34 TAC §3.151
The Comptroller of Public Accounts proposes an amendment
to §3.151, concerning imposition, collection, and bond and other security
of the fee. The 77th Legislature, 2001, in House Bills 2687 and 2912, amended
the Water Code, Chapter 26, to reduce the petroleum products delivery fee
by 33%.
Subsection (c) is being amended to implement the reduced fee rate schedule
for the fiscal years 2002 and 2003, effective September 1, 2001.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the amendment will be in effect there will be no significant
revenue impact on the state or local government.
Mr. LeBas also has determined that for each year of the first five years
the amendment is in effect the public benefit anticipated as a result of adopting
the amendment will be in providing new information regarding tax responsibilities.
This amendment is adopted under the Tax Code, Title 2, and does not require
a statement of fiscal implications for small businesses. There is no significant
anticipated economic cost to individuals who are required to comply with the
proposed amendment.
Comments on the proposal may be submitted to Bryant K. Lomax, Manager,
Tax Policy Division, P.O. Box 13528, Austin, Texas 78711-3528.
This amendment is proposed under the Tax Code, §111.002,
which provides the comptroller with the authority to prescribe, adopt, and
enforce rules relating to the administration and enforcement of the provisions
of the Tax Code, Title 2.
The amendment implements the Water Code, §26.3574.
§3.151.Imposition, Collection, and Bonds or Other Security of the Fee.
(a)
The Texas Petroleum Products Delivery Fee is imposed, collected,
and paid to the state by operators of bulk facilities. The fee is assessed
when petroleum products are withdrawn from the bulk facility and delivered
into a cargo tank or barge or imported into this state in a cargo tank or
barge for delivery to another location for distribution or sale. The fee is
not assessed when the fuel is destined for delivery to another bulk facility,
an electrical generating plant, a common carrier railroad for its exclusive
use, or is to be exported from the state.
(b)
For the purposes of this section, withdrawals from a bulk
facility into a cargo tank or barge are not subject to the fee when the entire
withdrawal is delivered into the fuel supply tanks of vessels or boats.
(c)
The fee is collected by the operator of a bulk facility
from the person ordering the withdrawal. The fee is computed as follows:
(1)
$12.50
[
$18.75
] for each delivery
into a cargo tank or barge having a capacity of less than 2,500 gallons;
(2)
$25
[
$37.50
] for each delivery into
a cargo tank or barge having a capacity of 2,500 gallons or more but less
than 5,000 gallons;
(3)
$37.50
[
$56.25
] for each delivery
into a cargo tank or barge having a capacity of 5,000 gallons or more but
less than 8,000 gallons;
(4)
$50
[
$75
] for each delivery into
a cargo tank or barge having a capacity of 8,000 gallons or more but less
than 10,000 gallons; and
(5)
a
$25
[
$37.50
] fee for each increment
of 5,000 gallons or any part thereof delivered into a cargo tank or barge
having a capacity of 10,000 gallons or more.
(d)
In determining the amount of fee due for motor gasoline,
other alcohol blended fuels, and aviation gasoline, each net temperature corrected
withdrawal of 7,000 gallons or more but less than 10,000 gallons shall be
presumed to have been a delivery into a cargo tank having a capacity of 8,000
gallons or more but less than 10,000 gallons and the fee shall be collected
as provided by subsection (c)(4) of this section.
(e)
In determining the amount of fee due on all withdrawals
not covered by subsection (d) of this section, it shall be presumed that the
capacity of the cargo tank or barge is equal to the total net temperature
corrected quantity of product withdrawn.
(f)
For the purposes of this section, a bulk facility is a
refinery terminal or any other terminal or facility which receives petroleum
products by pipeline, rail, or barge, and delivers the products into a cargo
tank or barge.
(g)
For the purposes of this section, the operator of a bulk
facility is the person who first invoices petroleum products withdrawn from
the facility. An exchange statement is not considered an invoice.
(h)
For the purposes of this section, an electrical generating
facility is a plant operated for the primary purpose of generating electricity
for sale to consumers.
(i)
Persons exempt from the petroleum products delivery fee,
including persons operating barges who make withdrawals from a permitted bulk
facility for delivery into the fuel supply tanks of vessels or boats, shall
request in writing a letter of exemption from the comptroller. The letter
of exemption issued by the comptroller, or a copy, must be furnished to the
seller each time purchases exempt from the petroleum products delivery fee
are made.
(j)
If the person making the sale to the exempt purchaser does
not hold a petroleum products delivery fee permit, the purchaser must also
furnish to the seller a statement listing the date of purchase, number of
gallons purchased per delivery, and destination of the product. For the seller
to receive credit for exempt sales, this documentation must be presented to
the permitted bulk facility from which the product was purchased.
(k)
The amount of the petroleum products delivery fee must
be listed as a separate item on the invoice or cargo manifest issued by the
person holding a permit to collect the fee upon the withdrawal of product
from a bulk facility.
(l)
Only persons who hold a petroleum products delivery fee
permit may charge and collect the fee on the basis of the bracket system established
in this section. No other persons selling fuel may list the fee as a separate
item on invoices or manifest except:
(1)
when required to do so by another governmental agency;
or
(2)
when an amount is clearly identified as reimbursement.
An amount collected as reimbursement may not exceed the amount of fee actually
paid by the person issuing the manifest or invoice.
(m)
The comptroller may require a bulk facility operator to
post a bond or other security to protect the revenues of the state.
(n)
When determining the security required of a bulk facility
operator, the comptroller will take into consideration the amount of fee that
has or is expected to become due from the person, any past history of the
person as a distributor or supplier of fuel, and the necessity to protect
the state against the failure to pay the fee as it becomes due.
(o)
The comptroller may require a bond equal to two times the
highest amount of fees that will accrue during a reporting period. The minimum
bond is $30,000. The maximum bond is $600,000 unless the comptroller believes
there is undue risk of loss of fee revenues, in which event he may require
one or more bond or securities in a total amount exceeding $600,000.
(p)
If the comptroller determines that a bulk facility operator
has for four consecutive years continuously complied with the conditions of
the bond or other security on file, the operator is entitled on request to
have the comptroller return, refund, or release the bond or security. However,
if the comptroller determines that the revenues of the state would be jeopardized
by the return, refund, or release of the bond or security, the comptroller
may elect not to return, refund, or release the bond or security. The comptroller
may reimpose a requirement of a bond or other security if necessary to protect
the revenues of the state.
(q)
A bond must be a continuing instrument, must constitute
a new and separate obligation in the penal sum named in the bond for each
calendar year or portion of a year while the bond is in force, and must remain
in effect until the surety on the bond is released and discharged.
(r)
In lieu of filing a surety bond, an applicant for a permit
may substitute the following security:
(1)
cash in the form of United States currency in an amount
equal to the required bond, to be deposited in the suspense account of the
state treasury;
(2)
an assignment to the comptroller of a certificate of deposit
in any bank or savings and loan association in Texas that is a member of the
FDIC in an amount equal to the bond amount required; or
(3)
an irrevocable letter of credit to the comptroller from
any bank or savings and loan association in Texas that is a member of the
FDIC in an amount of credit at least equal to the bond amount required.
(s)
If the amount of an existing bond becomes insufficient
or a security becomes unsatisfactory or unacceptable, the comptroller may
require the filing of a new or of an additional bond or security.
(t)
No surety bond or other form of security may be released
until it is determined by examination or audit that no fee, penalty, or interest
liability exists. The cash or securities shall be released within 60 days
after the comptroller determines that no liability exists.
(u)
The comptroller may use the cash or certificate of deposit
security to satisfy a final determination of delinquent liability or a judgment
secured in any action by this state to recover fees, cost, penalties, and
interest found to be due this state by a person in whose behalf the cash or
certificate security was deposited.
(v)
A surety on a bond furnished by a permittee shall be released
and discharged from liability to the state accruing on the bond after the
expiration of 30 days after the date on which the surety files with the comptroller
a written request to be released and discharged. The request does not relieve,
release, or discharge the surety from a liability already accrued, or that
accrues before the expiration of the 30-day period. Promptly after receipt
of the request, the comptroller shall notify the permittee who furnished the
bond, and unless the permittee, before the expiration date of the existing
security, files with the comptroller a satisfactory new bond or other security,
the comptroller shall cancel the permit.
(w)
The comptroller shall notify immediately the issuer of
a letter of credit of a final determination of the bulk facility operator's
delinquent liability or a judgment secured in any action by this state to
recover fees, cost, penalties, and interest found to be due this state by
a bulk facility operator in whose behalf the letter of credit was issued.
A letter of credit accepted as security shall contain a statement that the
issuer agrees to respond to the comptroller's notice of liability with amounts
sufficient to satisfy the comptroller's delinquency claim against the bulk
facility operator.
(x)
An examination or audit may be requested to obtain release
of the security when the permit holder relinquishes the permit or desires
to substitute one form of security for an existing one.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 26, 2001.
TRD-200104321
Martin Cherry
Deputy General Counsel for Tax Policy and Agency Affairs
Comptroller of Public Accounts
Earliest possible date of adoption: September 9, 2001
For further information, please call: (512) 463-4062