CHAPTER 107

AN ACT TO AMEND CHAPTER 51, TITLE 30, DELAWARE CODE, RELATING TO MOTOR FUEL TAX.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. That Chapter 51, Title 30, Delaware Code, is amended by repealing and striking out all of Subchapters I, II, and III thereof and enacting and substituting in lieu thereof the following:

SUBCHAPTER I. GASOLINE

§ 5101. Definitions

As used in this chapter--

"Distributor" includes any person, association of persons, firm or corporation, wherever resident or located, who imports or causes to be imported into the State gasoline as defined in this section for use, distribution, storage, or sale after the gasoline reaches 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 gasoline as defined in this section within the State;

"Gasoline" includes all products commonly or commercially known or sold as gasoline, including casinghead gasoline, natural gasoline, aviation gasoline, all flammable liquids, composed of a mixture of selected hydrocarbons expressly manufactured and blended for the purpose of effectively and efficiently operating spark-ignited internal combusion engines. The term "gasoline" does not include liquefied gases such as propane, butane, or pentane, or mixtures of the same, or any product-

(i) Having an ASTM Designation D908 research octane number of less than 70, or

(ii) Having a Reid vapor pressure at 100° F. of more than 30 pounds;

"Highway Department" means the State Highway Department.

§ 5102. License for retail sale of gasoline; requirement, issuance, term, fee and display

Every person engaged in the retail sale of gasoline shall, before engaging in such business procure from the Highway Department a license for each establishment operated by such person. Such license shall be issued by the Highway Department and shall expire on the 30th day of June next following, subject to such reasonable regulations as the Highway Department shall provide. Every person desiring to continue to engage in the retail sale of gasoline shall annually thereafter on the first day of July procure from the Highway Department a license for such establishment operated by such person, which shall expire on the 30th day of June next following, subject to such reasonable regulations as the Highway Department shall provide. A license fee of $2 shall be paid for the issuing of every such license and the Highway Department shall supply a certificate, which the licensee shall publicly display in a manner to be regulated by the Highway Department.

§ 5103. License for distributor of gasoline; requirement, application, bond and fee

(a) No distributor shall receive, use, sell or distribute any gasoline or engage in business within this State unless such distributor is the holder of an uncancelled license issued by the Highway Department to engage in such business. To procure such license, a distributor shall file with the Highway Department an application under oath and in such form as the Highway Department may prescribe, setting forth--

(1) The name under which the distributor will transact business within the State;

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

(3) 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.

(b) 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 5107 of this title, shall be filed with the Highway Department. No license shall be issued upon any application unless accompanied by such bond.

(c) Upon the filing of the application for a license, a filing fee of $5 shall be paid to the Highway Department.

§ 5104. Issuance of distributor's license; term of license

The application, referred to in Section 5103 of this title, in proper form having been accepted for filing, the filing fee paid, and the bond having been accepted and approved, the Highway Department shall, except as herein provided, issue to such distributor a license to transact business as a distributor in this State. Such license shall be valid until suspended or revoked for cause or otherwise cancelled. Each distributor shall be assigned a license number upon qualifying for a license under this subchapter. The Highway Department shall publish and furnish to all licensed distributors a list of all licensed distributors and a monthly supplement thereto.

§ 5105. Refusal of distributor's license; grounds

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

§ 5106. Assignability of distributor's license

The license issued under this subchapter by the Highway Department shall not be assignable, and is valid only for the distributor in whose name it was issued.

§ 5107. Bond of licensed distributor

(a) Every distributor shall file with the Highway Department a bond in the approximate sum of three times the average monthly gasoline tax due or estimated to be due, by such distributor under the existing law of the State. In no case shall such bond be less than $5,000 nor more than $20,000. Every bond filed with and approved by the Highway Department shall without the necessity of periodic renewal, remain in force and effect until such time as the distributor's license is revoked for cause, or otherwise cancelled or surrendered.

