Part 1.
COMPTROLLER OF PUBLIC ACCOUNTS
Chapter 3.
TAX ADMINISTRATION
Subchapter L. MOTOR FUEL TAX--PRIOR TO JANUARY 1, 2004
34 TAC §3.171
The Comptroller of Public Accounts proposes an amendment
to §3.171, concerning records required; information required. The amendment
incorporates legislative changes in House Bill 2458, 78th Legislature, 2003,
to provide for the repeal of Tax Code, Chapter 153, and to add Tax Code, Chapter
162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §§153.004, 153.018, 153.117,
153.219, and 153.309.
§3.171.Records Required; Information Required.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(1)
A distributor of gasoline or a supplier of diesel fuel,
as those terms are defined in Tax Code, §153.001, shall keep the shipping
document that relates to each receipt for distribution of gasoline or diesel
fuel, and shall also keep records that show the number of gallons of:
(A)
all gasoline or diesel fuel inventories on hand on the
first day of each month;
(B)
all gasoline or diesel fuel that the distributor or supplier
refined, compounded, or blended;
(C)
all gasoline or diesel fuel that the distributor or supplier
purchased or received, showing the name and location of the seller, the date
of each purchase or receipt, and the amount of motor fuels tax paid or if
no tax was paid, the basis for the nonpayment of the motor fuels tax;
(D)
all gasoline or diesel fuel that the distributor or supplier
sold, distributed, or used, showing the name and location of the purchaser,
the date of each sale, distribution, or use, and the amount of motor fuels
tax assessed, or if no tax was assessed, the basis for not assessing the motor
fuels tax;
(E)
all diesel fuel that the supplier sold tax free, separately
identifying sales of dyed and undyed fuel, showing the purchaser's aviation
fuel dealer permit number, dyed diesel fuel bonded user permit number, agricultural
bonded user permit number, or, when sold by signed statement, end user number
or agricultural user exemption number;
(F)
all gasoline and diesel fuel that the distributor or supplier
exported from Texas including the destination state or country for each load;
(G)
all gasoline and diesel fuel that the distributor or supplier
imported into Texas including the origin state or country for each load; and
(H)
all gasoline or diesel fuel that the distributor or supplier
lost by fire, theft, or accident;
(2)
A dealer, as that term is defined in the Tax Code, §153.001,
shall keep the shipping document that relates to each receipt or distribution
of gasoline or diesel fuel and shall also keep records that show the number
of gallons of:
(A)
all gasoline or diesel fuel inventories on hand on the
first day of each month;
(B)
all gasoline or diesel fuel that the dealer purchased or
received, showing the name and location of the seller, the date of each purchase
or receipt, the amount of motor fuels tax paid, or if no tax was paid, the
basis for the nonpayment of the motor fuels tax;
(C)
all gasoline that the dealer sold, distributed, or used,
showing the date of the sale, distribution, or use;
(D)
all diesel fuel that the dealer sold, distributed, or used
showing the date of the sale, distribution, or use and individual invoices
issued covering deliveries into fuel supply tanks of motor vehicles described
under the definition of "interstate trucker" in the Tax Code, §153.001,
in accordance with the Tax Code, §153.220; and
(E)
all gasoline or diesel fuel that the dealer lost by fire,
theft, or accident.
(3)
A permitted liquefied gas dealer must keep records showing
the number of gallons of:
(A)
all liquefied gas that the dealer sold or delivered for
taxable purposes; and
(B)
individual invoices that the dealer issued recording taxable
sales and deliveries in accordance with the Tax Code, §153.309.
(4)
An aviation fuel dealer, as that term is defined in the
Tax Code, §153.001, shall keep the shipping document relating to each
receipt or distribution of gasoline or diesel fuel, and shall also keep records
showing the number of gallons of:
(A)
all gasoline or diesel fuel inventories on hand on the
first day of each month;
(B)
all gasoline or diesel fuel that the dealer purchased or
received, showing the name and location of the seller, the date of each purchase
or receipt, the amount of motor fuels tax paid, or if no tax was paid, the
basis for the nonpayment of the motor fuels tax;
(C)
all gasoline or diesel fuel that the dealer sold, distributed,
or used in aircraft or aircraft servicing equipment, showing the name of the
purchaser or user, the date of each sale, distribution or use, and the registration
or "N" number of the airplane or a description or number of the aircraft servicing
equipment in which the gasoline or diesel fuel was used; and
(D)
all gasoline or diesel fuel that the dealer lost by fire,
theft, or accident.
(5)
An interstate trucker, as that term is defined in the Tax
Code, §153.001, shall keep records of:
(A)
the total miles that the interstate trucker traveled in
all states and countries by all vehicles traveling into or from Texas and
the total quantity of gasoline, diesel fuel, or liquefied gas consumed in
those vehicles; and
(B)
the total miles that the interstate trucker traveled in
Texas and the total quantity of gasoline, diesel fuel, or liquefied gas delivered
into the fuel supply tanks of motor vehicles and into storage facilities in
Texas.
(6)
A jobber, as that term is defined in the Tax Code, §153.001,
shall keep the shipping document relating to each receipt or distribution
of gasoline or diesel fuel, and shall also keep records that show the number
of gallons of:
(A)
all gasoline or diesel fuel inventories on hand on the
first day of each month;
(B)
all gasoline or diesel fuel that the jobber purchased or
received, showing the name and location of the seller, the date of each purchase
or receipt, and the amount of motor fuels tax paid;
(C)
all gasoline or diesel fuel that the jobber sold, distributed,
or used, showing the name and location of the purchaser, the date of each
sale, distribution, or use, and the amount of motor fuels tax assessed; and
(D)
all gasoline or diesel fuel that the jobber lost by fire,
theft, or accident.
(7)
A dyed diesel fuel bonded user, an agricultural bonded
user, or other user with nonhighway equipment who files a claim for refund
shall keep the shipping document that relates to each receipt of gasoline
or diesel fuel, and shall also keep records that show the number of gallons
of dyed diesel fuel and the number of gallons of undyed diesel fuel that are
in each of the following categories:
(A)
all diesel fuel inventories on hand on the first day of
each month;
(B)
all diesel fuel that the user purchased or received, showing
the name of the seller and the date of each purchase or receipt;
(C)
all diesel fuel that the user delivered into the fuel supply
tanks of motor vehicles;
(D)
all diesel fuel that the user used for other purposes,
showing the purpose for which used; and
(E)
all diesel fuel that the user lost by fire, theft, or accident.
(8)
A common or contract carrier that transport motor fuel
in Texas shall keep the shipping document that relates to each shipment of
gasoline or diesel fuel, and shall also keep records that show:
(A)
the date of transportation;
(B)
the name of the seller or consignor;
(C)
the name of the purchaser or consignee;
(D)
the means of transportation;
(E)
the quantity and kind of motor fuel that the carrier transported;
(F)
the destination state or country of motor fuel that the
carrier exported outside of Texas;
(G)
the origin state or country of motor fuel that the carrier
imported into Texas;
(H)
the import verification number when that number is required
by §3.187 of the title (relating to Documentation and Reporting of Imports
and Exports, Import Verification Number, Export Sales by Distributors and
Suppliers, and Diversion Number); and
(I)
the diversion number when that number is required by §3.187
of this title;
(9)
A person who claims a deduction or exclusion authorized
by law must keep records that substantiate the claim When records regarding
the amount and applicability of any deductions or exclusions from the motor
fuels tax are insufficient, the comptroller may estimate deductions or exclusions
based on any records available or may disallow all deductions and exclusions.
No exclusions for loss by fire, accident, or theft will be allowed unless
accompanied by fire department, environmental regulatory agency, or police
department reports that verify the fire, accident, or theft.
(c)
[
(1)
If any person who is required by this section to keep accurate
records of receipts and purchases of gasoline or diesel fuel, fails to keep
those records, the comptroller may estimate the tax liability based on any
information available including, but not limited to, the records of the person's
suppliers or distributors.
(2)
If any person who is required by this section to keep accurate
records of sales, distributions, or uses of gasoline or diesel fuel, fails
to keep those records, the comptroller may estimate the tax liability of that
person, if any, based on any information available including, but not limited
to, the records of the person's purchasers or distributees.
(3)
The comptroller may suspend any permit or license the comptroller
has issued to a person if the person fails to keep the records required by
this section.
(4)
Records may be written, kept on microfilm, or stored on
data processing equipment.
(d)
[
(1)
The comptroller may require any person who must hold a
permit or registration under Tax Code, Chapter 153, to furnish information
that the comptroller needs to:
(A)
identify any person who applies for a motor fuels permit,
uses a signed statement to purchase tax-free diesel fuel, or transports motor
fuel in Texas by truck as a common or contract carrier, or any person who
is required to file a return;
(B)
determine the amount of bond, if any, required to commence
or continue business;
(C)
determine possible successor liability; and
(D)
determine the amount of tax the person is required to remit,
if any.
(2)
The information required may include, but is not limited
to, the following:
(A)
name of the actual owner of the business;
(B)
name of each partner in a partnership;
(C)
names of officers and directors of corporations and other
organizations;
(D)
all trade names under which the owner operates;
(E)
mailing address and actual locations of all business outlets;
(F)
license numbers, title numbers, and other identification
of business vehicles;
(G)
identification numbers assigned by other governmental agencies,
including social security numbers, federal employers identification numbers,
and drivers license numbers;
(H)
names of diesel fuel suppliers or gasoline distributors
with whom the supplier, distributor, or dealer will transact business;
(I)
names and last known addresses of former owners of the
business.
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 May 13, 2004.
TRD-200403236
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.172
The Comptroller of Public Accounts proposes an amendment
to §3.172, concerning transit company affidavit. The amendment incorporates
legislative changes in House Bill 2458, 78th Legislature, 2003, to provide
for the repeal of Tax Code, Chapter 153, and to add Tax Code, Chapter 162,
to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §153.102(b) and §153.202(b).
§3.172.Transit Company Affidavit.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(1)
that the business holds a franchise from a political subdivision
or is owned or operated by a political subdivision;
(2)
that the rates charged by the business are regulated by
the subdivision; and
(3)
that any gasoline or diesel fuel purchased by the business
at a reduced tax rate shall be used exclusively in its transit carriers that
are designed to carry 12 or more passengers.
(c)
[
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 May 13, 2004.
TRD-200403237
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.173
The Comptroller of Public Accounts proposes an amendment
to §3.173, concerning refunds on gasoline and diesel fuel tax. The amendment
incorporates legislative changes in House Bill 2425, 78th Legislature, 2003,
which amended Tax Code, Chapter 153. The proposed amendment adds subsections
(e)(8)(E) and (e)(9)(H) to provide that air conditioning and heating systems
of a motor vehicle is not a power take-off system. The proposed amendment
also adds subsection (e)(15) to provide guidelines for a motor fuel tax exemption
on the volume of water, fuel ethanol, or biodiesel blended with taxable petroleum
diesel fuel as described under Tax Code, 153.203.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Manager,
Tax Policy Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §§153.119(d), 153.222(d), 153.203(a)(11),
and 153.203(b).
§3.173.Refunds on Gasoline and Diesel Fuel Tax.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(1)
the public school district operates; or
(2)
a person under contract with the public school district
own and/or operates to provide transportation services for the public school
district and uses in performance of the contract.
(c)
[
(d)
[
(1)
one year from the first day of the calendar month that
follows:
(A)
purchase;
(B)
tax exempt sale;
(C)
use, if withdrawn from one's own storage for one's own
use;
(D)
export from Texas; or
(E)
loss by fire, theft, or accident; or
(2)
four years from the first day of the calendar month that
follows the overpayment of tax for motor fuel acquired prior to October 1,
1997, when the overpayment is the result of:
(A)
the same taxpayer who makes multiple payments of the tax
directly to the comptroller on the same motor fuel, or pays tax on motor fuel
that did not exist (e.g., a taxpayer reports and pays the tax on 10,000 gallons
of fuel in a particular reporting period. The taxpayer later files an amended
report for the same period, or a report for another period, and reports and
pays tax again on the same fuel. Essentially, the taxpayer paid the tax on
20,000 gallons when only 10,000 gallons existed.); or
(B)
a typographical error or transposed number that caused
more tax to be paid than was due; or
(C)
a misplaced decimal point that caused more tax to be paid
than was due; or
(3)
four years from the first day of the calendar month that
follows the due date of the report on which an overpayment of tax was made
for motor fuel acquired on or after October 1, 1997, by a permitted distributor,
supplier, dyed diesel fuel bonded user, or agricultural bonded user who determines
that taxes were erroneously reported or that more taxes were paid than were
due because of a mistake of fact or law. The distributor, supplier, dyed diesel
fuel bonded user or agricultural bonded user must establish the credit by
filing an amended tax report for the period in which the error occurred and
tax payment made to the comptroller.
(e)
[
(1)
Refund claim for export from Texas by non-permitted purchaser.
A claim for refund can be filed only on gasoline or diesel fuel exported in
quantities of 100 gallons or more. Invoices that reflect that the tax was
assessed, and documentation that the fuel was exported, must be maintained.
