at the same time
accept or receive a shipping document relating to the delivery;
(36) transports motor fuel for which a cargo manifest
or shipping document is required to be carried without possessing
or exhibiting on demand by an officer authorized to make the demand
a cargo manifest or shipping document containing the information
required to be shown on the manifest or shipping document;
(37) imports, sells, uses, blends, distributes, or
stores motor fuel within this state on which the taxes imposed by
this chapter are owed but have not been first paid to or reported by
a license holder, another user, or any other person required to hold
a license under this chapter;
(38) blends products together to produce a blended
fuel that is offered for sale, sold, or used and that expands the
volume of the original product to evade paying applicable motor
fuel taxes; or
(39) evades or attempts to evade in any manner a tax
imposed on motor fuel by this chapter.
SECTION 34. Subsection (f), Section 162.405, Tax Code, is
amended to read as follows:
(f) Violations of three or more separate offenses under the
following sections [Sections 162.403(22) through (29)] committed
pursuant to one scheme or continuous course of conduct may be
considered as one offense and punished as a felony of the second
degree:
(1) Section 162.403(7);
(2) Sections 162.403(13) through (16); or
(3) Sections 162.403(22) through (29).
SECTION 35. The heading to Section 162.409, Tax Code, is
amended to read as follows:
Sec. 162.409. ISSUANCE OF BAD CHECK TO LICENSED
DISTRIBUTOR, [OR] LICENSED SUPPLIER, OR PERMISSIVE SUPPLIER.
SECTION 36. Subsections (a) and (d), Section 162.409, Tax
Code, are amended to read as follows:
(a) A person commits an offense if:
(1) the person issues or passes a check or similar
sight order for the payment of money knowing that the issuer does
not have sufficient funds in or on deposit with the bank or other
drawee for the payment in full of the check or order as well as all
other checks or orders outstanding at the time of issuance;
(2) the payee on the check or order is a licensed
distributor, [or] licensed supplier, or permissive supplier; and
(3) the payment is for an obligation or debt that
includes a tax under this chapter to be collected by the licensed
distributor, [or] licensed supplier, or permissive supplier.
(d) A person who makes payment on an obligation or debt that
includes a tax under this chapter and pays with an insufficient
funds check issued to a licensed distributor, [or] licensed
supplier, or permissive supplier may be held liable for a penalty
equal to the total amount of tax not paid to the licensed
distributor, [or] licensed supplier, or permissive supplier.
SECTION 37. Subchapter E, Chapter 162, Tax Code, is amended
by adding Section 162.410 to read as follows:
Sec. 162.410. ELECTION OF OFFENSES. If a violation of a
criminal offense provision of this chapter by a person constitutes
another offense under the laws of this state, the state may elect
the offense for which it will prosecute the person.
SECTION 38. Article 12.01, Code of Criminal Procedure, as
amended by Chapters 285 (H.B. 716), 593 (H.B. 8), 640 (H.B. 887),
and 841 (H.B. 959), Acts of the 80th Legislature, Regular Session,
2007, is reenacted and amended to read as follows:
Art. 12.01. FELONIES. Except as provided in Article 12.03,
felony indictments may be presented within these limits, and not
afterward:
(1) no limitation:
(A) murder and manslaughter;
(B) sexual assault under Section 22.011(a)(2),
Penal Code, or aggravated sexual assault under Section
22.021(a)(1)(B), Penal Code;
(C) sexual assault, if during the investigation
of the offense biological matter is collected and subjected to
forensic DNA testing and the testing results show that the matter
does not match the victim or any other person whose identity is
readily ascertained;
(D) continuous sexual abuse of young child or
children under Section 21.02, Penal Code;
(E) indecency with a child under Section 21.11,
Penal Code; or
(F) an offense involving leaving the scene of an
accident under Section 550.021, Transportation Code, if the
accident resulted in the death of a person;
(2) ten years from the date of the commission of the
offense:
(A) theft of any estate, real, personal or mixed,
by an executor, administrator, guardian or trustee, with intent to
defraud any creditor, heir, legatee, ward, distributee,
beneficiary or settlor of a trust interested in such estate;
(B) theft by a public servant of government
property over which he exercises control in his official capacity;
(C) forgery or the uttering, using or passing of
forged instruments;
(D) injury to an elderly or disabled individual
punishable as a felony of the first degree under Section 22.04,
Penal Code;