() The bond shall be in such form as may be approved by the Highway Department, and shall be executed by a surety company to be approved by the Highway Department and duly licensed to do business under the laws of this State. The bond shall be payable to the State, and be conditioned upon the prompt filing of true reports and the payment by such distributor to the Highway Department of any and all gasoline taxes levied or imposed by this State, together with any and all penalties and/or interest thereon, and generally upon faithful compliance with the provisions of this chapter.

(a) If liability upon the bond thus filed by the distributor with the Highway Department shall be discharged or reduced, whether by judgment rendered, payment made or otherwise, or if in the opinion of the Highway Department any surety on the bond theretofore given shall have become unsatisfactory or unacceptable, then the Highway Department may require the filing of a new bond with like surety as hereinbefore provided in the same amount, failing which, the Highway Department shall forthwith cancel the license of the distributor. If the new bond is furnished by the distributor as above provided, the Highway Department shall cancel and surrender the bond of the 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.

(d) If the Highway Department, after a hearing of which the distributor shall be given 5 days' notice in writing, shall decide that the amount of the existing bond is insufficient to insure payment to the State of the amount of the tax and any penalties and interest for which the distributor is or may at any time become liable, then the distributor shall forthwith upon the written demand of the Highway Department file an additional bond in the same manner and form with like security thereon as hereinbefore provided. The total amount of any such additional bond, as well as the bond required under the provisions of subsection (a) of this section, shall not exceed the maximum of $20,000, and the Highway Department shall forthwith cancel the license certificate of any distributor failing to file an additional bond as herein provided.

(e) 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 accruing on such bond after the expiration of 60 days from the date upon which such surety shall have lodged with the Highway Department, written request to be released and discharged. 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 60-day period. The 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 60-day period file with the Highway Department a new bond in the amount and form hereinbefore in this section provided, the Highway Department shall forthwith cancel the license of the distributor.

§ 5108. Revocation, cancellation and surrender of License and Bond

The Highway Department may revoke the license of any distributor for reasonable cause. Before revoking any such license the Highway Department shall notify the distributor to show cause within 60 days of the date of the notice why such license should not be revoked; provided, however, that at any time prior to or pending such hearing the Highway Department may, in the exercise of reasonable discretion, suspend such license.

The Highway Department shall cancel any license to act as a distributor immediately upon surrender thereof by the holder. If the license of any distributor shall be cancelled by the Highway Department and if the distributor shall have paid to the State of Delaware all taxes, penalties and interest due and payable by it under the gasoline laws of this State, then the Highway Department shall cancel and surrender the bond or other surety theretofore filed by said distributor. The Highway Department shall promptly notify all licensed distributors of any such cancellation.

§ 5109. Records of Highway Department

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

§ 5110. Levy and rate of tax

There is levied a tax of 6 cents per gallon on all gasoline which is sold or used in this State. The tax herein imposed shall be collected by and paid to the State of Delaware but once in respect to any gasoline. Nothing in this section shall be construed to exempt from the tax any distributor of gasoline with respect to gasoline used in making such distribution. The tax herein levied shall be collected in the manner hereinafter provided.

§ 5111. Exempt sales of Gasoline

The tax imposed by this chapter shall not apply to gasoline:

(a) Sold to the United States or any of the governmental agencies thereof;

(b) Sold or delivered under the protection of the interstate commerce clause of the Constitution of the United States;

(c) Sold by a distributor to another distributor;

(d) Sold by a distributor to a purchaser duly registered with, or licensed by, the taxing authorities of another state as a distributor or dealer duly authorized to collect and pay gasoline taxes to such other state for immediate exportation from this State into such other state, provided the distributor making such sale complies with all regulations of the Highway Department relating thereto.

§ 5112. Distributor's Taxable Sales of Gasoline: What is included

The distributor's taxable sales shall, for the purpose of this chapter, include all gasoline delivered to retail dealers, including gasoline delivered to retail outlets on consignment or to retail outlets owned or operated by the distributor.

§ 5113. Monthly reports of distributors

(a) On or before the next to last business day of each calendar month, each distributor of gasoline shall file with the office of the Highway Department, a statement on a form prepared by the Highway Department, which shall show the quantity of gasoline on hand on the first and last days of the preceding calendar month; the quantity of gasoline received, produced, manufactured, refined, or compounded during the preceding calendar month; and the quantities of gasoline sold, delivered or used within this State during the preceding calendar month, and such other information as the Highway Department may require. The fact that a distributor's name is signed to such statement shall be prima facie evidence for all purposes that the report was actually signed by such distributor or his duly authorized agent. Such statement shall contain a declaration by the person making the same, to the effect that the statements contained therein are true and are made under penalties of perjury, which declaration shall have the same force and effect as a verification of the return and shall be in lieu of such verification.

(b) The monthly statement, or payment of tax as provided in Section 5114, will be considered to have been duly and timely filed if such statement or payment is deposited in the United States mail with postage prepaid in sufficient time to reach the Highway Department in the ordinary course of such mails on or before the next to last business day of a given calendar month.

§ 5114. Payment of tax by distributor

At the time of rendering each report required by Section 5113 of this title, the distributor shall pay to the Highway Department the tax or taxes levied by this chapter on all gasoline sold or used within this State during the preceding calendar month.

§ 5115. Penalties for failure to file report or pay tax when due

When any distributor fails to file his monthly report with the Highway Department as required by Section 5113 of this title, or when such distributor fails to pay the Highway Department the amount of taxes due to this State as required by Section 5114 of this title, a penalty of 25 percent shall be added to the amount of the tax due, and the penalty of 25 percent shall immediately accrue, and thereafter the tax and penalty shall bear interest at the rate of 1 percent per month until the same is paid; however, the Highway Department may waive the 25 percent penalty when it is established to the satisfaction of the Highway Department that failure to file the monthly report or pay the tax by the next to last business day of the month was not with intent to violate the law.

§ 5116. Estimate by Highway Department in absence of tax report

(a) Whenever any distributor neglects or refuses to make and file any report for any calendar month as required by this chapter or files an incorrect or fraudulent report, the Highway Department shall determine, from any information obtainable in its office, or elsewhere, the number of gallons of gasoline with respect to which the distributor has incurred liability under the gasoline laws of this State.

(b) In any action or proceeding for the collection of the gasoline tax and/or penalties or interest imposed in connection therewith, an assessment by the 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.

§ 5117. Collection by Highway Department of delinquent taxes

If any distributor shall be in default for more than 10 days in payment of any taxes and/or penalties thereon payable under the terms of this chapter, the 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 the 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 Highway Department and to pay the Highway Department the money collected by virtue thereof within the time to be therein specified, which shall not be less than 20 nor more than 60 days from the date of the warrant. The sheriff to whom any such warrant is 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 the 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 Highway Department under the provisions of this chapter, 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.

§ 5118. Rules and regulations

The Highway Department may prescribe reasonable rules and regulations for the carrying out of this chapter and all forms of reports required by this chapter.

§ 5119. Deposit of receipts by Highway Department

All money received by the Highway Department under the provisions of this chapter shall be deposited to the credit of the general fund of the State not later than the close of the business day next following such receipt.

§ 5120. Refunds of motor fuel taxes

(a) The State Treasurer shall refund out of the general fund of this State the tax paid on gasoline upon receipt of written authorization from the Highway Department so to do, which written authorization shall be given under the following conditions:

(1) Gasoline sold and delivered to and used by the State and every political subdivision thereof;

(2) Gasoline used by any person for the purpose of operating stationary gas engines, tractors, motor boats, airplanes 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.

(3) Gasoline sold and delivered to and used by Volunteer Fire Companies in any of their vehicles, and gasoline sold and delivered to and used by Veteran Organizations in their ambulances when such ambulances are used on a voluntary basis.

(b) Such application shall be in such form as shall be prescribed by the Highway Department, shall be under the penalties of perjury, and shall state the quantity of gasoline with respect to which refund is claimed, the purpose for which said gasoline was used, date of purchase, from whom purchased, and such other information as the Highway Department shall require.

(c) Such application shall be accompanied by the original invoice showing such purchase, together with evidence of the payment thereof.

(d) All applications for refunds must be filed with the Highway Department within 12 calendar months from the date of the purchase or invoice of the gasoline with respect to which a tax refund is claimed.

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

§ 5121. Reports from carriers transporting gasoline

(a) Every railroad company, suburban or interurban railroad company, pipe line company, water transportation company, and common carrier transporting gasoline, either in interstate or in intrastate commerce, to points within this State, and every person, except distributors, transporting gasoline by whatever manner to a point in this State from any point outside this State, shall report under penalty of perjury to the Highway Department on forms prescribed by the Highway Department all deliveries of gasoline so made to points within this State.

(b) The reports shall cover monthly periods, shall be on file in the office of the Highway Department on or before the next to 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 gasoline have actually and in fact been made, and such other additional information relative to shipments of gasoline as the Highway Department may require.

§ 5122. Retention of records by distributors; penalties

(a) Each distributor shall maintain and keep, for a period of two years, such records of gasoline 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 Highway Department for the reasonable administration of this chapter.

(b) Whoever violates any of the provisions of this section shall be fined not more than $1,000, and the costs of prosecution, or imprisoned not more than one year, or both.

§ 5123. Inspection of records

(a) The record of all purchases, receipts, sales, distribution and use of gasoline of every distributor shall at all times during the business hours of the day be subject to inspection by the Highway Department or by any agent or employee duly authorized by it.

(b) The Highway Department shall make an inspection of the records of all purchases, receipts, sales, distribution and use of gasoline 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 the distributors are complying with the provisions of this chapter. If it is found that the distributors are not complying with the provisions of this chapter, the Highway Department shall report to the Attorney General in what respects the distributors are failing to so comply with the provisions of this chapter.

§ 5124. Discontinuance, sale or transfer of business by distributor; penalties

(a) Whenever a person ceases to engage in business as a distributor within this State by reason of the discontinuance, sale or transfer of the business of such distributor, the distributor shall notify the Highway Department in writing at least 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 chapter not yet due and payable under the provisions of this chapter shall, notwithstanding such provisions, become due and payable concurrently with the discontinuance, sale or transfer, and the distributor shall concurrently with such discontinuance, sale or transfer, make a report and pay all such taxes, interest, and penalties, and surrender to the Highway Department the license theretofore issued to the distributor by the Highway Department.

(b) Unless the notice provided for in subsection (a) of this section shall have been given to the Highway Department, the purchaser or transferee shall be liable to this State for the amount of all taxes, penalties, and interest under this chapter, 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.

(c) Whoever violates any of the provisions of this section shall be fined not less than $50 nor more than $300 and the costs of the prosecution, or imprisoned not more than one year, or both.

§ 5125. Delivery from tank truck to motor vehicle; penalty

The delivery of gasoline from a tank truck to the gasoline tank of a motor vehicle is prohibited except in cases of emergency. Whoever violates this section shall be fined not more than $50 or imprisoned not more than 30 days, or both.

§ 5126. Exchange of information among the states

The Highway Department shall, upon request duly received from the officials to whom are entrusted the enforcement of the gasoline tax laws of any other state, or the Federal Government, 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 gasoline.

§ 5127. Reports of Department to Distributors

The Highway Department shall furnish monthly to all distributors a statement of all tax paid gallons of gasoline sold by distributors in this State.

§ 5128. Violations and penalties

(a) Whoever violates any provision of this chapter a penalty for which is not otherwise provided, or fails or refuses to pay the tax imposed by this chapter, or engages in business in this State as a distributor without being the holder of an uncancelled license to engage in such business, or makes any false statement in any application, report or statement required by this chapter, or refuses to permit the Highway Department or any deputy to examine records as provided by this chapter, or fails to keep proper records of quantities of gasoline received, produced, refined, manufactured, compounded, sold, used and/or delivered in this State as required by this chapter, or collects or causes to be repaid to any person any tax not being entitled to the same under the provisions of this chapter, shall for the first offense be fined not more than $500 or imprisoned not more than 6 months, or both, and for a second and any subsequent offense shall be fined not more than $1,000 or imprisoned not more than one year, or both. 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 chapter 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.

(b) Whoever refuses or neglects to make any statement, report or return required by the provisions of this chapter, or knowingly makes, or aids or assists any other person in making, a false statement in a report to the Highway Department or in connection with an application for refund of any tax, or sells any gasoline purchased by such person from any person other than a duly licensed distributor upon which the tax herein imposed shall not be paid, shall, when no other penalty of fine and/or imprisonment is imposed by the provisions of this chapter, be fined not less than $100 nor more than $1,000, or imprisoned not less than 30 days nor more than one year, or both.

SUBCHAPTER II. SPECIAL FUEL

§ 5131. Definitions

As used in this chapter--

(a) "Person" includes every natural person, fiduciary, association, or corporation. Whenever used in any cause prescribing and imposing a fine or imprisonment, or both, the term "person" as applied to an association means and includes the partners or members thereof, and as applied to corporations, the officers thereof.

(b) "Highway Department" means the State Highway Department.

(c) "Highway" means every way or place generally open to the use of the public for the purpose of vehicular travel, notwithstanding that they may be temporarily closed or travel thereon restricted for the purpose of construction, maintenance, repair or reconstruction.

(d) "Motor vehicle" means any vehicle propelled by an internal combustion engine and licensed for operation or operated upon the highways.

(e) "Special fuel" means and includes all combustible gases and liquids suitable for the generation of power for propulsion of motor vehicles, except that it does not include gasoline as defined in Subchapter 1, Section 5101.

(f) "Use" means the receipt, delivery or placing of special fuel by a special fuel user into the fuel supply tank or tanks of any motor vehicle while such vehicle is within this State.

(g) "Special fuel dealer" means any person in the business of handling special fuel who delivers any part thereof into the fuel supply tank or tanks of a motor vehicle not then owned or controlled by him.

(h) "Special fuel user" means the owner or other person responsible for the operation of a motor vehicle at the time special fuel is placed in the fuel supply tank or tanks thereof while such vehicle is within this State.

§ 5132. Tax imposed

There is hereby levied and imposed an excise of 6 cents per gallon on the use (within the meaning of the word "use" as defined herein) of special fuel in any motor vehicle. Said tax, with respect to all special fuel delivered by a special fuel dealer into supply tanks of motor vehicles in this State, shall attach at the time of such delivery and shall be collected by such dealer from the special fuel user and shall be paid over to the Highway Department as hereinafter provided. Said tax, with respect to special fuel acquired by any special fuel user in any manner other than by delivery by a special fuel dealer into a fuel supply tank of a motor vehicle, shall attach at the time of the use (as herein defined) of such fuel and shall be paid over to the Highway Department by the user as hereinafter provided.

§ 5133. Exemptions

The tax imposed by this chapter shall not apply to special fuel sold to or used by:

(a) The United States or any of the governmental agencies thereof;

(b) The State and every political subdivision thereof;

(c) Volunteer Fire Companies in any of their vehicles and Veteran Organizations in their ambulances when such ambulances are used on a voluntary basis.

§ 5134. Special Fuel Dealers' and Special Fuel Users' Licenses

(a) Requited: It shall be unlawful for any person to act as a special fuel dealer in this State unless such person is the holder of an uncancelled special fuel dealer's license issued to him by the Highway Department. Except for special fuel which is delivered by a special fuel dealer into a fuel supply tank of any motor vehicle in this State, the use (as defined herein) of special fuel in this State by any person shall be unlawful unless such person is the holder of an uncancelled special fuel user's license issued to him by the Highway Department. A license fee of $5 shall be paid for the issuing of every such special fuels license.

(b) Application: Application for a special fuel dealer's license or a special fuel user's license shall be made to the Highway Department. A special fuel dealer's license or a special fuel user's license, whichever is applicable, shall be required for each separate place of business or location where special fuels are regularly delivered or placed into the fuel supply tank of a motor vehicle.

(c) Form of Application: The application shall be filed upon a form prepared and furnished by the Highway Department. The application shall contain such information as the Highway deems necessary.

(d) Bond: No special fuel dealer's license or special fuel user's license shall be issued to any person or continued in force unless such person has furnished a surety bond in such forms and amount as the Highway Department may require, but not less than $500, nor more than $20,000 to secure his compliance with this chapter, and the payment of any and all taxes, interest and penalties due and to become due hereunder. Every bond filed with and approved by the Highway Department shall without the necessity of periodic renewal, remain in force and effect until such time as the license is revoked for cause, or otherwise cancelled or surrendered.

The bond shall be in such form as may be approved by the Highway Department, and shall be executed by a surety company to be approved by the Highway Department and duly licensed to do business under the laws of this State. The bond shall be payable to the State, and be conditioned upon the prompt filing of true reports and the payment by such licensee to the Highway Department of any and all special fuel taxes levied or imposed by this State, together with any and all penalties and/or interest thereon, and generally upon faithful compliance with the provisions of this chapter.

If liability upon the bond thus filed by the licensee with the Highway Department shall be discharged or reduced, whether by judgment rendered, payment made or otherwise, or if in the opinion of the Highway Department any surety on the bond theretofore given shall have become unsatisfactory or unacceptable, then the Highway Department may require the filing of a new bond with like surety as hereinbefore provided in the same amount, failing which, the Highway Department shall forthwith cancel the license of the licensee. If the new bond is furnished by the licensee as above provided, the Highway Department shall cancel and surrender the bond of the licensee 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.

If the Highway Department, after a hearing of which the licensee shall be given 5 days' notice in writing, shall decide that the amount of the existing bond is insufficient to insure payment to the State of the amount of the tax and any penalties and interest for which the licensee is or may at any time become liable, then the licensee shall forthwith upon the written demand of the Highway Department file an additional bond in the same manner and form with like security thereon as hereinbefore provided. The total amount of any such additional bond as well as the bond required under the provisions of the first paragraph of this subsection shall not exceed the maximum of $20,000, and the Highway Department shall forthwith cancel the license certificate of any licensee failing to file an additional bond as herein provided.

Any surety on any bond furnished by any licensee as above provided shall be released and discharged from any and all liability to the State accruing on such bond after the expiration of 60 days from the date upon which such surety shall have lodged with the Highway Department, written request to be released and discharged. 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 60-day period. The Highway Department shall promptly on receipt of notice of such request notify the licensee who furnished such bond, and unless such licensee shall on or before the expiration of such 60-day period file with the Highway Department a new bond in the amount and form hereinbefore in this subsection provided, the Highway Department shall forthwith cancel the license of the licensee.

(e) Issuance: Upon receipt of the application and bond in proper form, the Highway Department shall issue to the applicant a license to act as a special fuel dealer or a special fuel user; provided, however, the Highway Department may refuse to issue a special fuel dealer's license or a special fuel user's license to any person: (1) who formerly held either type of license, which, prior to the time of filing application, has been revoked for cause; or (2) who is a subterfuge for the real party in interest whose license, prior to the time of filing application, has been revoked for cause; or (3) upon other sufficient cause being shown. Before such refusal, the Highway Department shall grant the applicant a hearing and shall grant him at least 30 days written notice of the time and place thereof.

(f) Term of License: Each special fuel dealer's license and special fuel user's license shall expire on the 30th day of June next following. Every person desiring to continue as a special fuel dealer or as a licensed special fuel user shall annually thereafter on the 1st day of July procure from the Highway Department such a license, which shall expire on the 30th day of June next following.

(g) Assignment Forbidden: No special fuel dealer's license or special fuel user's license shall be transferable.

(h) Revocation, Cancellation and Surrender of License and Bond: The Highway Department may revoke the license of any special fuel dealer or special fuel user for reasonable cause. Before revoking any such license the Highway Department shall notify the licensee to show cause within 30 days of the date of the notice why such license should not be revoked; provided, however, that at any time prior to and pending such hearing the Highway Department may, in the exercise of reasonable discretion, suspend such license.

The Highway Department shall cancel any license to act as a special fuel dealer or a special fuel user immediately upon surrender thereof by the holder.

§ 5135. Special Fuel Dealers' and Special Fuel Users' Records

(a) Preparation of Records: For each location where special fuel is delivered or placed into the fuel supply tank of a motor vehicle, the special fuel dealer or user making such delivery shall prepare and maintain such records as the Highway Department may reasonably require with respect to all such deliveries, and with respect to inventories, receipts, purchases, and sales or other dispositions of special fuel.

(b) Retention of Records: The records required under this section shall be retained for a minimum period of 2 years, and shall be available, at all reasonable times, for examination by the Highway Department.

§ 5136. Monthly Reports and Payments

(a) Reports: For the purpose of determining the amount of his liability for the tax herein imposed each special fuel dealer and each special fuel user shall file with the Highway Department, on forms prescribed by the Highway Department, a monthly tax report. Such report shall contain a declaration by the person making the same, to the effect that the statements contained therein are true and are made under penalties of perjury, which declaration shall have the same force and effect as a verification of the report and shall be in lieu of such verification. The report shall show, with reference to each location at which special fuel is delivered or placed by such dealer or user into a fuel supply tank of any motor vehicle, such information as the Highway Department may reasonably require for the proper administration and enforcement of this chapter; provided, however, that if a special fuel dealer or user is also a wholesale distributor of special fuel at a location where special fuel is delivered into the supply tank of a motor vehicle, and if separate storage is provided thereat from which special fuel is delivered or placed into fuel supply tanks of motor vehicles, the monthly report to the Highway Department covering such location need not include inventory control data covering bulk storage from which wholesale distribution of special fuel is made. No report need be made by any special fuel user, not licensed as a special fuel dealer, whose entire use of special fuel in this State is limited solely to special fuel delivered into the fuel supply tank of such user's motor vehicle by special fuel dealers. The special fuel dealer or special fuel user shall file the report on or before the next to last business day of the next succeeding calendar month following the monthly period to which it relates.

Such report and payment will be considered to have been duly and timely filed if such report or payment is deposited in the U. S. mail with postage prepaid in sufficient time to reach the Highway Department in the ordinary course of such mails on or before the next to last business day of a given calendar month; provided, however, that for good cause the Highway Department may grant a licensee a reasonable extension of time.

(b) Computation: The tax imposed by this chapter shall be computed by each special fuel dealer or special fuel user by multiplying the tax rate per gallon provided in this chapter by the number of gallons of special fuel delivered or placed by him into the supply tank or tanks of a motor vehicle.

(c) Payments: The monthly tax report shall be accompanied by remittance covering the tax due hereunder on special fuel delivered during the preceding month into the fuel supply tank or tanks of any motor vehicle.

(d) Refusal or Failure to File Report or Pay Tax When Due: In case any special fuel dealer or special fuel user refuses or fails to file a report required by this chapter within the time prescribed by subsection (a) of this section, there is hereby imposed a penalty of $500, or a sum equal to 25% of the tax due, whichever is greater, together with interest at the rate of 1% on the tax due, for each calendar month or fraction thereof during which such refusal or failure continues; provided, however, that if any such special fuel dealer or special fuel user shall establish by a fair preponderance of evidence that his failure to file a report within the time prescribed was due to reasonable cause and was not with intent to violate the law, the Highway Department may waive the penalty provided by this subsection.

(e) Failure to Pay Tax: Where a special fuel dealer or a special fuel user files a report, but fails to pay in whole or in part the tax due hereunder, there shall be added to the amount due and unpaid interest at the rate of 1% per month or fraction thereof from the date such tax was due to the date of payment in full thereof.