Proof of export must be one of the following:
(A)
proof of export that United States Customs officials have
certified, if the fuel was exported to a foreign country;
(B)
proof of export that a port of entry official of the state
of importation has certified, if the state of importation maintains ports
of entry;
(C)
proof from the taxing officials of the state into which
the fuel was imported that shows that the exporter has accounted for the fuel
on that state's tax reports;
(D)
other proof that the fuel has been reported to the state
into which the gasoline or diesel fuel was imported; or
(E)
a common or contract carrier's transporting documents (see §3.182
of this title (relating to Motor Fuel Transporting Documents)) that list
the consignor and consignee, the points of origin and destination, the number
of gallons shipped or transported, the date of export, and the kind of fuel
exported;
(2)
Refund claim for sale to the federal government by dealer
or jobber. For the purposes of this section, the federal government is any
department, board, bureau, agency, corporation, or commission that the United
States government has created or wholly owns. Gasoline and diesel fuel may
be sold tax-free to the federal government for its exclusive use. Evidence
that sales were made to the federal government must be maintained and consist
of:
(A)
a United States tax exemption certificate--Standard Form
1094; or
(B)
copies of the invoice(s) when a United States National
credit card--Standard Form 149, was used for the purchase, which invoice must
include the license plate number or official vehicle designation, if fuel
is delivered into the fuel supply tank of a motor vehicle; or
(C)
a copy of a contract between the dealer or jobber and the
federal government that the sales invoices or purchase vouchers under the
contract support;
(3)
Refund claim for loss by fire, theft, or accident. A tax
refund may be claimed for a loss of 100 gallons or more that fire, theft,
or accident has caused. The claimant must maintain records of the incident
that establishes that the exact quantity of fuel that has been claimed as
lost was actually lost, and that the loss resulted from that incident. The
time limitation prescribed in subsection
(d)(1)
[
(A)
If the incident is a drive-away theft at a retail outlet
(i.e., theft occurs when a person delivers gasoline or diesel fuel into the
fuel supply tank(s) of a motor vehicle at a retail outlet without payment
for the fuel), the following documentation shall be maintained:
(i)
a police department report or evidence that the incident
of drive-away theft has been or will be taken as a deduction on the federal
income tax return during the same or the subsequent reporting period; and
(ii)
separate report for each incident that the employee(s)
who witnessed the event prepared and signed. The report must include the date
and time of occurrence, type of fuel, number of gallons, outlet location,
and, if the theft is reported to a police department, the police case number.
(B)
If the accidental loss was incurred through a leak in a
line or storage tank, the minimum proof required is:
(i)
a statement by the person who actually dug up or otherwise
examined the hole or leak. Such statement should articulate the extent of
the leak, the date of the examination, and the person's name and title; and
(ii)
a statement of the actual loss as determined by computing
the measured inventory next preceding the discovery of the accidental leak,
plus motor fuel salvaged from the leaky tank or line, if any, less intervening
withdrawals for sale or use.
(C)
Claimants who are permitted distributors or suppliers must
claim a loss on line 5 of the monthly Texas Fuels Tax Report. If the claim
is for a drive-away theft, the claimant must also maintain the documentation
and meet the requirements provided in subparagraph (A) of this subsection.
If the claim is for loss by leakage, the claimant must also maintain the documentation
provided in subparagraph (B) of this subsection.
(D)
Dealers and jobbers must take inventory on the first of
each month and promptly correct the inventory for any loss that has occurred
in the preceding month. If inventories have not been accurately or timely
measured, or if complete records have not been kept of all withdrawals for
sale or use as required by law, a refund claim cannot be honored for payment;
(4)
Refund claim for gasoline or diesel fuel used off highway.
A claim for refund on fuel used solely for off-highway purposes must list
each off-highway vehicle or piece of equipment and the total number of gallons
used. Documentation that shows that the state tax was assessed and a schedule
that lists the number of gallons of gasoline, dyed diesel fuel, and undyed
diesel fuel used in both on- and off-highway vehicles and equipment must be
maintained.
(5)
Refund claim for gasoline or diesel fuel used by a lessor
of off-highway equipment. The lessor of off-highway equipment who claims a
refund of state fuel tax must maintain documentation that shows that the state
tax was assessed and paid, a list of each piece of off-highway equipment,
and a schedule of the number of gallons of gasoline, dyed diesel fuel, and
undyed diesel fuel used in both on-highway and off-highway vehicles and equipment.
A lessor who claims a refund of state fuel tax may include a separate refueling,
fuel reimbursement, or fuel service charge on the invoice, if the invoice
contains a statement that the fuel charge does not include state motor fuel
taxes.
(6)
Refund claim for incidental highway use. A refund claim
may be filed by a person who used gasoline or undyed diesel fuel in motor
vehicles incidentally on the highway, when the incidental travel on the public
highway is infrequent, unscheduled, and insignificant to the total operation
of the motor vehicle.
(A)
A record that shows the date and miles traveled during
each highway trip must be maintained.
(B)
1/4 gallon for each mile of incidental highway travel shall
be deducted from the number of gallons claimed;
(7)
Refund claim for sales by diesel fuel dealer or jobber
for off-highway use. Diesel fuel dealers or jobbers who have paid state tax
to their suppliers, or dealers who have made tax included purchases from jobbers,
and thereafter made tax-free sales on which refund claims are filed must maintain
copies of invoices issued on each tax-free sale. The invoices must have the
names and addresses of the dealers stamped or preprinted on the invoices and
must also include:
(A)
the purchaser's name;
(B)
date of delivery;
(C)
number of gallons delivered;
(D)
type or description of the vehicle into which the delivery
was made (e.g., railway engines, motorboat, refrigeration unit, stationary
engine, off-highway equipment, or nonhighway farm machinery that has traveled
between multiple farms or ranches as allowed in §3.183 of this title
(relating to On-Highway Travel of Farm Machinery));
(E)
a statement on the invoices that no tax was collected;
and
(F)
signature of the purchaser.
(8)
Refund claim for fuel used in gasoline-powered motor vehicles
equipped with power take-off or auxiliary power units. A person who files
a refund claim for gasoline used in the operation of power take-off or auxiliary
power units must use one of the following methods in determination of the
amount of gasoline used:
(A)
direct measurement method. The use of a metering device,
as defined by §3.176 of this title (relating to Metering Devices Used
to Claim Refund of Tax on Fuel Used in Power Take-Off and Auxiliary Power
Units), is an acceptable method for determination of fuel usage. A person
who files a refund claim for gasoline used to propel motor vehicles with approved
measuring or metering devices that measure or meter the fuel used in stationary
operations must maintain records on each vehicle so equipped, and the records
must reflect:
(i)
the miles driven as shown by any type of odometer;
(ii)
the gallons delivered to each vehicle; and
(iii)
the gallons used as recorded by the meter or other measuring
device;
(B)
gasoline-powered ready mix concrete trucks and solid waste
refuse trucks equipped with power take-off or auxiliary power units. Operators
of gasoline-powered ready mix concrete trucks and solid waste refuse trucks
that are equipped with power take-off or auxiliary power units that are mounted
on the motor vehicle and use the fuel supply tank of the motor vehicle may
claim refund on 30% of the total gasoline used in this state by each vehicle.
Records that reflect the following information must be maintained:
(i)
each motor vehicle so equipped;
(ii)
the miles that each vehicle has traveled, as any type
of odometer has recorded;
(iii)
the gallons delivered to each vehicle; and
(iv)
the date of delivery;
(C)
proposed alternate methods. Proposals for the use of methods
that this section does not specifically cover to determine the amount of gasoline
used in power take-off operations or auxiliary power units may be submitted
to the comptroller for approval;
(D)
accurate mileage records must be kept regardless of the
method used;
(E)
Refund claims for fuel used to operate
the air conditioning and heating systems of a gasoline-powered motor vehicle.
Beginning September 1, 2003, motor vehicle air conditioning and heating systems
are no longer considered power take-off systems. A person may file a claim
for refund of state taxes paid on gasoline used in the operation of an air
conditioning or heating system prior to September 1, 2003. A claim for refund
must be postmarked within one year from the date of use (e.g., fuel used July
2003 must be postmarked no later than August 1, 2004).
(9)
Refund claims for fuel used in diesel-powered motor vehicles
equipped with power take-off or auxiliary power units. Permitted suppliers
and agricultural bonded users who use diesel fuel in motor vehicles that are
equipped with power take-off or auxiliary power units that are mounted on
the vehicle and use the fuel supply tank of the vehicle may claim a tax credit
for the fuel used in power take-off operations or by the auxiliary power unit.
Dyed diesel fuel bonded users and other end users who are required to buy
tax-paid diesel fuel for use in motor vehicles that are equipped with a power
take-off or auxiliary power unit that is mounted on the vehicle may claim
tax refund for fuel used in power take-off operations or by the auxiliary
power unit. A person who files a refund claim or tax credit for diesel fuel
that is used in the operation of power take-off or auxiliary power units must
use one of the following methods to determine the amount of diesel fuel used:
(A)
direct measurement method. The use of a metering device,
as defined by §3.176 of this title (relating to Metering Devices Used
to Claim Refund of Tax on Fuel Used in Power Take-off and Auxiliary Power
Units), to measure fuel used in the power take-off or auxiliary power unit
is an acceptable method for determination of fuel usage. A person who files
a refund claim for diesel fuel that is used to propel motor vehicles with
approved measuring or metering devices that measure or meter the fuel used
in stationary operations must maintain records on each vehicle so equipped,
and the records must reflect:
(i)
the miles traveled as any type of odometer has recorded;
(ii)
the gallons delivered to each vehicle; and
(iii)
the gallons used, as the meter or other measuring device
has recorded;
(B)
diesel-powered ready mix concrete trucks and solid waste
refuse trucks that are equipped with power take-off or auxiliary power units.
Operators of diesel fuel-powered ready mix concrete trucks and solid waste
refuse trucks that are equipped with power take-off or auxiliary power units
that are mounted on the motor vehicle and use the fuel supply tank of the
motor vehicle may claim refund on 30% of the total diesel fuel used in this
state by each vehicle. Records that reflect the following information must
be maintained:
(i)
each motor vehicle so equipped;
(ii)
the miles that each vehicle has traveled, as any type
of odometer has recorded;
(iii)
the gallons delivered to each vehicle; and
(iv)
the date of delivery;
(C)
mileage factor method. The nontaxable use may be determined
by computing the taxable use at 1/4 gallon for each mile traveled, as the
odometer or hubmeter has recorded and subtracting that amount from the total
fuel delivered into the motor vehicle fuel supply tanks. The remainder will
be considered nontaxable, and a tax credit or tax refund may be claimed on
that quantity of fuel.
(D)
two tank method. A motor vehicle may be equipped with two
fuel tanks and an automatic switching device that a spring-activated air release
parking brake operates, and that switches from one tank that is designated
for highway use to another tank that is not so designated when the vehicle
is stationary. The highway tank and the not-for-highway tank may not be connected
by crossover line or equalizer line of any kind. The tax paid on the fuel
delivered to the tank designated not-for-highway use may be taken as a tax
credit or claimed as a tax refund. All fuel delivered into the fuel supply
tanks of a vehicle that is equipped with an automatic switching device must
be invoiced as taxable. Separate invoices must be issued for deliveries of
fuel into each tank. A notation that indicates that fuel was delivered into
the tank designated not-for-highway use must be made on invoices;
(E)
fixed percentage method. In lieu of the use of one of the
previously mentioned methods, the owner or operator of a motor vehicle that
is equipped with a power take-off or auxiliary power unit that is mounted
on the vehicle may claim a credit or refund of the tax paid on 5.0% of the
total taxable diesel fuel used in this state by each vehicle so equipped;
(F)
proposed alternate methods. Proposals for the use of methods
not specifically covered by this section to determine the amount of diesel
fuel used in power take-off operations or auxiliary power units may be submitted
to the comptroller for approval;
(G)
accurate mileage records must be kept regardless of the
method used;
(H)
Refund claims for fuel used to operate
the air conditioning and heating systems of a diesel-powered motor vehicle.
Beginning September 1, 2003, motor vehicle air conditioning and heating systems
are no longer considered power take-off systems. A person may file a claim
for refund of state taxes paid on diesel fuel used in the operation of an
air conditioning or heating system prior to September 1, 2003. A claim for
refund must be postmarked within one year from the date of use (e.g., fuel
used July 2003 must be postmarked no later than August 1, 2004).
(10)
Refund claims by federal agencies on tax-paid purchases.
A federal government agency may file a claim for refund on state taxes paid
on gasoline and diesel fuel that such agency has used exclusively. Records
that the agency maintains must include the following information:
(A)
original purchase invoice(s) that shows that the state
tax was assessed, and that a United States tax exemption certificate-Standard
Form 1094 supports; or
(B)
original purchase invoice(s) that shows that the state
tax was assessed and is stamped with the imprint of a United States national
credit card--Standard Form 149, issued to the agency that purchased the fuel;
(11)
Refund claims for sales of gasoline or diesel fuel to
a Texas public school district for its exclusive use, or to a commercial transportation
company that provides public school transportation services to a Texas public
school district and that the company uses exclusively to provide those services.
The seller of gasoline or diesel fuel on which the tax has been paid may file
for refund of the tax on sales to public school districts for the district's
exclusive use, and on sales to commercial transportation companies that provide
public school transportation services to a public school district exclusively.
Sellers who file for refund must maintain copies of invoices that have been
issued on each such tax- free sale. The invoice(s) must have the name and
address of the seller stamped or preprinted on the invoice, and include:
(A)
the purchaser's name;
(B)
date of delivery;
(C)
number of gallons delivered;
(D)
type of fuel delivered;
(E)
statement on the invoice that no tax was collected; and
(F)
signature of the purchaser;
(12)
Refund claims by public school districts on tax-paid purchases.
A Texas public school district may file a claim for refund of state taxes
paid on gasoline and diesel fuel that the district has used exclusively. Records
that the district maintains must include original invoices that show that
the tax was assessed;
(13)
Refund claims by commercial transportation companies on
tax-paid purchases. A commercial transportation company may file a claim for
refund of state taxes paid on gasoline and diesel fuel that has been used
to provide public school transportation services exclusively for a Texas public
school district. Records that the company maintains must include original
invoices that show that the state tax was assessed.
(14)
Refund claims on sales by dealers of undyed kerosene from
a blocked pump. A retail dealer who purchased undyed kerosene and paid the
state tax to its supplier, or a retail dealer who purchased tax-included kerosene
from a jobber, and thereafter makes a tax- free sale of undyed kerosene for
a non-taxable use from a blocked pump, may file a claim for refund. A blocked
pump is a fuel pump at a fixed location that cannot (because, for example,
of its distance from a road surface, or the length of its delivery hose) be
used to dispense fuel directly into the fuel supply tank of a diesel-powered
highway vehicle or is locked by the dealer after each sale and unlocked by
the dealer in response to a request to purchase undyed kerosene for a nonhighway
use. A blocked pump must display a legible and conspicuous notice that states,
"UNDYED KEROSENE, NONTAXABLE USE ONLY, FOR HEATING, COOKING, LIGHTING AND
SIMILAR NONHIGHWAY USE." The invoice that the dealer has issued to the purchaser
must include a notice that states "UNDYED KEROSENE, NONTAXABLE USE ONLY, FOR
HEATING, COOKING, LIGHTING AND SIMILAR NONHIGHWAY USE, NO STATE MOTOR FUELS
TAX COLLECTED." The dealer must maintain records that include the original
purchase invoices that show that the state tax was paid on the undyed kerosene
and sales invoices that show that no state tax was collected.
(15)
Refund Claim for Water, Fuel Ethanol,
and Biodiesel Mixtures. The ultimate consumer who has paid tax on the percentage
of product that is water, fuel ethanol, or biodiesel may file a claim for
refund of taxes that have been paid on only the volume of water, fuel ethanol,
or biodiesel that is blended with taxable diesel fuel. Taxable diesel fuel
includes emulsifiers, blending agents, or additives. The refund claim must
be supported with purchase invoice(s) described in §3.203 of this title
(relating to Diesel Fuel Tax Exemption for Water, Fuel Ethanol, and Biodiesel
Mixtures) that identify the volume of water, fuel ethanol, or biodiesel on
which state tax was paid.
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 May 13, 2004.
TRD-200403238
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.174
The Comptroller of Public Accounts proposes an amendment
to §3.174, concerning incidental highway travel by bonded users. The
amendment incorporates legislative changes in House Bill 2458, 78th Legislature,
2003, to provide for the repeal of Tax Code, Chapter 153, and to add Tax Code,
Chapter 162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Manager,
Tax Policy Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §§153.209, 153.219, 153.221,
and 153.222.
§3.174.Incidental Highway Travel by Bonded Users.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
(d)
[
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 May 13, 2004.
TRD-200403239
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.175
The Comptroller of Public Accounts proposes an amendment
to §3.175, concerning liquefied gas tax decal. The amendment incorporates
legislative changes in House Bill 2458, 78th Legislature, 2003, to provide
for the repeal of Tax Code, Chapter 153, and to add Tax Code, Chapter 162,
to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §§153.302, 153.3021, 153.303,
153.305, and 153.307
§3.175.Liquefied Gas Tax Decals.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(1)
obtain from the comptroller a liquefied gas decal; and
(2)
prepay the liquefied gas tax to the comptroller on an annual
basis; or
(3)
if a motor vehicle dealer, pay the liquefied gas tax to
a permitted liquefied gas dealer when the fuel is delivered into the fuel
supply tanks of each motor vehicle; or
(4)
if an interstate trucker registered under a multistate
tax agreement, pay the liquefied gas tax to a permitted liquefied gas dealer
when the fuel is delivered into the fuel supply tanks of motor vehicles described
under the definition of "interstate trucker" in the Tax Code, §153.001,
that display a current multistate tax agreement decal.
(c)
[
(d)
[
(1)
The liquefied gas tax does not apply to sales to public
school districts and counties in this state, or to commercial transportation
companies providing transportation services to public school districts in
this state and holding valid letters of exception from the comptroller.
(2)
A public school district, commercial transportation company
providing transportation services to a public school district and holding
a valid letter of exception from the comptroller, or a county in this state
operating a motor vehicle powered by liquefied gas is not required to prepay
the liquefied gas tax and obtain a decal for the motor vehicle.
(e)
[
(1)
The following rate schedule (based on mileage driven the
previous year) applies.
(2)
A special use liquefied gas tax decal and tax is required
for the following types of vehicles described as follows: Class T: Transit
carrier vehicles operated by a transit company, $444.
(f)
[
(g)
[
(1)
The decal shall be affixed to the inside, lower right corner
of the windshield (passenger side) of the vehicle.
(2)
Invalid liquefied gas tax decals shall be removed before
installing a new decal or transferring ownership of the motor vehicle.
(h)
[
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 May 13, 2004.
TRD-200403240
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.176
The Comptroller of Public Accounts proposes an amendment
to §3.176, concerning metering devices used to claim refund of tax on
fuel used in power take-off and auxiliary power units. The amendment incorporates
legislative changes in House Bill 2458, 78th Legislature, 2003, to provide
for the repeal of Tax Code, Chapter 153, and to add Tax Code, Chapter 162,
to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are relettered as applicable.
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 units of 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
enforcing the amended rule will be in providing new information regarding
tax responsibilities. This rule is adopted under 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, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §153.119 and §153.222.
§3.176.Metering Devices Used To Claim Refund of Tax on Fuel Used in Power Take-Off and Auxiliary Power Units (Tax Code, §153.119 and §153.222).
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
(1)
the metering device, or a model thereof, must be tested
for accuracy and proper performance by the Texas Engineering Experiment Station,
Texas A&M University, or other testing agency approved by the comptroller,
and provided that the test has clearly established that the metering device
operates within the acceptance tolerances for allowable error or departure
from true performance set forth in the National Bureau of Standards, U.S.
Department of Commerce Handbook 44, latest edition for slow-flow meters;
(2)
The metering device must be designed so that the gasoline
or diesel fuel will flow through and be recorded by the metering device only
when the motor vehicle's spring-loaded air-parking brake or other approved
air-parking brake, or hydraulic parking brake is engaged, or when any hydraulic
power take-off unit which can be operated only when the motor vehicle is stationary
and is engaged, and providing that said gasoline or diesel fuel will at all
times by-pass the metering device and flow through a by-pass line when the
air brakes, hydraulic brakes, or hydraulic power take-off units described
above are disengaged, or when such motor vehicle is propelled in any manner
by such fuels; and
(3)
The metering device must be installed on the motor vehicle
and maintained by the owner or operator thereof in a manner in which it will
operate at all times within the maintenance tolerances set forth in Handbook
44 for slow-flow meters.
(d)
[
(1)
a complete record of the total miles traveled by each motor
vehicle equipped with such metering device as shown by the speedometer or
odometer readings accurately maintained;
(2)
the total gallons of gasoline or diesel fuel used therein
shall be kept for a period of four years open to inspection; and
(3)
each claim for tax credit or tax refund shall be supported
by such mileage and fuel consumption record together with the beginning and
ending meter readings recorded on such metering device.
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 May 13, 2004.
TRD-200403241
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.177
The Comptroller of Public Accounts proposes an amendment
to §3.177, concerning separate liquefied gas tax permits required. The
amendment incorporates legislative changes in House Bill 2458, 78th Legislature,
2003, to provide for the repeal of Tax Code, Chapter 153, and to add Tax Code,
Chapter 162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are relettered as applicable.
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 units of 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
enforcing the amended rule will be in providing new information regarding
tax responsibilities. This rule is adopted under 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, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §§153.304, 153.306, 153.308,
and 153.309.
§3.177.Separate Liquefied Gas Tax Permits Required.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
(1)
Liquefied gas delivered into the fuel supply tanks of motor
vehicles described under the definition of "interstate trucker" in the Tax
Code, §153.001, and displaying a current multistate tax agreement decal
is a taxable delivery of liquefied gas.
(2)
Liquefied gas delivered into the fuel supply tank of motor
vehicles licensed in the state of Texas and displaying a current liquefied
gas tax decal is not a taxable delivery.
(d)
[
(e)
[
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 May 13, 2004.
TRD-200403242
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.178
The Comptroller of Public Accounts proposes an amendment
to §3.178, concerning trip permit in lieu of interstate trucker permit.
The amendment incorporates legislative changes in House Bill 2458, 78th Legislature,
2003, to provide for the repeal of Tax Code, Chapter 153, and to add Tax Code,
Chapter 162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are relettered as applicable.
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 units of 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
enforcing the amended rule will be in providing new information regarding
tax responsibilities. This rule is adopted under 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, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §153.109, and §153.212.
§3.178.Trip Permit in Lieu of Interstate Trucker Permit.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
(1)
has two axles and a registered gross weight in excess of
26,000 pounds; or
(2)
has three or more axles, regardless of weight; or
(3)
is used in combination and the registered gross weight
of the combination exceeds 26,000 pounds.
(d)
[
(1)
A trip permit must be obtained before entering into Texas.
(2)
The trip permit is valid for 20 days from date of purchase.
(3)
The trip permit is acceptable for one entry into the state.
(e)
[
(1)
A remittance for the trip permit shall be made to the Texas
state treasurer in the amount of $50.
(2)
The remittance may be in the form of a cashier's check
or a money order delivered by mail or wire service to the Texas comptroller's
office, Austin.
(3)
The receipt from the cashier's check or money order shall
be marked "trip permit" and carried in the vehicle for which the tax payment
is made.
(f)
[
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 May 13, 2004.
TRD-200403243
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.180
The Comptroller of Public Accounts proposes an amendment
to §3.180, concerning signed statements for purchasing diesel fuel tax
free. The amendment incorporates legislative changes in House Bill 2458, 78th
Legislature, 2003, to provide for the repeal of Tax Code, Chapter 153, and
to add Tax Code, Chapter 162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are relettered as applicable.
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 units of 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
enforcing the amended rule will be in providing new information regarding
tax responsibilities. This rule is adopted under 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, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §153.205
§3.180.Signed Statements for Purchasing Diesel Fuel Tax Free.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
(1)
The signed statement must include the purchaser's end user
number and must specify that:
(A)
all diesel fuel purchased is of the type that may not legally
be used on the public highway;
(B)
all dyed diesel fuel will be used by the buyer and will
not be resold; and
(C)
none of the dyed diesel fuel will be delivered into the
fuel supply tanks of motor vehicles operated on public highways.
(2)
A person may buy, and a supplier may sell, dyed diesel
fuel tax free using a signed statement subject to the following limitations:
(A)
not more than 7,400 gallons may be purchased or sold in
a single delivery; or
(B)
not more than 10,000 gallons may be purchased or sold to
a purchaser during a calendar month. The purchase, sale, or delivery that
causes the 10,000 gallon limit to be exceeded during a calendar month is not
taxable. Any subsequent purchase or sale, or delivery made during the same
calendar month is taxable.
Figure: 34 TAC §3.180(c)(2)(B)
(3)
A person who uses dyed diesel fuel exclusively in the original
production of oil and gas, or to increase the production of oil and gas, must
obtain a letter of exception that authorizes the person to exceed the 10,000
gallon limit. Examples of uses that may occur in the original production or
to increase production of oil and gas include the use of dyed diesel fuel
to drill, fracture, perforate, squeeze cement, acidize, log, plug back, complete,
plug and abandon, install a casing liner, pull or reset a casing liner, swab,
drill out a plug, jet, pack gravel or workover, and fuel that is used in a
hot oil treatment of a formation. Oil and gas production does not include
maintaining the site, mowing, painting, gauging tanks, changing pumps, performing
rod or tubing jobs, fishing for rods or tubing, repairing a tubing leak, changing
a packer or anchor, performing hot oil or water treatment on casing, tubing
or flow lines, and transporting. A person who uses dyed diesel fuel exclusively
in the original production or to increase the production of oil and gas, may
buy, and a supplier may sell, dyed diesel fuel tax free by using a letter
of exception and a signed statement, subject to the following limitations:
(A)
not more than 7,400 gallons may be purchased or sold in
a single delivery; or
(B)
not more than 25,000 gallons may be purchased or sold during
a calendar month. The purchase or sale that causes the 25,000 gallon limit
to be exceeded during a calendar month is not taxable. Any subsequent purchase
or sale made during the same calendar month is taxable.
(d)
[
(1)
The signed statement must include the purchaser's Agricultural
Exemption Number and must specify that:
(A)
all dyed or undyed diesel fuel purchased will be used exclusively
in agricultural, nonhighway equipment;
(B)
all dyed or undyed diesel fuel will be used by the buyer
and will not be resold; and
(C)
none of the dyed or undyed diesel fuel will be delivered
into the fuel supply tanks of motor vehicles operated on public highways.
(2)
A person may buy, and a supplier may sell, dyed or undyed
diesel fuel tax free using a signed statement subject to the following limitations:
(A)
not more than 7,400 gallons may be purchased or sold in
a single delivery; or
(B)
not more than 25,000 gallons may be purchased or sold to
a purchaser during a calendar month. The purchase, sale, or delivery that
causes the 25,000 gallon limit to be exceeded during a calendar month is not
taxable. Any subsequent purchase, sale, or delivery made during the same calendar
month is taxable.
(e)
[
(1)
meets all of the requirements as set out in
subsection
(c) or (d)
[
(2)
does not resell the fuel;
(3)
consumes the fuel; and
(4)
maintains separate storage apart from other corporate divisions.
(f)
[
(1)
it is revoked in writing by either the buyer or seller;
or
(2)
the comptroller notifies the supplier in writing that the
buyer may no longer make tax-free purchases.
(g)
[
(h)
[
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 May 13, 2004.
TRD-200403244
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.182
The Comptroller of Public Accounts proposes an amendment
to §3.182, concerning motor fuel transporting documents. The amendment
incorporates legislative changes in House Bill 2458, 78th Legislature, 2003,
to provide for the repeal of Tax Code, Chapter 153, and to add Tax Code, Chapter
162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are relettered as applicable.
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 units of 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
enforcing the amended rule will be in providing new information regarding
tax responsibilities. This rule is adopted under 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, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §§153.004, 153.103, and 153.204.
§3.182.Motor Fuel Transporting Documents.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
(1)
the type of motor fuel being transported, and if dyed diesel
fuel is being transported, a notice that states "Dyed Diesel Fuel, Nontaxable
Use Only, Penalty for Taxable Use";
(2)
the name and the federal employer identification number
or social security number of the carrier. If the federal identification number
or social security number of the carrier is not printed on the cargo manifest
or shipping document, that information must be in the records of the terminal
or bulk plant operator and made available for review when requested;
(3)
the quantity of motor fuel in gross gallons;
(4)
the temperature and quantity in temperature adjusted gallons
when the fuel is loaded at a terminal for export or import or when the sale
of gasoline or diesel fuel must comply with §3.190 of this title (relating
to Temperature Adjustment Conversion Table);
(5)
the percentage of ethanol or methanol contained in the
motor fuel;
(6)
the types and percentages of cosolvents contained in the
motor fuel, if methanol has been added;
(7)
the date of loading or movement;
(8)
the name and physical address or Terminal Code Number assigned
by the United States Internal Revenue Service of the terminal or bulk plant
at which the cargo was loaded;
(9)
the destination of the cargo;
(10)
the name of the seller, consignor, or shipper;
(11)
the name, federal employer identification number, permit
number if applicable, and physical address of the purchaser or consignee (the
federal identification number, permit number, and physical address of the
purchaser or consignee must be in the records of the terminal or bulk plant
operator and available for review if not printed on the shipping document);
(12)
the method of transportation:
(A)
if by truck, the license or unit number;
(B)
if by barge or boat, the name of the vessel;
(C)
if by railway, the rail car number and initial;
(13)
the name of the person responsible for payment of the
tax, if different from the permitted supplier or distributor. If this information
is not printed on the manifest or shipping document, it must be in the records
of the terminal operator and made available for review when requested;
(14)
the amount of delivery fee assessed under Water Code, §27.3574;
and
(15)
any other information the comptroller deems necessary
for the proper administration of Tax Code, Chapter 153.
(d)
[
(e)
[
(1)
If the cargo is being loaded at different locations, a
notation of the fuel loaded at each location must be made on the cargo manifest,
or a separate manifest that covers the fuel or blend material loaded at each
location must be issued.
(2)
If the cargo is being off-loaded at various locations,
then at the time the off-loading is accomplished, a notation of the fuel off-loaded
shall be made on the required cargo manifest, or a customer invoice that indicates
the location and amount of motor fuel that has been off-loaded at each place
shall be prepared. If invoices are used instead of notations on the manifest,
the invoices must be attached or cross referenced to the manifest for record
purposes. The cargo manifest or a copy of the customer invoice shall be retained
with the transporting vehicle until the motor fuel is removed from the cargo
tank.
(3)
A cargo manifest is not required on motor fuel that an
end user purchases on a signed statement and transports in the user's own
cargo tank.
(4)
If the delivery fee assessed under Water Code, §26.3574,
is not shown on the cargo manifest, it must be shown on the invoice that covers
the delivery, and be cross referenced to the manifest for record purposes.
(f)
[
(1)
the fuel off-loaded at different locations is the same
product type (gasoline or diesel fuel);
(2)
the delivery is accomplished from the same cargo tank;
(3)
proper notations are made on the cargo manifest or customer
invoices, or delivery tickets are prepared and kept with the cargo manifest;
and
(4)
the off-loading occurs within a reasonable time that allows
for transit from one location to another.
(g)
[
(1)
the seller is unable to make the requested delivery in
a single cargo tank;
(2)
the delivery of all the requested fuel was completed within
a reasonable time (usually within 24 hours);
(3)
the customer would have been able to accept the entire
amount requested at one time; and
(4)
the customer has previously requested deliveries of 5,000
or more gallons of the type of requested fuel, or the customer has changed
business operations and now requires deliveries of 5,000 or more gallons of
the type of requested fuel.
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 May 13, 2004.
TRD-200403245
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.183
The Comptroller of Public Accounts proposes an amendment
to §3.183, concerning on-highway travel of farm machinery. The amendment
incorporates legislative changes in House Bill 2458, 78th Legislature, 2003,
to provide for the repeal of Tax Code, Chapter 153, and to add Tax Code, Chapter
162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are relettered as applicable.
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 units of 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
enforcing the amended rule will be in providing new information regarding
tax responsibilities. This rule is adopted under 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, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §153.119 and §153.222
§3.183.On-Highway Travel of Farm Machinery.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
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 May 13, 2004.
TRD-200403246
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.184
The Comptroller of Public Accounts proposes an amendment
to §3.184, concerning assignment of refund claims for tax-paid gasoline
exported from Texas. The amendment incorporates legislative changes in House
Bill 2458, 78th Legislature, 2003, to provide for the repeal of Tax Code,
Chapter 153, and to add Tax Code, Chapter 162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are relettered as applicable.
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 units of 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
enforcing the amended rule will be in providing new information regarding
tax responsibilities. This rule is adopted under 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, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §153.104 and §153.119
§3.184.Assignment of Refund Claims for Tax-Paid Gasoline Exported from Texas.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
(d)
[
(1)
Properly executed assignment of all right to claim tax
refund made to the permitted distributor making the sale and claiming tax
refund or credit.
(2)
Proof of export of tax-paid gasoline including one of the
following forms of evidence which shall be secured by the distributor claiming
tax refund or credit:
(A)
proof of export certified by a United States customs officer
if the gasoline is exported from this state to a foreign country;
(B)
proof of export certified by port of entry of state of
importation if ports of entry are maintained;
(C)
proof from the tax officials of the state into which the
gasoline was imported that the gasoline has been accounted for by the exporter
on that state's tax reports; or
(D)
other proof that the gallons have been accounted for to
the state into which the gasoline was imported.
(e)
[
(f)
[
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 May 13, 2004.
TRD-200403247
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.185
The Comptroller of Public Accounts proposes an amendment
to §3.185, concerning diesel tax prepaid user permit. The amendment incorporates
legislative changes in House Bill 2458, 78th Legislature, 2003, to provide
for the repeal of Tax Code, Chapter 153, and to add Tax Code, Chapter 162,
to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §153.210.
§3.185.Diesel Tax Prepaid User Permit.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
(1)
use at least 51% of all the diesel fuel purchased by the
applicant for agricultural nonhighway purposes;
(2)
not own or operate diesel-powered passenger cars or light
trucks that are not within the weight classes listed in subsection
(f)
[
(3)
have bulk diesel storage tank(s) used only by the applicant.
(d)
[
(e)
[
(f)
[
(g)
[
(1)
If the cost of the annual permit is greater than the amount
of tax due on the diesel fuel actually consumed during the permit year, a
nonrefundable credit equal to the difference may be claimed, provided the
required renewal date of the permit is October 1, 1995, or later.
(2)
The credit may only be applied against the cost of renewal
or purchase of a new diesel tax prepaid user permit for the following year,
and the credit is valid for one year beginning with the required renewal date
of the permit.
(3)
The odometer of the vehicle for which a diesel tax prepaid
user permit is held must be maintained in working order. If not, a credit
claim cannot be approved.
(h)
[
(1)
A distribution log must be submitted with an application
for renewal of a diesel tax prepaid user permit. The distribution log must
reflect the following information:
(A)
the date of each delivery of diesel fuel into the fuel
supply tank of the motor vehicle for which the permit is held;
(B)
the number of gallons delivered;
(C)
the odometer reading of the motor vehicle at the time of
delivery; and
(D)
the state license plate number or vehicle identification
number of the motor vehicle.
(2)
Purchase invoices for diesel fuel delivered into the fuel
supply tank of a motor vehicle for which a diesel tax prepaid user permit
is held from other than one's own storage, must contain:
(A)
the name of the seller;
(B)
the name of the purchaser;
(C)
the date of delivery;
(D)
the number of gallons delivered;
(E)
the odometer reading of the motor vehicle at the time of
delivery;
(F)
the state license plate number or vehicle identification
number of the motor vehicle; and
(G)
the signature of the recipient.
(3)
Records pertaining to odometer repair or replacement.
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 May 13, 2004.
TRD-200403248
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.187
The Comptroller of Public Accounts proposes an amendment
to §3.187, concerning documentation and reporting of imports and exports,
import verification numbers, export sales by distributors and suppliers, and
diversion numbers. The amendment incorporates legislative changes in House
Bill 2458, 78th Legislature, 2003, to provide for the repeal of Tax Code,
Chapter 153, and to add Tax Code, Chapter 162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §153.018.
§3.187.Documentation and Reporting of Imports and Exports, Import Verification Numbers, Export Sales by Distributors and Suppliers, and Diversion Numbers.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(1)
Imports. Motor fuel imported into Texas by or for a seller
constitutes an import by that seller. Motor fuel imported into Texas by or
for a purchaser constitutes an import by that purchaser.
(2)
Import Verification Number. An importer must obtain from
the comptroller an import verification number for each load of gasoline or
diesel fuel imported into Texas by truck. An import verification number must
be obtained within 72 hours before or after the gasoline or diesel fuel enters
Texas. The importer must write the import verification number on the shipping
document issued for that fuel.
(3)
Documentation. An importer must possess a shipping document
created by the terminal or bulk plant where the fuel was loaded (see §3.182
of this title (relating to Motor Fuel Transporting Documents)) for motor fuel
imported by any means into Texas.
(c)
[
(1)
Exports. Motor fuel exported from Texas by or for a seller
constitutes an export by that seller. Motor fuel exported from Texas by or
for a purchaser constitutes an export by that purchaser. A permitted distributor
or a permitted supplier exports motor fuel when the distributor or supplier
ships motor fuel to a point outside the state:
(A)
through facilities that the permittee operates;
(B)
through delivery by the permittee as consignor to a common
or contract carrier, an ocean- going vessel (including ship, tanker, or boat),
or a barge, for shipment to a consignee at the out- of-state point; or
(C)
through delivery by the permittee to a customs or forwarding
agent, for shipment forthwith outside the state.
(2)
Export sales. A permitted distributor or permitted supplier
makes an export sale when he sells motor fuel in Texas to a non-Texas permitted
purchaser who then, prior to any other sale or use in Texas, sends or transports
the motor fuel outside the state by a common or contract carrier, an ocean-going
vessel (including ship, tanker, or boat), or a barge.
(A)
If the purchaser fails to provide or refuses to divulge
the final destination of the fuel, which thereby prevents the proper reporting
of the fuel export, then the seller shall collect Texas tax at the time of
the sale in Texas.
(B)
A permitted distributor or supplier who makes an export
sale will not be liable for tax on motor fuel that the purchaser diverts provided
that the seller has obtained, at the time of sale, documentation from the
purchaser that shows that the fuel is to be delivered to a destination outside
Texas.
(C)
When both parties to the transaction in Texas are permitted
distributors or permitted suppliers, the transaction will be reported as a
distributor-to-distributor or supplier-to-supplier tax-free sale in Texas,
followed by an export or export sale. The last Texas permitted distributor
or supplier who holds legal title shall report the export or export sale.
(3)
Documentation.
(A)
Shipping document. An exporter must possess a shipping
document created by the terminal or bulk plant where the fuel was loaded (see §3.182
of this title relating to Motor Fuel Transporting Documents) for motor fuel
exported by any means from Texas.
(B)
Common or contract carriers. The documents for the distributor's
or supplier's records, in addition to other records required, must be supported
by a bill of lading issued by the common or contract carrier, ocean-going
vessel, or barge listing the consignor and consignee, the points of origin
and destination, the number of gallons shipped or transported, the date of
export, and the kind of fuel exported.
(C)
Proof of export. The comptroller may request proof of export
from the distributor or supplier to verify that the motor fuel was exported
from Texas. This proof may consist of:
(i)
proof of export that a U.S. customs office has certified,
if the fuel was exported from this state to a foreign country;
(ii)
proof of export that a port of entry of the state of importation
has certified, if ports of entry are maintained by that state;
(iii)
proof from the tax officials of the state into which
the motor fuel was imported, which shows that the exporter has accounted for
the motor fuel on the state's tax reports; or
(iv)
other proof that the fuel has been reported to the state
into which the motor fuel was imported.
(d)
[
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 May 13, 2004.
TRD-200403249
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.189
The Comptroller of Public Accounts proposes an amendment
to §3.189, concerning proof of resale. The amendment incorporates legislative
changes in House Bill 2458, 78th Legislature, 2003, to provide for the repeal
of Tax Code, Chapter 153, and to add Tax Code, Chapter 162, to replace the
repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §§153.103, 153.105(c), 153.204,
and 153.206(f).
§3.189.Proof of Resale.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
(1)
the date signed;
(2)
the name and address of the seller;
(3)
the name and address of the purchaser;
(4)
a statement that the fuel purchased is for resale; and
(5)
the type of fuel covered by the statement.
(d)
[
(e)
[
(f)
[
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 May 13, 2004.
TRD-200403250
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.190
The Comptroller of Public Accounts proposes an amendment
to §3.190, concerning temperature adjustment conversion table. The amendment
incorporates legislative changes in House Bill 2458, 78th Legislature, 2003,
to provide for the repeal of Tax Code, Chapter 153, and to add Tax Code, Chapter
162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §153.103 and §153.204.
§3.190.Temperature Adjustment Conversion Table.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
(d)
[
(1)
All sales or deliveries of gasoline or diesel fuel into
cargo tanks must be metered except:
(A)
deliveries by a person into his own cargo tank when the
volume does not require temperature correction and the cargo tank is equipped
with a meter to accurately measure in gallons the sale or delivery from the
cargo tank;
(B)
when deliveries are made as provided by §3.182 of
this title (relating to Motor Fuel Transporting Documents);
(C)
deliveries by a person from his own storage facility into
his own cargo tank with a capacity of less than 5,000 gallons or into a compartmentalized
tank from which no single delivery in excess of 5,000 gallons will be made.
The capacity must be documented and determined by an independent party using
generally accepted industry measurement standards; and
(D)
imported diesel fuel and gasoline that is transported in
a cargo tank measured according to the conditions stated in subparagraph (C)
of this subsection. When delivery of imported fuel must comply with the Texas
Tax Code, §153.103 for gasoline and §153.204 for diesel fuel, the
temperature may be taken at the time of loading or at the time of unloading,
as determined by the seller and purchaser.
(2)
All permitted distributors of gasoline and suppliers of
diesel fuel must compute and pay tax based on gross gallons metered except
as provided by the Texas Tax Code, §153.103, for gasoline and the Texas
Tax Code, §153. 204, for diesel fuel or the number of gallons delivered
into a measured cargo tank as authorized by paragraphs (1)(C) and (1)(D) of
this subsection.
(e)
[
(f)
[
(g)
[
(h)
[
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 May 13, 2004.
TRD-200403251
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.193
The Comptroller of Public Accounts proposes an amendment
to §3.193, concerning bad debt deductions. The amendment incorporates
legislative changes in House Bill 2458, 78th Legislature, 2003, to provide
for the repeal of Tax Code, Chapter 153, and to add Tax Code, Chapter 162,
to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §§153.1195, 153.2225, and 153.409.
§3.193.Bad Debt Deductions.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(1)
A permitted gasoline distributor or diesel fuel supplier
may take credit against taxes to be remitted to the comptroller for bad debt
on sales.
(2)
To establish bad debt credit, a distributor's or supplier's
records must show:
(A)
date of sale(s);
(B)
name and address of purchaser;
(C)
invoices reflecting the tax was assessed;
(D)
taxes paid by the distributor or supplier;
(E)
all payments or credits applied to the account of the purchaser;
and
(F)
uncollected amounts designated as a bad debt in the distributor's
or supplier's records.
(3)
To determine the amount of bad debt allowance for tax,
all payments or credits in reduction of a customer's account must be applied
ratably between motor fuel and other goods sold to that customer, and the
credit allowed will be the tax on the number of gallons represented by the
motor fuel portion of the bad debt.
(4)
The following information must be submitted with the distributor's
or supplier's report on which the credit is claimed:
(A)
name and address of the purchaser;
(B)
Texas taxpayer number or federal identification number
or social security number, if available;
(C)
beginning and ending dates of sales on which the bad debt
is being taken;
(D)
number of gallons and dollar amount of bad debt; and
(E)
the fuel type (gasoline or diesel fuel).
(c)
[
(1)
A credit card is defined as any card, plate, key, or like
device by which credit is extended to and charged to the purchaser's account.
(2)
Sales of fuel into the supply tank of a motor vehicle or
motorboat when payment is made through the use and acceptance of a credit
card may not be taken as a bad debt credit.
(3)
All credit sales to commercial or agricultural customers
at locations not open to the general public are subject to the bad debt credit.
(d)
[
(1)
If an account is collected which has been written off as
a bad debt, interest will accrue from the date the credit was taken.
(2)
Penalty will be imposed if the recovered bad debt is not
reported and tax is not paid to the state during the reporting period in which
the recovery is made or if the comptroller determines that the taxpayer knew
or should reasonably have known that the debt was collectible at the time
the credit was taken.
(e)
[
(1)
A permitted gasoline distributor or diesel fuel supplier
may notify the comptroller of a customer that has issued a check for insufficient
funds as payment of a debt or obligation that included the tax on gasoline
and/or diesel fuel. Before notifying the comptroller of such an occurrence,
the distributor or supplier must have complied with the provisions of subsection
(b)(2)-(4)
[
(2)
The issuer of a bad check identified under paragraph (1)
of this subsection may receive a written warning from the comptroller for
the first occurrence. The comptroller may assess a penalty equal to 100% of
the gasoline and/or diesel fuel tax amount included in the bad check. If assessed,
this penalty will be imposed in addition to penalties, interest, and collection
actions authorized by the Tax Code.
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 May 13, 2004.
TRD-200403252
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.196
The Comptroller of Public Accounts proposes an amendment
to §3.196, concerning reports, due dates, bonding requirements, and qualifications
for annual filers. The amendment incorporates legislative changes in House
Bill 2458, 78th Legislature, 2003, to provide for the repeal of Tax Code,
Chapter 153, and to add Tax Code, Chapter 162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §§153.118, 153.218, 153.221,
and 153.310.
§3.196.Reports, Due Dates, Bonding Requirements, and Qualifications for Annual Filers.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(1)
Interstate truckers as defined by the Tax Code, §153.001(12),
and bonded users of diesel fuel as defined by the Tax Code, §153.209,
having an average quarterly tax liability of $600 or less have the option
of filing quarterly or annual reports. After the method of reporting has been
selected, it cannot be changed without permission from the comptroller unless
the tax liability for a year exceeds $2,400. If the tax liability during a
year exceeds $2,400, a report must be filed for all previous quarters of that
year. Future reports must be filed on a quarterly basis.
(2)
Interstate truckers and bonded users of diesel fuel having
an average quarterly tax liability of more than $600 must file quarterly reports.
(3)
Liquefied gas dealers as defined by the Tax Code, §153.304,
and liquefied gas interstate truckers as defined by the Tax Code, §153.306,
must file annual reports.
(c)
[
(1)
The due date for all annual reports is January 25th.
(2)
Annual filers may receive a refund for credit gallons accrued
during quarterly periods whose due date is not more than one year before the
date the annual report was filed.
(A)
If the report is filed by the due date, a request for refund
must be made on the annual report.
(B)
If the annual report is not filed by the due date, quarterly
reports for the periods within one year must be filed with the request. The
quarterly reports filed shall be assigned the same postmark date as the annual
report.
(d)
[
(e)
[
(1)
Interstate truckers who obtain permits during the calendar
year must file quarterly reports until they are notified that they have the
option to file annually.
(2)
The annual report for a permit holder going out of business
or whose permit is cancelled during the year is due on or before the 25th
day of the month following the calendar quarter in which business ceased.
(3)
Interstate truckers and diesel fuel users will be notified
each March of any filing status change based on the previous year's operation.
(f)
[
(g)
[
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 May 13, 2004.
TRD-200403253
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.200
The Comptroller of Public Accounts proposes an amendment
to §3.200, concerning transportation services for public school districts.
The amendment incorporates legislative changes in House Bill 2458, 78th Legislature,
2003, to provide for the repeal of Tax Code, Chapter 153, and to add Tax Code,
Chapter 162, to replace the repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §§153.104, 153.203, and 153.3021.
§3.200.Transportation Services for Public School Districts.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(1)
that the company has contracted with a specific public
school district to provide transportation services (other than charter trips)
for the school district;
(2)
that motor fuel purchased tax free will be used exclusively
by the company to provide the transportation services for the school district;
and
(3)
the vehicle identification number and vehicle license plate
number for each vehicle equipped to use liquefied gas to furnish transportation
services exclusively to public school districts.
(c)
[
(d)
[
(1)
the number of gallons of gasoline, diesel fuel, and liquefied
gas on hand on the first day of each month;
(2)
the number of gallons of gasoline, diesel fuel, and liquefied
gas purchased or received, showing the name of the seller and the date of
each purchase;
(3)
the date and number of gallons of gasoline, diesel fuel,
and liquefied gas delivered into the fuel supply tanks of vehicles used to
furnish transportation services to public school districts;
(4)
the date and number of gallons of gasoline, diesel fuel,
and liquefied gas delivered into the fuel supply tanks of vehicles used to
furnish transportation services other than to public school districts;
(5)
the date and number of miles traveled to provide transportation
services to the public school district, including starting point, destination,
purpose of trip, beginning and ending odometer readings, vehicle identification
number, and the vehicle license plate number;
(6)
the date and number of miles traveled to provide transportation
services other than to public school district(s), including the beginning
and ending odometer readings, vehicle identification number, and vehicle license
plate number.
(e)
[
(1)
the fuel is sold other than to a public school district
which the commercial transportation company has entered into a contract to
provide transportation services; or
(2)
the fuel is used in a vehicle for any purpose other than
providing transportation services to a public school district.
(f)
[
(1)
the total number of gallons of tax-free gasoline and/or
diesel fuel on hand in storage tanks and in the fuel supply tanks of motor
vehicles, and remit the tax due on the ending tax free inventory; and/or
(2)
in the case of a liquefied gas vehicle, obtain a liquefied
gas tax decal for previously excepted vehicles used to provide transportation
services under the canceled/completed contract.
(g)
[
(1)
The refund shall be computed by starting the trip with
a full fuel supply tank or tanks, maintaining records of the fuel delivered
into the fuel supply tank or tanks of the vehicle during the trip, and filling
the fuel supply tank or tanks upon arrival back at the starting destination.
The number of gallons delivered into the fuel supply tank or tanks after the
start of the trip will be the number of gallons on which a refund may be claimed.
(2)
The records required by subsection
(d)(5)
[
(3)
The commercial transportation company shall keep a copy
of the billing to the school district for the trip.
(h)
[
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 May 13, 2004.
TRD-200403254
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.202
The Comptroller of Public Accounts proposes an amendment
to §3.202, concerning common and contract carrier registration, reports,
due dates, and administrative remedies. The amendment incorporates legislative
changes in House Bill 2458, 78th Legislature, 2003, to provide for the repeal
of Tax Code, Chapter 153, and to add Tax Code, Chapter 162, to replace the
repealed chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §153.003.
§3.202.Common and Contract Carrier Registration, Reports, Due Dates, and Administrative Remedies.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(c)
[
(d)
[
(e)
[
(1)
The comptroller may assess a penalty not to exceed $200
against a common or contract carrier that fails to register or provide registration
information to the comptroller.
(2)
The comptroller may assess a penalty not to exceed $200
against a common or contract carrier that fails to file a report. Each calendar
quarter that a common or contract carrier fails to file a report with the
comptroller is a separate violation.
(3)
The comptroller may assess a penalty not to exceed $25
for each unreported truck load of gasoline or diesel fuel transported in Texas
against a common or contract carrier that fails to file a report detailing
the carrier's transportation of gasoline or diesel fuel by truck.
(4)
The comptroller will send notice to the common or contract
carrier that a penalty is being assessed. The common or contract carrier may
request a redetermination within 30 days of the date of the notice under the
terms of §§1.1-1.42 of this title (relating to Rules of Practice
and Procedure).
(5)
An oral hearing at the office of the Comptroller of Public
Accounts in Austin, Texas, may be requested.
(6)
The standard of proof in an administrative hearing pursuant
to this section is by a preponderance of the evidence, unless otherwise provided
by statute.
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 May 13, 2004.
TRD-200403255
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.203
The Comptroller of Public Accounts proposes an amendment
to §3.203, concerning diesel fuel tax exemption for water, fuel ethanol,
and biodiesel mixtures. The amendment incorporates legislative changes in
House Bill 2458, 78th Legislature, 2003, to provide for the repeal of Tax
Code, Chapter 153, and to add Tax Code, Chapter 162, to replace the repealed
chapter.
Subsection (a) is amended to clarify the date through which the current
rule is applicable and to provide reference to the new motor fuel subchapter
of the Texas Administrative Code that becomes effective January 1, 2004. Other
subsections are renumbered as applicable.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Tax Policy
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code §111.102, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The amendment implements Tax Code §153.203 (a)(11) and §153.203(b).
§3.203.Diesel Fuel Tax Exemption for Water, Fuel Ethanol, and Biodiesel Mixtures.
(a)
This rule applies only to motor fuel transactions
that take place prior to January 1, 2004. Motor fuel transactions that occur
on or after January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter S.
(b)
[
(1)
Water-based diesel fuel--a combination of water, petroleum
diesel fuel, emulsifier, and seasonal additives (when necessary) into an emulsion
that is suitable or used for the propulsion of a diesel-powered motor vehicle.
(2)
Fuel ethanol--alcohol that is made from agricultural products
and bioethanol that is made from cellulosic biomass materials.
(3)
Biodiesel--a petroleum diesel fuel substitute that is manufactured
from vegetable oils, animal fats, or recycled greases combined with alcohol
(ethanol or methanol) in the transesterification process.
(c)
[
(d)
[
(1)
The volume of water, fuel ethanol, or biodiesel that is
combined with taxable diesel fuel must be identified on the sales invoice
on each sales transaction after the water, fuel ethanol, or biodiesel is first
blended with taxable diesel fuel, and must continue to be identified on sales
invoices until the blended product is sold to the ultimate consumer.
(2)
A sales invoice must:
(A)
identify a water-based diesel fuel, ethanol blended diesel
fuel, or biodiesel by a commonly accepted commercial or industry name for
the blended product;
(B)
list the volume in gallons (rounded to the nearest whole
gallon) or the percentage (rounded to the nearest tenth of one percent) of
the blended product that is water, fuel ethanol, or biodiesel;
(C)
list the volume in gallons (rounded to the nearest whole
gallon) or the percentage (rounded to the nearest tenth of one percent) of
the blended product that is taxable diesel fuel. Taxable diesel fuel includes
emulsifiers and additives, but not water, fuel ethanol, or biodiesel; and
(D)
list the basis of calculating the tax (if a taxable sale)
as either $0.20 for each gallon of taxable diesel fuel in the blended product
or a ratable tax rate based on the percent of taxable diesel in the blended
product. For example, the invoice for the sale of 100 gallons that is a blend
of 20% water and 80% taxable diesel fuel may list: state diesel fuel tax of
$0.20 per gallon on 80 gallons, or state diesel fuel tax of $0.16 per gallon
on 100 gallons of water-based diesel fuel.
(e)
[
(1)
A notice must be posted in a conspicuous location on each
storage tank and retail pump from the time that the water, fuel ethanol, or
biodiesel is first blended with taxable diesel fuel until the blended product
is sold to the ultimate consumer, and state the volume percentage of water,
fuel ethanol, or biodiesel that is blended with petroleum diesel fuel.
(2)
The notice must:
(A)
identify the product by the common industry name or commercial
name of the blended product,
(B)
state the percentage (rounded to the nearest tenth of one
percent) of the finished blended product that is water, fuel ethanol, or biodiesel,
and
(C)
state the percentage (rounded to the nearest tenth percent
of one percent) of the finished blended product that is taxable diesel fuel.
Taxable diesel fuel includes emulsifiers and additives, but not water, fuel
ethanol, or biodiesel.
(f)
[
(g)
[
(1)
A water-based diesel fuel, ethanol blended diesel fuel,
or biodiesel fuel that is delivered into the fuel supply tank(s) of a motor
vehicle that is licensed under the IFTA is presumed to be used in the jurisdiction
in which it was purchased. This presumption may be overcome if it is shown
that the total amount of water-based diesel fuel, ethanol blended diesel fuel,
or biodiesel fuel that is purchased in a jurisdiction is greater than the
amount of total diesel fuel used in that jurisdiction by all diesel-powered
motor vehicles that the IFTA licensee operates.
(2)
In calculating the IFTA fleet average mile-per-gallon,
the total gallons of diesel fuel that are consumed includes the total gallons
of water-based diesel fuel, ethanol blended diesel fuel, or biodiesel.
(3)
An IFTA licensee who overpays the tax on a water-based
diesel fuel, ethanol blended diesel fuel, or biodiesel fuel by way of an IFTA
tax return may request a refund. A refund claim must be supported with purchase
invoice(s) as described in subsection
(d)
[
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 May 13, 2004.
TRD-200403256
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.744
The Comptroller of Public Accounts proposes a new §3.744,
concerning liquefied gas tax decal. The new rule incorporates legislative
changes in House Bill 2458, 78th Legislature, 2003, to add Tax Code, Chapter
162, relating to motor fuel taxes and the repeal of Tax Code, Chapter 153.
The new rule provides a liquefied gas decal rate schedule, sets out exceptions
to liquefied gas tax, discusses the display of decals, and provides guidance
for refunds of prepaid liquefied gas tax.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Manager,
Tax Policy Division, P.O. Box 13528, Austin, Texas, 78711.
The new rule is proposed under Tax Code, §111.002, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of Tax Code, Title 2.
The new rule implements the Tax Code, §§162.302, 162.3021, 162.305,
162.307, 162.309, and 162.311.
§3.744.Liquefied Gas Tax Decal. (Tax Code, §§162.302, 162.3021, 162.305, 162.307, 162.309, and 162.311).
(a)
Effective date. This rule applies only to motor fuel transactions
that take place on or after January 1, 2004. Motor fuel transactions that
occur prior to January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter L.
(b)
Use of decal. Except as provided in subsections (c), (d),
and (g), a person who operates a motor vehicle that is required to be licensed
in Texas for use on the public highways of Texas and that is powered by natural
gas, methane, ethane, propane, butane, or a mixture of those gases, including
a motor vehicle equipped to use liquefied gas interchangeably with another
motor fuel, must:
(1)
obtain from the comptroller a liquefied gas decal; and
(2)
prepay the liquefied gas tax to the comptroller on an annual
basis.
(c)
Motor Vehicle Dealer. A motor vehicle dealer registered
under Transportation Code, Chapter 503, must pay the liquefied gas tax to
a licensed liquefied gas dealer when the fuel is delivered into the fuel supply
tanks of each motor vehicle that display a motor vehicle dealer decal and
that is held for resale.
(d)
Interstate trucker. An interstate trucker registered under
a multistate tax agreement (International Fuel Tax Agreement), must pay the
liquefied gas tax to a licensed liquefied gas dealer when the fuel is delivered
into the fuel supply tanks of motor vehicles that have two axles and a registered
gross weight in excess of 26,000 pounds; have three or more axles, or are
used in combination and the registered gross weight of the combination exceeds
26,000 pounds, and that display current multistate tax agreement (International
Fuel Tax Agreement) decals.
(e)
Vehicle registered in another state. A liquefied gas tax
decal cannot be issued to a motor vehicle registered in a state other than
Texas. Owners of such vehicles must pay tax to a licensed liquefied gas dealer
on fuel delivered into the fuel supply tanks.
(f)
Application. Each person purchasing liquefied gas for use
in a liquefied gas powered motor vehicle must submit an annual application
to the comptroller for each vehicle.
(1)
Initial application. An applicant initially applying for
a liquefied gas tax decal for a Class A- F motor vehicle must purchase a decal
based on an estimate of miles that will be driven during the next one-year
period.
(2)
Renewal. The applicant must produce an ending odometer
reading on the renewal application. In the absence of an ending odometer reading,
the previous year's mileage will be presumed to be at least 15,000 miles.
Applications for the upcoming year should be submitted during the month of
expiration of the current decal.
(A)
The liquefied gas tax does not apply to miles traveled
outside the state. A record of miles traveled by the motor vehicle outside
Texas must be maintained and submitted with the renewal each year. The record
must include the date(s) of travel, beginning and ending odometer readings
and destination.
(B)
Special use vehicles. Vehicles required to be licensed
for highway use but whose main purpose, design, and use is off the highway
may renew a liquefied gas decal for a rate less than the mileage indicated
on the odometer if a record or log indicating the miles traveled on the highway
by the vehicle is maintained and attached to the renewal application.
(g)
Exceptions.
(1)
School district transportation and county exceptions. The
liquefied gas tax does not apply to liquefied gas sold to public school districts
and counties in this state, or to commercial transportation companies providing
transportation services to public school districts in this state. These transportation
companies must obtain letters of exception from the comptroller, as discussed
in §3.758 of this title (relating to Transportation Services for Texas
Public School Districts).
(2)
Decal not required. A public school district, a commercial
transportation company providing transportation services to a public school
district and holding a valid letter of exception from the comptroller, or
a county in this state operating a motor vehicle powered by liquefied gas
is not required to prepay the liquefied gas tax and obtain a decal for the
motor vehicle.
(h) Rate schedule.
(1) The following rate schedule (based on mileage driven the
previous year) applies.
(2) Transit company. A special use liquefied gas tax decal
and tax is required for the following type of vehicles: Class T: Transit carrier
vehicles operated by a transit company, $444.
(i) Display of decal. The decal shall be affixed to the inside,
lower right corner of the windshield (passenger side) of the vehicle. An
expired or invalid liquefied gas tax decals shall be removed before installing
a new decal or transferring ownership of the motor vehicle.
(j) Refunds; transfer of decal. If a motor vehicle bearing
a liquefied gas tax decal is sold, transferred, destroyed, or the liquefied
gas carburetor system (regulator or fuel supply tank) is removed from the
motor vehicle the owner is entitled to a refund of the unused portion of the
advanced taxes paid for the decal year. The owner must submit to the comptroller
the liquefied gas tax decal with an affidavit identifying the motor vehicle
and circumstances for requesting a refund. The comptroller shall refund that
portion of the tax payment that corresponds to the number of complete months
remaining in the decal year.
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 May 14, 2004.
TRD-200403271
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.747
The Comptroller of Public Accounts proposes a new §3.747,
concerning trip permit in lieu of interstate trucker license. The new rule
incorporates legislative changes in House Bill 2458, 78th Legislature, 2003,
to add Tax Code, Chapter 162, relating to motor fuel taxes and the repeal
of Tax Code, Chapter 153. The new rule provides qualification for a trip permit,
conditions for trip permit use, procedures for obtaining trip permit, and
limitations on the use of trip permits.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Manager,
Tax Policy Division, P.O. Box 13528, Austin, Texas, 78711.
The new rule is proposed under 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 Tax Code, Title
2.
The new rule implements Tax Code, §§162.003, 162.106, 162.110,
162.207, and 162.211
§3.747.Trip Permit in Lieu of Interstate Trucker License. (Tax Code, §§162.003, 162.106, 162.110, 162.207, and 162.211)
(a)
This rule applies only to motor fuel transactions that
take place on or after January 1, 2004. Motor fuel transactions that occur
prior to January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter L.
(b)
Who may qualify. A person entering Texas for commercial
purposes with a motor vehicle that has two axles and a registered gross weight
in excess of 26,000 pounds; or has three or more axles, or is used in combination
and the registered gross weight of the combination exceeds 26,000 pounds,
may purchase a temporary trip permit in lieu of the required interstate trucker
license or registration under a multistate tax agreement (International Fuel
Tax Agreement) if no more than five entries into the state are made during
a calendar year.
(c)
Conditions.
(1)
A trip permit must be obtained before or at the time of
entry into Texas.
(2)
The trip permit is valid for 20 days from date of purchase.
(3)
The trip permit may be used for only one entry into the
state.
(d)
Procedures.
(1)
A fee of $50 for the trip permit shall be paid to the Texas
comptroller.
(2)
The fee may be paid in the form of a cashier's check or
a money order delivered by mail or wire service to the Texas comptroller's
office, Austin.
(3)
The receipt from the cashier's check or money order shall
be marked "trip permit" and, identify the motor vehicle by license plate number
or the manufacture's vehicle identification number.
(4)
The receipt must be carried in the vehicle for which the
tax payment is made.
(e)
Limitations. Persons who make more than five entries in
a calendar year must obtain an interstate trucker license or register under
a multistate tax agreement (International Fuel Tax Agreement).
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 May 14, 2004.
TRD-200403272
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
34 TAC §3.748
The Comptroller of Public Accounts proposes a new §3.748,
concerning signed statements for purchasing dyed diesel fuel tax free. The
new rule incorporates legislative changes in House Bill 2458, 78th Legislature,
2003, to add Tax Code, Chapter 162, relating to motor fuel taxes and the repeal
of Tax Code, Chapter 153. The new rule provides registration for end user
numbers, sets out the content of a signed statement, and describes the limitations
on the use of signed statements.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under 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
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Manager,
Tax Policy Division, P.O. Box 13528, Austin, Texas, 78711.
The new rule is proposed under Tax Code, §111.002, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of Tax Code, Title 2.
The new rule implements Tax Code, §162.206.
§3.748.Signed Statements for Purchasing Dyed Diesel Fuel Tax Free. (Tax Code, §162.206)
(a)
This rule applies only to motor fuel transactions that
take place on or after January 1, 2004. Motor fuel transactions that occur
prior to January 1, 2004, will be governed by sections in Texas Administrative
Code, Title 34, Part 1, Chapter 3, Subchapter L.
(b)
End User Number. A person who wants to use a signed statement
to purchase dyed diesel fuel tax free for use in nonhighway equipment must
apply to the comptroller for an End User Number. The comptroller will issue
to a qualified applicant an End User Number with a prefix of DD (for non-agriculture
off road equipment) or AG (for agriculture off road equipment) depending on
the manner in which the applicant will use the dyed diesel fuel. A person
cannot use a signed statement to purchase tax-free dyed diesel fuel unless
the person holds an End User Number issued by the comptroller.
(c)
Signed Statement. A person with a valid End User Number
may purchase dyed diesel fuel tax free for nonhighway use by providing the
seller with a signed statement subject to the limitations that are stated
in paragraphs (2), (3) and (4) of this subsection. Copies of the blank signed
statements are available for inspection at the office of the Texas Register.
Copies may be obtained from the Comptroller of Public Accounts, P.O. Box 13528,
Austin, Texas 78711-3528 or requested by calling 512/463-4600, or our toll-free
number 1-800-252-1383. (From a Telecommunication Device for the Deaf (TDD)
only, call 512/463-4621 or 1-800-248-4099 toll free) Taxpayers may download
copies at www.window.state.tx.us.
(1)
The signed statement must include the purchaser's End User
Number, must be signed by the buyer or the buyer's authorized representative,
and must specify that:
(A)
only dyed diesel fuel will be purchased using the signed
statement;
(B)
all dyed diesel fuel will be used by the buyer and will
not be resold; and
(C)
none of the dyed diesel fuel will be delivered into the
fuel supply tanks of motor vehicles operated on public highways.
(2)
A person issued an End User Number beginning with DD may
buy, and a licensed diesel fuel supplier, permissive supplier, or distributor
may sell, dyed diesel fuel tax free using a signed statement subject to the
following limitations:
(A)
not more than 7,400 gallons of dyed diesel fuel may be
purchased or sold in a single delivery; or
(B)
not more that 10,000 gallons of dyed diesel fuel may be
purchased or sold to a purchaser during a month. The purchase, sale, or delivery
that causes the 10,000 gallon limit to be exceeded during a month is not taxable.
Any subsequent purchase, sale, or delivery made during the same month is taxable.
(3)
A person who has been issued an end user number beginning
with DD and who uses the dyed diesel fuel exclusively in the original production
of oil and gas, or to increase the production of oil and gas, must obtain
a letter of exception authorizing the person to exceed the 10,000 gallon limit.
Examples of uses that may occur in the original production or to increase
production of oil and gas include the use of dyed diesel fuel to drill, fracture,
perforate, squeeze cement, acidize, log, plug back, complete, plug and abandon,
install a casing liner, pull or reset a casing liner, swab, drill out a plug,
jet, pack gravel or workover, and perform a hot oil treatment on a formation.
Oil and gas production does not include maintaining the site, mowing, painting,
gauging tanks, changing pumps, performing rod or tubing jobs, fishing for
rods or tubing, repairing a tubing leak, changing a packer or anchor, performing
hot oil or water treatment on casing, tubing or flow lines, and transporting.
A person who uses dyed diesel fuel exclusively in the original production
of oil and gas or to increase the production of oil and gas, may buy, and
a licensed diesel fuel supplier, permissive supplier, or distributor may sell,
dyed diesel fuel tax free by using a letter of exception and a signed statement,
subject to the following limitations:
(A)
not more than 7,400 gallons of dyed diesel fuel may be
purchased or sold in a single delivery; or
(B)
not more than 25,000 gallons of dyed diesel fuel may be
purchased or sold to a purchaser during a calendar month. The purchase, sale,
or delivery that causes the 25,000 gallon limit to be exceeded during a calendar
month is not taxable. Any subsequent purchase, sale, or delivery made during
the same calendar month is taxable.
(4)
A person who has been issued an end user number beginning
with AG and who uses dyed diesel fuel exclusively for an agricultural purpose
as described in Tax Code, §162.001, may buy, and a diesel fuel licensed
supplier, permissive supplier, or distributor may sell, dyed diesel fuel tax
free using a signed statement subject to the following limitations:
(A)
not more that 7,400 gallons of dyed diesel fuel may be
purchased or sold in a single delivery; or
(B) not more than 25,000 gallons of dyed diesel fuel may be
purchased or sold to an end user during a calendar month. The purchase, sale,
or delivery that causes the 25,000 gallon limit to be exceeded during a calendar
month is not taxable. Any subsequent purchase, sale, or delivery made during
the same calendar month is taxable.
Figure: 34 TAC §3.748(c)(4)(B)
(d) A person who exceeds the limitations in subsection (c)
shall be required to obtain a dyed diesel fuel bonded user license.
(e) A separate operating division of a corporation may apply
for and receive an End User Number to buy dyed diesel fuel tax free using
a signed statement if the division:
(1) does not resell the fuel;
(2) consumes the fuel; and
(3) maintains separate storage apart from other corporate divisions.
(f)
The signed statement remains in effect until:
(1)
it is revoked in writing by either the buyer or seller;
or
(2)
the comptroller notifies the supplier or distributor in
writing or by means of electronic transmission that the buyer may no longer
make tax-free purchases.
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 May 14, 2004.
TRD-200403273
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 475-0387
(a)
] Records required.
(b)
] Failure to keep adequate records.
(c)
] Information required.
(a)
] Application for exemption.
In order to purchase gasoline or diesel fuel at a reduced tax rate, a transit
company must submit to the comptroller an affidavit stating:
(b)
] Exemption certificate. After
review and approval of the affidavit, the comptroller shall issue to that
transit company an exemption certificate which may be reproduced for suppliers
or distributors. No fuel may be sold at a reduced rate unless a copy of the
exemption certificate is presented to the supplier or distributor. The exemption
certificate issued to the transit company by the comptroller shall be valid
until cancelled by the company or revoked by the comptroller.
(a)
] Exclusive use. Exclusive use
by a public school district or commercial transportation company means use
of fuel only in motor vehicles or other equipment that:
(b)
] Refunds. A person may file
a claim for refund of taxes paid on gasoline or diesel fuel used off the highway,
for certain resale, for export from Texas, for loss caused by fire, theft,
or accident, and for the provision of transportation services to public school
districts.
(c)
] Time limitation. A claim for
refund must be filed before the expiration of the following time limitations,
as provided by Tax Code, §153.121 and §153.224:
(d)
] Filing forms and documentation.
Each type of claim for refund must be filed on a form that the comptroller
furnishes, and documentation of the identification of each vehicle or type
of equipment in which the fuel was used and other information to fully substantiate
the claim must be maintained. For refund purposes, the original invoice may
be a copy of the original impression if the copy has been stamped "Customer
Original Invoice," "Original for Tax Purposes," or similar wording. If a copy
is so stamped, the original and all other copies must then be stamped "Not
Good for Tax Purposes" or similar wording. Invoices of original impression
submitted in support of refund claims must be without the above wording stamped
or imprinted. Refund claims must further comply with the following requirements:
(c)(1)
]
of this section is determined by the date of the first incident of a multiple
incident loss that totals 100 gallons or more. A claim for refund for loss
by fire, theft, or accident shall be accompanied by fire department, police
department, or regulatory agency reports as appropriate.
(a)
] Definition. "Incidental travel"
on the public highway means those infrequent and unscheduled trips that are
insignificant to the total operation of the motor vehicle.
(b)
] Requirements. Bonded diesel
users are required to remit the tax due on diesel fuel used for incidental
travel of motor vehicles at a rate of 1/4 gallon per mile traveled on the
public highway.
(c)
] Records. Bonded diesel users
shall maintain a record showing the date and miles traveled on each on-highway
trip in addition to the other records required of a bonded user.
(a)
] Use of decal. A person operating
a motor vehicle that is required to be licensed in Texas for use on the public
highways of Texas and is powered by natural gas, methane, ethane, propane,
butane, or a mixture of those gases, including a motor vehicle equipped to
use liquefied gas interchangeably with another motor fuel, must:
(b)
] Application. Each person must
submit an annual application to the comptroller for each vehicle. Applications
for the following year should be submitted during the month of expiration
of the current decal. An ending odometer reading must be provided on the renewal
application. In the absence of an ending odometer reading, the previous year's
mileage of the motor vehicle will be presumed to be at least 15,000 miles.
(c)
] Exceptions.
(d)
] Rate schedule.
(e)
] New or newly converted vehicles.
A liquefied gas tax decal for a Class A-F motor vehicle shall be initially
issued on the basis of estimated miles that will be driven during the one-year
period following the date the decal is issued.
(f)
] Display of decal.
(g)
] Special use vehicles. Vehicles
required to be licensed for highway use but whose main purpose, design, and
use is off the highway may renew a liquefied gas decal for a rate less than
the mileage indicated on the odometer if a record or log indicating the miles
traveled on the highway by the vehicle is maintained and attached to the renewal
application.
(a)
] Metering devices. The comptroller
will accept the use of metering devices as a basis for determining the quantity
of gasoline or diesel fuel consumed in the operation of auxiliary power units
or power take-off equipment mounted on a motor vehicle.
(b)
] Design specifications. The
meters shall be designed to separately measure the fuel used to propel the
motor vehicle from the fuel used in the power take-off or auxiliary power
unit.
(c)
] Disallowance of tax credit
or refunds. It is expressly provided that tax credits or tax refunds may be
disallowed on gasoline or diesel fuel measured and recorded by any metering
device, the operation of which is not maintained within the maintenance tolerance
stated herein, or any case where the owner or operator fails to keep the records
of the miles traveled and fuel consumed in each such motor vehicle as set
out below:
(a)
] Dealer's permit required. Liquefied
gas interstate truckers that are registered under a multistate tax agreement
and that maintain bulk storage of liquefied gas for delivery into motor vehicles
described under the definition of "interstate trucker" in the Tax Code, §153.001,
must secure a separate liquefied gas dealer's permit.
(b)
] Delivery of liquefied gas.
(c)
] Report. Taxable deliveries
of liquefied gas must be reported on the Texas Liquefied Gas Dealer Report
in the same reporting period in which the taxable delivery was made.
(d)
] Interstate trucker permit required.
As of July 1, 1995, a permitted liquefied gas dealer who operates a motor
vehicle described under the definition of "interstate trucker" in the Tax
Code, §153.001, must secure a separate liquefied gas interstate trucker's
permit.
(a)
] Who may qualify. A person entering
Texas for commercial purposes with a motor vehicle that by weight or number
of axles qualifies that person as an interstate trucker must purchase a temporary
trip permit in lieu of the required interstate trucker permit if no more than
five entries into the state are made during a calendar year.
(b)
] Qualified motor vehicles. A
motor vehicle qualifies if it is operated for commercial purposes and:
(c)
] Conditions.
(d)
] Procedures.
(e)
] Limitations. Persons who make
more than five entries must obtain an interstate trucker permit.
(a)
] Signed statement numbers. A
person who wants to use a signed statement to purchase dyed diesel fuel tax
free for use in nonagricultural, nonhighway equipment must apply to the comptroller
for an End User Number. A person who wants to use a signed statement to purchase
dyed or undyed diesel fuel tax free for exclusive use in agricultural, nonhighway
equipment must apply to the comptroller for an Agricultural Exemption Number.
A person cannot use a signed statement to purchase tax-free diesel fuel unless
the person holds an End User Number or Agricultural Exemption Number that
the comptroller has issued.
(b)
] End User Number. A person may
purchase dyed diesel fuel tax free for nonagricultural, nonhighway use by
providing the seller with a signed statement that meets the requirements in
paragraph (1) and subject to the limitations that are stated in paragraph
(2) and (3) of this subsection. Copies of the blank signed statements are
available for inspection at the office of the Texas Register. Copies may be
obtained from the Comptroller of Public Accounts, P.O. Box 13528, Austin,
Texas 78711-3528 or requested by calling 512/463-4600, or our toll-free number
1-800-252-1383. (From a Telecommunication Device for the Deaf (TDD) only,
call 512/463-4621 or 1-800-248-4099 toll free) Taxpayers may download copies
at www.window.state.tx.us.
(c)
] Agricultural Exemption Number.
A person may purchase dyed or undyed diesel fuel tax free for use exclusively
in agricultural, nonhighway equipment by providing the seller with a signed
statement that meets the requirements that are stated in paragraph (1) of
this subsection and subject to the limitations that are stated in this subsection.
Copies of the blank signed statements are available for inspection at the
office of the Texas Register. Copies may be obtained from the Comptroller
of Public Accounts, P.O. Box 13528, Austin, Texas 78711-3528 or requested
by calling 512/463-4600, or our toll-free number 1-800-252-1383. (From a Telecommunication
Device for the Deaf (TDD) only, call 1-800-248-4099 toll free. In Austin,
the local TDD number is 463-4621.) Taxpayers may download copies at www.window.state.tx.us.
(d)
] A division of a corporation
may also use a signed statement to buy diesel fuel tax free if the division:
subsections (b) or (c)
] of this section;
(e)
] The signed statement remains
in effect until:
(f)
] The signed statement must be
signed by the buyer or the buyer's authorized representative.
(g)
] A permitted jobber may purchase
dyed diesel fuel using a signed statement under subsection
(c)
[
(b)
] of this section only if the fuel is for the jobber's own use and
not for resale. A permitted jobber may not sell diesel fuel tax free by accepting
a signed statement.
(a)
] Manifest requirements. The
transportation of motor fuel as cargo shall be recorded on a cargo manifest
or shipping document that is issued at the time the motor fuel is delivered
into a cargo tank. The manifest or shipping document shall accompany the cargo
until the motor fuel is resold or removed from the cargo tank, and shall be
retained for four years for audit purposes.
(b)
] Information required. The cargo
manifest or shipping document shall be issued in not less than duplicate and
shall contain the following information:
(c)
] Waybills or bill of lading.
If a carrier transports motor fuel for which a waybill is required under the
regulations of the Texas Railroad Commission, or a bill of lading is required
under the regulations of the United States Department of Transportation, or
if other similar documentation is required by another regulatory agency, these
documents may be used in lieu of the manifest or shipping document prescribed
in this section, so long as the waybill, bill of lading, or similar document
lists the information described in subsection
(c)
[
(b)
]
of this section.
(d)
] Delivery of cargo manifest
or shipping document. One copy of the transporting document shall be delivered
to the purchaser at the time of fuel delivery, and the seller shall retain
one copy. If a common carrier or contract carrier delivers the fuel, the carrier
must also retain one copy.
(e)
] Deliveries at different locations.
Deliveries to the same purchaser at different locations may be construed to
be single deliveries and qualify for temperature adjustment if the total of
all deliveries to that customer is 5,000 gallons or more, and if:
(f)
] Separate deliveries. Deliveries
from more than one cargo tank are presumed to be separate deliveries. This
presumption may be overcome if:
(a)
] Owners or operators of multiple
farms, ranches, or similar tracts of land in the same vicinity may move farm
tractors, combines, and similar self-propelled farm machinery over the public
highways for the purpose of transferring the base of operation of the machinery.
(b)
] Gasoline and diesel fuel used
for travel on the highway for any purpose other than for moving the machinery
from one tract of land to another to change base of operation shall be considered
taxable.
(a)
] Persons qualifying. A nonpermitted
person or permitted person who is not eligible to purchase gasoline tax free,
residing or maintaining a place of business outside the State of Texas and
who purchases 100 gallons or more of gasoline and immediately exports the
entire quantity, may assign his right to claim a refund to the permitted distributor
from whom the gasoline was purchased or to any permitted distributor who has
paid the tax on the gasoline either directly or through another permitted
distributor in Texas.
(b)
] Conditions. When the distributor
has secured from the purchaser proof of export required by the comptroller,
the distributor may file for refund of the tax paid on the gasoline exported
or take credit equal to the gallons exported on any monthly report filed with
the comptroller within one year from the first day of the month following
the date of delivery to the exporter of the gasoline.
(c)
] Documentation.
(d)
] When required. An assignment
of the right to claim a tax refund on tax-paid gasoline exported from Texas
should be executed on sales by the distributor. The proof of export should
be retained by the distributor if a credit is taken for assigned export sales
on monthly gasoline reports. If refund claims are filed, the proof of export
must be submitted with the claim for refund.
(e)
] Assignment form. The assignment
form must be substantially in the form set out as follows.
(a)
] Those who qualify for an agricultural
bonded user permit may obtain a diesel tax prepaid user permit instead, if
they satisfy the requirements for a diesel tax prepaid user permit.
(b)
] To qualify for a diesel tax
prepaid user permit, an applicant must:
(e)
] of this section; and
(c)
] Use for an agricultural nonhighway
purpose means use in nonhighway agricultural equipment, such as a tractor
or combine, on a farm or ranch. Use for an agricultural nonhighway purpose
does not include use in processing, packaging, or marketing of agricultural
products by entities other than the original producer of the agricultural
products. A farm or ranch is one or more tracts of land used, either in whole
or in part, in the production of crops, livestock, and/or other agricultural
products held for sale in the regular course of business. A feed lot, dairy
farm, poultry farm, commercial orchard, commercial nursery, timber operation
or similar commercial agricultural operation is a farm or ranch. Timber operations
include the production of timber, land preparation, planting, maintenance,
and gathering of trees that are commonly grown for commercial timber. An agricultural
use includes wildlife management as defined by the Tax Code, §23.51(7).
A home garden is not a farm or ranch.
(d)
] An application for a diesel
tax prepaid user permit must be made to the comptroller for each vehicle.
Permits must be renewed every 12 months.
(e)] The cost of the permit shall
be determined according to the following schedule:
(f)
] Following are the requirements
for a nonrefundable credit.
(g)
] A claim for a nonrefundable
credit must be filed on a form that the comptroller furnishes.
(a)
] Imports.
(b)
] Exports and export sales.
(c)
] Diversion Number. An importer
or exporter who diverts the delivery of a load of gasoline or diesel fuel
being transported by truck from the destination state or country that is preprinted
on the shipping document that has been issued for that fuel to another state
or country must obtain a diversion number from the comptroller. A diversion
number must be obtained within 72 hours before or after the diversion. The
importer, exporter, or common or contract carrier must write the diversion
number on the shipping document issued for that fuel.
(a)
] Definition. "Resale" of a gasoline
and diesel fuel means to purchase the fuel with the intent of selling the
fuel to consumers or others.
(b)
] Conditions. Any person other
than a permitted distributor or permitted supplier purchasing 5,000 gross
gallons or more in a single delivery, or in lesser quantities where required
by city ordinance, must furnish the seller with a signed statement stating
that the fuel purchased is for resale in order to qualify for temperature
adjustment. The statement must contain the following information:
(c)
] Retention. The seller must
retain the statement in his files.
(d)
] Effect. The statement relieves
the seller of the responsibility of furnishing additional proof that purchases
are for resale when taken in good faith and remains in effect until the statement
is revoked in writing by either the purchaser, the seller, or the comptroller.
(e)
] Statement form. The statement
must be substantially in the form set out below or contain information necessary
to substantiate resale and the requirements of subsection
(c)
[(b)] of this section.
(a)
] Basis for temperature adjustment.
For purposes of computation of tax, sales of gasoline and diesel fuel, when
purchased for resale in single deliveries of 5,000 gallons or more, must be
temperature adjusted in volume to 60 degrees Fahrenheit based on the gross
metered gallons.
(b)
] Temperature adjustment method.
For the purpose of conversion of actual gasoline and diesel fuel volume to
equivalent volume at 60 degrees Fahrenheit, Table 6B of revised ASTM-API-IP
Petroleum Measurement Tables may be used in lieu of any conversion table which
the comptroller may issue.
(c)
] Metering.
(d)
] Temperature. The temperature
of gasoline or diesel fuel sold or delivered under the provisions of the Texas
Tax Code, §153.103 or §153.204, must be taken and recorded on the
cargo manifest at the time of loading of the product. The temperature may
be taken by either in-line thermometers or other devices designed to accurately
measure the temperature of the delivered fuel at the time of loading.
(e)
] Testing and accuracy of meters
and thermometers or other devices designed to accurately measure the temperature
of fuel. Meters must be tested each 90 days or after 5 million gallons through-put,
whichever occurs first. The accuracy of any meter being used must be maintained
within of 1% of correct volume during all loading or unloading operations.
The tests of meters shall be determined by the methods provided by the American
Society of Mechanical Engineers-American Petroleum Institute for the Installation,
Proving and Operation of Meters in Liquid Hydrocarbon Service. Thermometers
or other devices designed to accurately measure the temperature of fuel must
be tested each 90 days and must conform to standards set by the American Society
of Mechanical Engineers-American Petroleum Institute or National Bureau of
Standards.
(f)
] Records. A record of all tests
must be maintained, open for examination by the comptroller, for a period
of four years.
(g)
] Posting of results. The results
of the most recent tests on all meters and thermometers or temperature measuring
devices being used must be posted in a conspicuous place at each terminal
where the tests are required.
(a)
] Bad debt credit.
(b)
] Credit card sales.
(c)
] Penalty and interest.
(d)
] Collection of 100% penalty
on certain bad checks.
(a)(2)-(4)
] of this section. When notifying the
comptroller of such an occurrence, the distributor or supplier must furnish
the comptroller with a photocopy of both sides of the returned check.
(a)
] Reports required.
(b)
] Due dates.
(c)
] Bonding requirements. Bonded
users of diesel fuel reporting annually will be required to post security
in the amount of two times the annual tax liability on taxable uses of diesel
fuel. The minimum bond is $10,000. The bond may be waived if it is determined
that it is not necessary to protect the state.
(d)
] Qualifications.
(e)
] Exemptions. Subsections
(b), (c), and (e)
[
(a), (b), and (d)
] of this section do not
apply to interstate truckers who are registered under a multistate tax agreement.
Reports, due dates and bonding requirements are determined by the multistate
tax agreement for interstate truckers registered under the multistate agreement.
(f)
] Liquefied gas reports. Permitted
liquefied gas dealers who are also liquefied gas interstate truckers registered
under a multistate tax agreement must file their liquefied gas dealer report
with the same frequency that they report their interstate trucker operations
under the multistate tax agreement.
(a)
] Application. To purchase gasoline
or diesel fuel less the state tax and not prepay the liquefied gas tax for
vehicles equipped to use liquefied gas, a commercial transportation company
providing transportation services to a public school district in Texas must
submit to the comptroller an affidavit stating:
(b)
] Exception letter. After review
and approval of the affidavit, the comptroller shall issue to the company
a letter of exception specifying gasoline and/or diesel fuel used to provide
transportation services to a public school district. The letter of exception
may be reproduced for diesel fuel suppliers and gasoline distributors. An
exception letter shall be issued to the company for specific vehicles operated
on liquefied gas which letter may be furnished inspectors when a liquefied
gas-powered bus is undergoing a safety inspection and to liquefied gas dealers
when purchasing liquefied gas to be placed into the fuel supply tank of the
bus.
(c)
] Records required. A commercial
transportation company providing transportation services to a public school
district shall keep records (separately for tax-free and tax-paid fuels) showing:
(d)
] Taxable use. A commercial transportation
company forfeits its right to purchase fuel tax free if:
(e)
] Cancellation or completion
of contract. A commercial transportation company shall report to the comptroller
within five days of the cancellation or completion of a contract with a public
school district:
(f)
] Charter trips. A commercial
transportation company that charters for special events on a round-trip basis
for a public school district may claim a refund for the fuel used in the vehicle.
(c)(5)
] of this section shall also be maintained for each charter trip.
(g)
] Refunds. A commercial transportation
company providing transportation services to a public school district may
file a claim for refund of state taxes paid on gasoline and diesel fuel used
for such transportation purposes.
(a)
] Registration. A common or contract
carrier transporting gasoline or diesel fuel by truck in Texas is required
to register with the comptroller (see §3.171 of this title (relating
to Records Required; Information Required)).
(b)
] Report required. Every calendar
quarter a common or contract carrier must report to the comptroller information
relating to the interstate and intrastate transportation of gasoline and diesel
fuel by truck. A common or contract carrier that does not receive a report
form or does not receive the correct report form from the comptroller is not
relieved of the responsibility of filing the report.
(c)
] Due date. The common or contract
carrier report is due on the 25th day of the month following the end of each
calendar quarter. The due date for the quarter ending September 30, 2000 is
extended to January 25, 2001. Common or contract carriers must report information
regarding the interstate and intrastate transportation of gasoline and diesel
fuel by truck during September 2000 on the fourth quarter 2000 report, which
is due on or before January 25, 2001.
(d)
] Administrative remedies for
violation of Tax Code, Chapter 153, Subchapter A.
(a)
] Definitions. The following
words and terms, when used in this section, shall have the following meanings,
unless the context clearly indicates otherwise.
(b)
] Diesel fuel tax exception.
The tax imposed on the first sale or use of diesel fuel in this state does
not apply to the volume of water, fuel ethanol, or biodiesel that is blended
with taxable diesel fuel, when the finished product is clearly identified
on the retail pump, storage tank, and sales invoice as a combination of diesel
fuel and water, fuel ethanol, or biodiesel.
(c)
] Invoice documentation.
(d)
] Notice required on storage
tank and retail pump.
(e)
] Refund of diesel tax paid.
The ultimate consumer who has paid tax on the percentage of product that is
water, fuel ethanol, or biodiesel may file a claim for refund of taxes that
have been paid on the volume of water, fuel ethanol, or biodiesel that is
blended with taxable diesel fuel as provided by §3.173 of this title
(relating to Refunds on Gasoline and Diesel Fuel Tax). The refund claim must
be supported with purchase invoice(s) as described in subsection
(d)
[
(c)
] of this section. The total volume of diesel fuel that
is purchased is presumed to be taxable diesel fuel if the purchase invoice
does not meet the requirements of subsection
(d)
[
(c)
]
of this section.
(f)
] Commercial motor vehicles licensed
under the International Fuel Tax Agreement (IFTA).
(c)
] of this
section. The total volume of diesel fuel that is purchased is presumed to
be taxable diesel fuel if the purchase invoice(s) do not meet the requirements
of subsection
(d)
[
(c)
] of this section.
Subchapter S. MOTOR FUEL TAX