(E) sexual assault, except as provided by
Subdivision (1) [or (5)]; or
(F) arson;
(3) seven years from the date of the commission of the
offense:
(A) misapplication of fiduciary property or
property of a financial institution;
(B) securing execution of document by deception;
(C) a felony violation under Chapter 162
[Sections 162.403(22)-(39)], Tax Code;
(D) false statement to obtain property or credit
under Section 32.32, Penal Code;
(E) money laundering;
(F) [(D)] credit card or debit card abuse under
Section 32.31, Penal Code; or
(G) [(F)] fraudulent use or possession of
identifying information under Section 32.51, Penal Code;
(4) five years from the date of the commission of the
offense:
(A) theft or robbery;
(B) except as provided by Subdivision (5),
kidnapping or burglary;
(C) injury to an elderly or disabled individual
that is not punishable as a felony of the first degree under Section
22.04, Penal Code;
(D) abandoning or endangering a child; or
(E) insurance fraud;
(5) if the investigation of the offense shows that the
victim is younger than 17 years of age at the time the offense is
committed, 20 years from the 18th birthday of the victim of one of
the following offenses:
(A) sexual performance by a child under Section
43.25, Penal Code;
(B) aggravated kidnapping under Section
20.04(a)(4), Penal Code, if the defendant committed the offense
with the intent to violate or abuse the victim sexually; or
(C) burglary under Section 30.02, Penal Code, if
the offense is punishable under Subsection (d) of that section and
the defendant committed the offense with the intent to commit an
offense described by Subdivision (1)(B) or (D) of this article or
Paragraph (B) of this subdivision; [or]
(6) [(5)] ten years from the 18th birthday of the
victim of the offense:
[(A) indecency with a child under Section
21.11(a)(1) or (2), Penal Code;
[(B) except as provided by Subdivision (1),
sexual assault under Section 22.011(a)(2), Penal Code, or
aggravated sexual assault under Section 22.021(a)(1)(B), Penal
Code; or
[(C)] injury to a child under Section 22.04,
Penal Code; or
(7) [(6)] three years from the date of the commission
of the offense: all other felonies.
SECTION 39. Subsections (b) and (d), Section 20.002,
Transportation Code, are amended to read as follows:
(b) This section applies to a person, other than a political
subdivision, who:
(1) owns, controls, operates, or manages a commercial
motor vehicle; and
(2) is exempt from the state diesel fuel tax under
Section 162.204 [153.203], Tax Code.
(d) The fee imposed by this section is equal to 25 percent of
the diesel fuel tax rate imposed under Section 162.202
[153.202(b)], Tax Code.
SECTION 40. Subsection (o), Section 26.3574, Water Code, is
amended to read as follows:
(o) Chapters 101 and 111-113, and Sections 162.005
[153.006], 162.007 [153.007], and 162.111(b)-(k) [153.116(b)-(j)],
Tax Code, apply to the administration, payment, collection, and
enforcement of fees under this section in the same manner that those
chapters apply to the administration, payment, collection, and
enforcement of taxes under Title 2, Tax Code.
SECTION 41. Section 162.017, Tax Code, is repealed.
SECTION 42. (a) The change in law made by this Act applies
only to an offense committed on or after the effective date of this
Act. For purposes of this section, an offense is committed before
the effective date of this Act if any element of the offense occurs
before that date.
(b) An offense committed before the effective date of this
Act is governed by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
SECTION 43. The change in law made by this Act does not
affect tax liability accruing before the effective date of this
Act. That liability continues in effect as if this Act had not been
enacted, and the former law is continued in effect for the
collection of taxes due and for civil and criminal enforcement of
the liability for those taxes.
SECTION 44. This Act takes effect September 1, 2009.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1495 passed the Senate on
April 9, 2009, by the following vote: Yeas 31, Nays 0;
May 15, 2009, Senate refused to concur in House amendments and
requested appointment of Conference Committee; May 20, 2009, House
granted request of the Senate; June 1, 2009, Senate adopted
Conference Committee Report by the following vote: Yeas 31,
Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1495 passed the House, with
amendments, on May 7, 2009, by the following vote: Yeas 136,
Nays 0, one present not voting; May 20, 2009, House granted request
of the Senate for appointment of Conference Committee;
May 31, 2009, House adopted Conference Committee Report by the
following vote: Yeas 145, Nays 0, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor