CHAPTER 41 - TAXATION AND DISTRIBUTION OF GASOLINE

AN ACT TO PROVIDE A PORTION OF THE REVENUE NECESSARY FOR THE CONSTRUCTION, RECONSTRUCTION, AND MAINTENANCE OF THE PUBLIC HIGHWAYS OF THE STATE, BY IMPOSING A TAX ON MOTOR FUELS AS HEREIN DEFINED, TO BE COLLECTED AND PAID BY DISTRIBUTORS AS HEREIN DEFINED, WITH CERTAIN RIGHTS TO REFUNDS AS HEREIN SET FORTH, REGULATING THE SALE OF SUCH FUELS, PROVIDING FOR THE REPORTS OF SALES OF SUCH FUELS, FOR THE COLLECTION OF SAID TAX BY THE STATE HIGHWAY DEPARTMENT, AND THE DISPOSITION OF THE REVENUE DERIVED THEREFROM.

WHEREAS, The present system of charging license fees for the regulation of motor vehicles was designed in part to equalize the burden of constructing, reconstructing and maintaining the public roads and highways of the State of Delaware by imposing said burden upon those deriving special benefits therefrom; and

WHEREAS, The method of raising revenue for said purpose, as outlined in this Act, will more equitably and generally distribute the burden; and

WHEREAS, It is deemed that there is a direct relation between the use of highways by motor vehicles and the quantity of motor fuels consumed in furnishing the motive power thereof as well as direct relation between the weight of the motor vehicles using such highways and the distance which such motor vehicles will travel by such motive power per unit of weight; and

WHEREAS, It is deemed that the weight of the motor vehicle and the distance traveled have a direct bearing on the damage to the highways and the wear thereof; and

WHEREAS, It is deemed that the speed at which the motor vehicle is driven over the highways has a direct bearing on the damage to the highways and the wear thereof; and

WHEREAS, Laws now in force have taken into consideration the effect of the weight of a motor vehicle and the speed they attain; and

WHEREAS, It is deemed proper by the Legislature that the aforesaid burden of constructing, reconstructing and maintaining the public roads and highways of the State should be equitably and generally distributed among those who will be benefited more directly by the expenditure of the revenue derived from this Act; and

WHEREAS, Such a result, in the judgment of the Legislature, will be accomplished by levying a tax on the quantity of motor fuel purchased for use in propelling motor vehicles on the public roads and highways of the State, as hereinafter provided; and

WHEREAS, It is considered and deemed that a tax levied upon each gallon of motor fuel purchased for use in motor vehicles is the equivalent of and in its practical effect a license fee and tax upon the motor vehicle itself, and the measure of the use of the highways is in direct relation to the amount of motor fuels consumed in furnishing the motive power of the motor vehicles and, with the license fees and taxes provided by other laws of the State of Delaware, the tax herein provided renders more nearly perfect the proper compensation to be paid by the owners of motor vehicles for the use of facilities provided at great cost for the class for whose needs such vehicles are essential and, in their operation, are peculiarly injurious to the highways of the State; and

WHEREAS, It is found that the practicable effect of the levying of a tax on motor fuels sold by the distributors is that the tax is in fact collected from the consumer, by being added to the price of such fuel, and the burden of the tax paid by the distributor is passed on to and paid and borne by such ultimate consumer, and accordingly, that the consumer who uses such motor fuel in motor vehicles and for the operation thereof is in practical effect paying a license fee and tax upon the motor vehicle itself; and

WHEREAS, It is deemed equitable and proper that persons purchasing motor fuels for purposes other than consumption and use in furnishing the propelling power for motor vehicles used or intended to be used in whole or in part upon the highways of this State should have refunded to them any money which they may be required to pay by reason of the tax provided for by this Act; and

WHEREAS, The successful operation of such motor vehicles over the public roads and highways of the State depends in large measure upon the proper construction, reconstruction and maintenance of such roads and highways; now, therefore,

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. Definitions:--The following words, terms and phrases in this Act are, for the purposes hereof, defined as follows:

(a) "Motor Vehicles" shall mean and include all automotive or self-propelled vehicles, engines or machines, which are operated or propelled by internal combustion of gasoline, distillate or other volatile or inflammable liquid fuels.

(b) "Motor Fuel" shall mean and include any substance or combination of substances which is intended to be or is capable of being used for the purpose of propelling or running by combustion any internal combustion engine and sold or used for that purpose, except the products commonly known as kerosene and/or distillate or petroleum products of lower gravity (Baume Scale) when not used to propel a motor vehicle or for compounding or combining with any motor fuel.

(c) "Person" shall mean and include any person or persons, partnership, firm, association or corporation.

(d) The term "distributor" shall include any person, association of persons, firm or corporation, wherever resident or located, who imports or causes to be imported into the State motor fuels as herein defined, for use, distribution, storage, or sale after the same reach the State; and also any person, association of persons, firm or corporation who produces, refines, or manufactures or compounds, or causes to be produced, refined, manufactured or compounded motor fuels as herein defined within the State.

Section 2. Licensing of Filling Station Dealers:--Every person engaged in the retail sale of motor fuels shall, before engaging in said business procure from the State Highway Department a license for each establishment operated by such person; such license shall be issued by the State Highway Department and shall expire on the 30th day of June next following, subject to such reasonable regulations as the State Highway Department shall provide. Every person desiring to continue to engage in the retail sale of motor fuel shall annually thereafter on the first day of July procure from the State Highway Department a license for such establishment operated by such person, which shall expire on the thirtieth day of June next following, subject to such reasonable regulations as the State Highway Department shall provide. A license fee of two dollars ($2.00) shall be paid for the issuing of every such license and the State Highway Department shall supply a certificate, which the licensee shall publicly display in a manner to be regulated by the State Highway Department.

The owner or operator of every filling station shall keep a complete and accurate record of the number of gallons of motor fuel purchased or received, from whom and the date received, and such record shall be prepared in the form of report, the form of which shall be prescribed by the State Highway Department and the same shall be made monthly on the fifteenth day of each month following the date of purchase or receipt, and verified and mailed in to the State Highway Department. Such reports shall be in duplicate and the duplicate shall be retained by the filling station for a period of two years. It shall be offered for inspection at any time upon the demand of the ,State Highway Department or its agents.

Section 3. Application for License; Contents; Licensing of Distributors:--It shall be unlawful for any distributor to receive, use, sell or distribute any motor fuel or to engage in business within this State unless such distributor is the holder of an uncancelled license issued by the State Highway Department to engage in such business. To procure such license every distributor shall file with the State Highway Department an application upon oath and in such form as the State Highway Department may prescribe, setting forth:

(a) The name under which the distributor will transact business within the State of Delaware;

(b) The location, with street number address, of its principal office or place of business within this State;

(c) The name and complete residence address of the owner or the names and addresses of the partners, if such distributor is a partnership, or the names and addresses of the principal officers, if such distributor is a corporation or association; and if such distributor is a corporation organized under the laws of another state, territory or country, or the laws of the United States, it shall also file with such application a certified copy of the certificate issued by the Secretary of State of Delaware showing that such corporation is authorized to transact business in the State of Delaware.

Upon the filing of an application for a license, and concurrently therewith, a bond of the character stipulated and in the amount provided for in Section 4 of this Act, shall be filed with the State Highway Department. No license shall be issued upon any application unless accompanied by such bond.

In the event that any application for a license to transact business as a distributor in the State of Delaware shall be filed by any person whose license shall at any time theretofore have been cancelled for cause, or in case the State Highway Department shall be of the opinion that such application is not filed in good faith, or that such application is filed by some person as a subterfuge for the real person in interest whose license or registration shall theretofore have been cancelled for cause, then and in any of said events the State Highway Department after a hearing, of which the applicant shall have been given five (5) days' notice in writing and at which said applicant shall have the right to appear in person or by a counsel and present testimony, shall have and is hereby given the right and authority to refuse to issue to such person a license to transact business as a distributor in the State of Delaware.

Upon the filing of the application for a license, a filing fee of five dollars ($5.00) shall be paid to the State Highway Department.

The application in proper form having been accepted for filing, the filing fee paid, and the bond having been accepted and approved, the State Highway Department shall, except as herein provided, issue to such distributor a license to transact business as a distributor in the State of Delaware, which license shall expire on the thirtieth day of June next following, subject to cancellation of such license as provided by law. Every distributor desiring to continue engaged as such distributor shall annually thereafter on the first day of July procure from the State Highway Department a license to transact business as a distributor, which shall expire on the thirtieth day of June next following, subject to cancellation of such license as provided by law.

Each distributor shall be assigned a license number upon qualifying for a license hereunder, and the State Highway Department shall issue to each such licensee separate license cards for each tank truck operated or caused to be operated by such distributor. Such license card shall indicate the number so assigned the distributor, the motor number of the truck authorized to be operated under such license card, and such other information as the State Highway Department may prescribe. Such license card shall be conspicuously displayed on the tank truck to which it is assigned and any distributor operating or causing to be operated a tank truck in this State, conveying or transporting motor fuel, without such license card shall be guilty of a misdemeanor and upon conviction thereof shall be subject to a fine of not less than ten dollars ($10.00) nor more than one hundred dollars ($100.00) or to be confined in jail not less than ten (10) days nor more than thirty (30) days, or both.

The license so issued by the State Highway Department shall not be assignable, and shall be valid only for the distributor in whose name issued, and shall be displayed conspicuously in the principal place of business of said distributor in the State of Delaware.

The State Highway Department shall keep and file all applications and bonds with an alphabetical index thereof, together with a record of all licensed distributors.

Section 4. Bond Required of Licensed Distributor:--Every distributor shall file with the State Highway Department a bond in the approximate sum of three times the average monthly motor fuel tax due by such distributor during the next preceding twelve calendar months under the existing law of this State; provided that in no case shall such bond be less than five thousand dollars ($5,000.00) nor more than twenty thousand dollars ($20,000.00); provided further that any person becoming a distributor as heretofore defined, subsequent to the effective date of this Act, or any distributor who has not paid motor fuel taxes now imposed by law for the twelve months next preceding the adoption of this Act, shall file a bond in the minimum of five thousand dollars ($5,000.00). Such bond shall be in such form as may be approved by the State Highway Department, shall be executed by a Surety Company to be approved by the State Highway Department and duly licensed to do business under the laws of the State of Delaware; shall be payable to the State of Delaware, and be conditioned uposi the prompt filing of true reports and the payment by such distributor to the State Highway Department of any and all motor fuel taxes which are now or which may hereafter be levied or imposed by the State of Delaware, together with any and all penalties and/or interest thereon, and generally upon faithful compliance with the provisions of this Act.

In the event that liability upon the bond thus filed by the distributor with the State Highway Department shall be discharged or reduced, whether by judgment rendered, payment made or otherwise, or if in the opinion of the State Highway Department any surety on the bond theretofore given shall have become unsatisfactory or unacceptable, then the State Highway Department may require the filing of a new bond with like surety as hereinbefore provided in the same amount, failing which, the State Highway Department shall forthwith cancel the license of said distributor. If such new bond shall be furnished by said distributor as above provided, the State Highway Department shall cancel and surrender the bond of said distributor for which such new bond shall be substituted, provided, however, that such bond shall not be cancelled if any liability shall have accrued under the provisions thereof which shall be still outstanding.

In the event that the State Highway Department, after a hearing of which the distributor shall be given five (5) days' notice in writing, shall decide that the amount of the existing bond is insufficient to insure payment to the State of Delaware of the amount of the tax and any penalties and interest for which said .distributor is or may at any time become liable, then the distributor shall forthwith upon the written demand of the State Highway Department file an additional bond in the same manner and form with like security thereon as hereinbefore provided; provided further that the total amount of any such additional bond as well as the bond required under the provisions of the first paragraph of this Section shall not exceed the maximum of twenty thousand dollars ($20,000.00) and the State Highway Department shall forthwith cancel the license certificate of any distributor failing to file an additional bond as herein provided.

Any surety on any bond furnished by any distributor as above provided shall be released and discharged from any and all liability to the State of Delaware accruing on such bond after the expiration of sixty (60) days from the date upon which such surety shall have lodged with the State Highway Department, written request to be released and discharged. Provided, however, that such request shall not operate to relieve, release or discharge such surety from any liability already accrued, or which shall accrue, before the expiration of said sixty day period. The State Highway Department shall promptly on receipt of notice of such request notify the distributor who furnished such bond, and unless such distributor shall on or before the expiration of such sixty day period file with the State Highway Department a new bond in the amount and form hereinbefore in this Section provided, the State Highway Department shall forthwith cancel the license of said distributor.

Section 5. Power of State Highway Department to Cancel Licenses; Surrender of Bond:--If a distributor shall at any time file a false monthly report of the data or information required by this Act, or shall fail, refuse or neglect to file the monthly report required by this Act, or to pay the full amount of the Tax as required by this Act, the State Highway Department may forthwith cancel the license of said distributor and notify such distributor in writing of such cancellation by registered mail to the last known address of such distributor appearing on the files of the State Highway Department.

The State Highway Department is hereby given the power to cancel any license hitherto or hereafter issued to any distributor, such cancellation to become effective sixty (60) days from the date of receipt of the written request of such distributor for cancellation thereof, or said State Highway Department may cancel the license of any distributor upon sixty (60) days' notice mailed to the last known address of such distributor if it shall be ascertained that the person to whom such license has been issued is no longer engaged in the receipt, use or sale of motor fuel as a distributor, and has not been so engaged for the period of six (6) months prior to such cancellation. But no such license shall be cancelled upon the request of any distributor until and unless the distributor shall, prior to the date of such cancellation, have paid to the State of Delaware all motor fuel taxes payable under the laws of the State of Delaware, together with any and all penalties and fines accruing by reason of any failure on the part of said distributor to make accurate reports as required by this Act and/or to pay said taxes and/or penalties.

In the event that the license of any distributor shall be cancelled by the $tate Highway Department as hereinbefore in this Section provided, and in the further event that said distributor shall have paid to the State of Delaware all taxes, penalties and interest due and payable by it under the motor fuel laws of the State of Delaware, then the State Highway Department shall cancel and surrender the bond theretofore filed by said distributor.

Section 6. Amount of Tax; Reports; Payments; Exemptions: --(a) There is hereby levied a tax of four (4) cents per gallon on all motor fuel as herein defined, which is sold and delivered or used in this State and is not under the protection of the interstate commerce clause of the Constitution of the United States; provided, that the tax herein imposed and assessed shall be collected by and paid to the State of Delaware but once in respect to any motor fuel. Nothing herein shall be construed to exempt from the tax any dealer in motor fuel on the motor fuel used in making such distribution. The tax herein levied shall be collected in the manner hereinafter provided.

(b) On or before the last business day of each calendar month, each distributor of motor fuel shall have on file in the office of the State Highway Department a statement, on form prepared by the said State Highway Department, which shall be sworn to by one of the principal officers in the case of a domestic corporation, or by the resident general agent or attorney-in-fact; by chief accountant or officer in case of a foreign corporation; by the managing agent or owner in case of a firm or association of persons; or by the distributor in all other cases; which statement shall show the quantity of motor fuel on hand on the first and the last days of the preceding calendar month; the quantity of motor fuel received, produced, manufactured, refined or compounded during the preceding calendar month; and the quantities of motor fuel sold and delivered or used within the State of Delaware during the preceding calendar month, and such other information as the State Highway Department may require, and such distributor shall, at the time of rendering such report, pay to the State Highway Department the tax or taxes herein levied on all motor fuel sold and delivered or used within the State of Delaware during the preceding calendar month. Provided, however, that no distributor shall pay such tax on motor fuel received by such distributor from a point within the State from another licensed distibutor who has paid or assumed the payment of such tax.

(c) Any shrinkage or evaporation as indicated by the monthly report of a distributor amounting to more than one per cent of gallons on hand at the beginning of the month plus gallons received during the month shall be assumed to have been sold or used and thereby taxable.

(d) Bills shall be rendered to all purchasers of motor fuels by distributors selling the same. Such bills shall contain a statement thereon in a conspicuous place that the liability to the State for the tax or taxes hereby imposed has been assumed, and that the distributor will pay the tax or taxes herein on or before the last day of the following month.

(e) Motor fuel used by the United States or any of the governmental agencies thereof shall not be subject to tax hereunder.

(f) The State Highway Department shall have authority to prescribe reasonable rules and regulations for the carrying out of this Act and all forms of reports required by this Act.

(g) The distributors' taxable sales shall, for the purpose of this Act, include all motor fuel delivered by their bulk plants on consignment, and all motor fuel delivered to retail filling stations owned or operated by the distributors.

Section 7. Distribution of Proceeds:--The said license tax in respect to motor fuels sold or used in any calendar month shall be paid on or before the last day of the next succeeding month to the State Highway Department who shall receipt to the dealer therefor. All money received by the State Highway Department under the provisions of this Act shall be deposited with the State Treasurer not later than the close of the business day next following such receipt. The State Treasurer shall create a special fund of the money so received by him and shall disburse the same as other moneys are disbursed and applied by the State Treasurer under the provisions of Section 14 of Chapter 63, Volume 29, of the Laws.' of Delaware, as amended by Chapter 54, Volume 32, of the Laws of Delaware, provided, however, that the State Treasurer, out of said money, shall retain in his hands at all times such sum, not exceeding $3,000.00, as, in his judgment, shall be sufficient to enable him to pay promptly all claims for refunds as in this Act provided for.

Section 8. Penalty for Failure to Report or Pay Taxes Promptly:--When any distributor shall fail to have his monthly report on file in the office of the State Highway Department on or before the last business day of each calendar month, or when such distributor fails to have on file in the office aforesaid the data outlined in Section 6 of this Act in such monthly report, or when such distributor shall fail to pay the State Highway Department the amount of taxes due to the State of Delaware, when the same shall be payable, a penalty of twenty-five per cent (25%) shall be added to the amount of the tax due, and said penalty of twenty-five per cent (25%) shall immediately accrue, and thereafter said tax and penalty shall bear interest at the rate of one per cent. (1%) per month until the same is paid.

Section 9. State Highway Department May Estimate Motor Fuel Received:--Whenever any distributor shall neglect or refuse to make and file any report for any calendar month as required by this Act or shall file an incorrect or fraudulent report, the State Highway Department shall determine, from any information obtainable in its office, or elsewhere, the number of gallons of motor fuel with respect to which the distributor has incurred liability under the motor fuel laws of the State of Delaware.

In any action or proceeding for the collection of the motor fuel tax and/or any penalties or interest imposed in connection therewith, an assessment by the State Highway Department of the amount of the tax due and/or interest or penalties due to the State shall constitute prima facie evidence of the claim of the State, and the burden of proof shall be upon the distributor to show that the assessment was incorrect and contrary to law.

Section 10. Report From Persons Not Distributors; Contents; Penalty for Failure to Submit Report:--Every person purchasing or otherwise acquiring motor fuel and/or kerosene in tank car or cargo lots and selling, using, or otherwise disposing of the same not required by the provisions of this Act to be licensed as a distributor in motor fuel, shall file a statement setting forth the name under which such person is transacting business within the State of Delaware, the location with street number address of such person's principal office or place of business within the State, the name and address of the owner, or the names and addresses of the partners if such person is a partnership, or the names and addresses of the principal officers if such person is a corporation or association, and, on or before the last business day of each calendar month, such person shall, on forms prescribed by the State Highway Department, have on file in the office of the State Highway Department a report of all purchases or other acquisition and sales or other disposition of motor fuel and/or kerosene during the next preceding calendar month, giving a record of each tank car or cargo lot. Such report shall set forth from whom each tank car or cargo lot was purchased or otherwise acquired, point of shipment, to whom sold or shipped, point of delivery, date of shipment, the name of the carrier, the initials and number of the car, and the number of gallons contained in such tank car, if shipped by rail, and the name and owner of the boat, barge or vessel, and the number of gallons contained therein, if shipped by water, and shall contain any other additional information the State Highway Department may require relative to such motor fuel and/or kerosene.

When any person, not required by the provision of this Act to register as a distributor in motor fuel, purchasing or otherwise acquiring motor fuel and/or kerosene in tank car or cargo lots and selling or otherwise disposing of the same, shall fail to have his monthly report on file in the office of the State Highway Department on or before the last business day of each following calendar month, or when such person shall fail to submit in each monthly report the date required by this Act, such person shall be guilty of a misdemeanor and shall be fined an amount not greater than one hundred dollars ($100.00) for the first offense, and shall be fined an amount not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) for each subsequent offense.

Section 11. Reports From Carriers Transporting Motor Fuel, Kerosene or Similar Products:--Every railroad company, every street car, suburban or interurban railroad company, every pipe line company, every water transportation company, and every common carrier transporting motor fuel, kerosene, casinghead gasoline, natural gasoline, naphtha, or distillate, either in interstate or in intrastate commerce, to points within Delaware, and every person transporting motor fuel and/or kerosene by whatever manner to a point in Delaware from any point outside of said State, shall report under oath to the State Highway Department on forms prescribed by said State Highway Department, all deliveries of motor fuel and/or kerosene so made to points within Delaware.

Such reports shall cover monthly periods, shall be on file in the office of the State Highway Department on or before the last business day of the calendar month immediately following the month covered by the report, shall show the name and address of the person to whom the deliveries of motor fuel and/or kerosene have actually and in fact been made, the name and address of the originally named consignee, if motor fuel and/or kerosene has been delivered to any other than the originally named consignee, the point of origin, the point of delivery, the date of delivery, and the number and initials of each tank car and the number of gallons contained therein, if shipped by rail; the name of the boat barge or vessel, and the number of gallons contained therein, if shipped by water; the license number of each tank truck and the number of gallons contained therein, if transported by motor truck; if delivered by other means, the manner in which such delivery is made, and such other additional information relative to shipments of motor fuel as the State Highway Department may require.

Section 12, Retention of Records by Distributors and Other Persons:--Each distributor shall maintain and keep, for a period of two (2) years, such record or records of motor fuel received, used, sold and/or delivered within this State by such distributor, together with invoices, bills of lading, and other pertinent records and papers as may be required by the State Highway Department for the reasonable administration of this Act.

It shall be the duty of every person purchasing or receiving motor fuel taxable under this Act from a distributor for the purpose of resale, to maintain and keep for a period of one (1) year a record of motor fuel received, the amount of tax paid to the distributor as part of the purchase price, together with delivery tickets, invoices, and bills of lading, and such other records as the State Highway Department shall require.

Any person violating any of the provisions of this Section shall be guilty of a misdemeanor and shall, upon conviction thereof, be sentenced to pay a fine of not more than one thousand dollars ($1,000.00) and the costs of prosecution, or to be imprisoned for a period of not more than one (1) year, or both, in the discretion of the court.

Section 13. Inspection of Records:--The record of all purchases, receipts, sales, distribution and use of motor fuel of every distributor shall at all times during the business hours of the day be subjected to inspection by the State Highway Department or by any agent or employee duly authorized by it.

The said State Highway Department shall make an inspection of the said records of all purchases, receipts, sales, distribution and use of motor fuel of every distributor at least once in each year, by or through such agent or employee as may be duly authorized by it, for the purpose of ascertaining whether said distributors are complying with the provisions of this Act. In case it should be found that such distributors are not complying with the provisions of this Act, the State Highway Department shall report to the Attorney General in what respects said distributors are failing to so comply with the provisions of this Act.

Section 14. Discontinuance or Transfer of Business; Penalty: --Whenever a person ceases to engage in business as a distributor within the State of Delaware by reason of the discontinuance, sale or transfer of the business of such distributor, it shall be the duty of such distributor to notify the State Highway Department in writing at least ten (10) days prior to the time the discontinuance, sale or transfer takes effect. Such notice shall give the date of discontinuance, and, in the event of a sale or transfer of the business, the date thereof and the name and address of the purchaser or transferee thereof. All taxes, penalties, and interest under this Act not yet due and payable under the provisions of Section 6 hereof shall, notwithstanding such provisions, become due and payable concurrently with such discontinuance, sale or transfer, and it shall be the duty of any such distributor concurrently with such discontinuance, -sale or transfer, to make a report and pay all such taxes, interest, and penalties, and to surrender to the State Highway Department the license theretofore issued to said distributor by the State Highway Department.

Unless the notice above provided for shall have been given to the State Highway Department, such purchaser or transferee shall be liable to the State of Delaware for the amount of all taxes, penalties, and interest under this Act accrued against any such distributor so selling or transferring his business, on the date of such sale or transfer, but only to the extent of the value of the property and business thereby acquired from such distributor.

Any person violating any of the provisions of this Section shall be guilty of a misdemeanor and shall upon conviction thereof be sentenced to pay a fine of not less than fifty dollars ($50.00) nor more than three hundred dollars ($300.00) and the costs of the prosecution or to be imprisoned for a period of not more than one (1) year or both in the discretion of the court.

Section 15. When Tax Payment Is in Default; Procedure:--If any distributor shall be in default for more than ten (10) days in the payment of any taxes and/or penalties thereon payable under the terms of this Act, the State Highway Department shall issue a warrant under its official seal, and signed by its chairman, directed to the sheriff of any county of the State, commanding said sheriff to levy upon and sell the goods and chattels of such distributor, without exemption, found within his jurisdiction, for the payment of the amount of such delinquency, with the added penalties and interest and the cost of executing the warrant, and to return such warrant to the State Highway Department and to pay said State Highway Department the money collected by virtue thereof within the time to be therein specified, which shall not be less than twenty (20) nor more than sixty (60) days from the date of the warrant. The Sheriff to whom any such warrant shall be directed shall proceed upon the same in all respects and with like effect and in the same manner as prescribed by law in respect to executions issued against goods and chattels upon judgments by a court of record, and shall be entitled to the same fees for his services in executing the warrant to be collected in the same manner; provided, that nothing in this Section shall be construed as forfeiting or waiving any rights to collect such taxes by an action upon any bond that may be filed with the State Highway Department under the provisions of this Act, or by suit or otherwise, and in case such suit, action or other proceeding shall have been instituted for the collection of said tax, such suit, action or other proceeding shall not be construed as waiving any other right herein provided.

Section 16. Refunds:--The State Treasurer shall refund the tax paid on motor fuels upon receipt of written authorization from the State Highway Department so to do, which written authorization shall be given under the following conditions:

(a) Motor fuel sold and delivered to and used by the State of Delaware and every political subdivision thereof;

(b) Motor fuel used by any person for the purpose of operating stationary gas engines, tractors, motor boats, air planes or air crafts, or any other purpose except in motor vehicles operated or intended to be operated in whole or in part upon any of the public highways of the State.

When motor fuel is sold to a person as described above in (a) and (b) who shall claim to be entitled to a refund of the tax hereunder, the seller of such motor fuel shall make out in triplicate, on forms prescribed and supplied by the State Highway Department, a statement setting forth the name and address of the purchaser, the number of gallons of motor fuel so sold, the proposed use for which such motor fuel is purchased, and such other information as the State Highway Department shall require. The original of such statements shall be mailed by the seller to the State Highway Department not later than the tenth day of the following month. The duplicate of such statement shall be given to the purchaser at the time of sale. The triplicate shall be retained by the seller in his place of business for a period of two years.

All applications for refunds must be filed with the State Highway Department within ninety (90) days from the date of purchase or invoice of the motor fuel with respect to which refund is claimed.

All licensed distributors and retail filling stations shall return to the State Highway Department all unused forms which have been furnished them by the State Highway Department along with their license in the event of their discontinuing business or upon the cancellation of their license by the State Highway Department.

Such application shall be in such form as shall be prescribed by the State Highway Department, shall be sworn to, and shall state the quantity of motor fuel with respect to which refund is claimed, the purpose for which said motor fuel was used, date of purchase, from whom purchased, and such other information as the State Highway Department shall require.

Such application shall be accompanied by the original invoice showing such purchase, together with evidence of the payment thereof, and also the duplicate statement furnished by the seller at the time of sale above described.

The above conditions having been fully complied with, the State Highway Department shall determine the amount of the refund due on such application and authorize the State Treasurer in writing to pay such amount within thirty (30) days from the time of filing of the application for refund.

Section 17. Failure to File Statement; False Statement; Doing Business Without License, etc.; Penalties:--Any person who shall refuse or neglect to make any statement, report or return required by the provisions of this Act, or who shall knowingly make, or shall aid or assist any other person in making, a false statement in a report to the State Highway Department or in connection with an application for refund of any tax, or who shall sell any motor fuel purchased by such person from any person other than a duly licensed distributor upon which the tax herein imposed shall not be paid, shall be guilty of a misdemeanor, and, when no other penalty of fine and/or imprisonment is imposed by the provisions of other Sections of this Act, shall, upon conviction thereof, be punished by a fine of not less than one hundred dollars ($100.00) nor more than One Thousand dollars ($1,000.00) or imprisonment for a term of not less than thirty (30) days and not more than one (1) year, or both such fine and imprisonment in the discretion of the Court.

Section 18. Exchange of Information Among the States:--The State Highway Department shall, upon request duly received from the officials to whom are entrusted the enforcement of the motor fuel tax laws of any other State, forward to such officials any information which it may have in its possession relative to the manufacture, receipt, sale, use, transportation and/or shipment by any person of motor fuel.

Section 19. Delivery of Motor Fuel Prohibited in Certain Cases; Penalty:--The delivery of motor fuel from a tank truck to the motor fuel tank of a motor vehicle is prohibited, except in cases of emergency. Any person violating this Section shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not more than fifty dollars (050.00), or imprisoned for a period of not more than thirty (30) days, or both in the discretion of the court.

Section 20. That it shall be unlawful for the State Treasurer or State Highway Department, or any of his or its agents, deputies, assistants or employees, to disclose, except when required so to do in a Court of Law, or when it is deemed necessary so to do for the purpose of carrying out the provisions of this Act, the amount of tax paid in pursuance of the terms of this Act by any dealer or dealers, or any other information contained in the reports filed by any dealer or dealers under the terms of this Act, and any person violating the provisions of this Section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punishable by a fine of not more than five hundred dollars ($500.00) or by imprisonment for not more than three months, or by both such fine and imprisonment in the discretion of the Court.

Section 21. Penalties:--Any person violating any of the provisions of this Act, a penalty for which is not otherwise provided, or who shall fail or refuse to pay the tax imposed by this Act, or who shall engage in business in this State as a distributor without being the holder of an uncancelled license to engage in such business, or who shall make any false statement in any application, report or statement required by this Act, or who shall refuse to permit the State Highway Department or any deputy to examine records as provided by this Act, or who shall fail to keep proper records of quantities of motor fuel received, produced, refined, manufactured, compounded, sold, used and/or delivered in this State as required by this Act, or who shall collect or cause to be repaid to any person any tax not being entitled to the same under the provisions of this Act, shall be guilty of a misdemeanor, and, upon conviction thereof, shall for the first offense be fined not more than five hundred dollars ($500.00) or imprisoned for a period not exceeding six (6) months, or both in the discretion of the court, and for a second and any subsequent offense shall be fined not more than one thousand dollars ($1,000.00) or imprisoned for a period not exceeding one year, or both in the discretion of the Court; provided that in addition to the penalty imposed in conformity to the above the defendant shall be required to pay all taxes and penalties due the State under this Act and/or pay to the State any other moneys wrongfully withheld or illegally refunded. Each day or part thereof during which any person shall engage in business as a distributor without being the holder of an uncancelled license shall constitute a separate offense within the meaning of this Section.

Section 22. Effective Date:--This Act shall become effective on July first, nineteen hundred thirty-five. Prior to that date, every distributor as defined herein shall secure a license as provided in this Act.

Section 23. Constitutionality:--If any part or parts, section subsection, sentence, clause or phrase of this Act is for any reason declared unconstitutional, such decision shall not affect the validity or meaning of the remaining portions of this Act.

Section 24. Chapter 31, Volume 38, Laws of Delaware, as amended, and all other Acts or parts of Acts inconsistent with this Act are hereby repealed.

Section 25. The provisions of all Acts hereby repealed, as heretofore existing, shall be continued in full force and effect as to all taxes and all interest thereon, all penalties and all interest thereon, all assessments, proceedings, suits, criminal or civil, and matters arising out of or in connection with any reports or payments required to be made for the period ending June 30, 1935, and all prior periods.

Approved April 18, 1935.