(f) Deficiency: If it be determined by the Highway Department that the tax reported by any special fuel dealer or special fuel user is deficient the Highway Department shall proceed to assess the deficiency on the basis of information available to the Highway Department and there shall be added to this deficiency interest at the rate of 1% per month or fraction thereof from the date the return was due.

(g) Determination If No Report Made: If any special fuel dealer or special fuel user, whether or not he is licensed as such, fails, neglects, or refuses to file a special fuel tax report when due, the Highway Department shall, on the basis of information available to it, determine the tax liability of the special fuel dealer or the special fuel user for the period during which no report was filed, and to the tax as thus determined the Highway Department shall add the penalty and interest provided in Section 5136 (d).

An assessment made by the Highway Department pursuant to this subsection or to subsection (f) of this section shall be presumed to be correct, and in any case where the validity of the assessment is questioned, the burden shall be on the person who challenges the assessment to establish by a fair preponderance of the evidence that it is erroneous or excessive as the case may be.

(h) Fraudulent Report: If any special fuel dealer or special fuel user shall file a false or fraudulent report with intent to evade the tax imposed by this chapter, there shall be added to the amount of deficiency determined by the Highway Department a penalty equal to 25% of the deficiency together with interest at 1% per month, or fraction thereof, on such deficiency from the date such tax was due to the date of payment, in addition to all other penalties prescribed by law.

() Limitation: Except in the case of a fraudulent report or of neglect, or refusal to make a report, every deficiency shall be assessed under Section 5136 (f) of this chapter within 2 years after the next to last business day of the next succeeding calendar month following the monthly period for which the amount is proposed to be determined or within 2 years after the report is filed, whichever period expires the later.

§ 5137. Refund of Taxes Erroneously or Illegally Collected

In the event that any taxes, penalties, or interest imposed by this law have been erroneously or illegally collected from a special fuel dealer or user, the Highway Department may permit such special fuel dealer or user to take credit against a subsequent tax report for the amount of the erroneous or illegal overpayment, or shall certify the amount thereof to the State Treasurer who shall thereupon draw a warrant for such certified amount to such special fuel dealer or user. Such refund shall be paid to the special fuel dealer or user forthwith.

No refunds shall be made under the provisions of this section unless a written claim therefor setting forth the circumstances by reason of which such refund shall be allowed, which claim shall be in such form as the Highway Department shall prescribe, and shall be filed with the Highway Department within 12 calendar months from the date of the payment of the taxes erroneously or illegally collected.

§ 5138. Administration

(a) Rules and Regulations: The Highway Department shall enforce the provisions of this chapter, and may prescribe, adopt, and enforce reasonable rules and regulations relating to the administration and enforcement thereof.

(b) Examination of Records: The Highway Department may examine the records of special fuel dealers and special fuel users and make such other investigations as it may deem necessary in the administration and enforcement of this chapter.

() Presumption: For the purpose of enforcing the provisions of this chapter, it shall be prima facie presumed that all special fuel received by a special fuel dealer or a special fuel user into storage and dispensing equipment designed to fuel motor vehicles is to be transferred or delivered by the special fuel dealer or special fuel user into the fuel supply tanks of motor vehicles.

(d) Reciprocal Exchange of Data: The Highway Department shall, upon request from the officials to whom are entrusted the enforcement of the special fuel tax law of any other state, the District of Columbia, the United States, its territories and possessions, the provinces or the Dominion of Canada, forward to such officials any information which it may have relative to the receipt, storage, delivery, sale, use, or other disposition of special fuel by any special fuel dealer or special fuel user, provided such other state or states furnish like information to this State.

(e) Records Open to Public: Reports required by this chapter, exclusive of schedules, itemized statements and other supporting evidence annexed thereto, shall at all reasonable times be open to the public.

§ 5139. Violations and Penalties

(a) Acts Forbidden: It shall be unlawful for any person to:

(1) Refuse, or knowingly and intentionally fail to make and file any statement required by this chapter in the manner or within the time required;

(2) Knowingly and with intent to evade or to aid in the evasion of the tax imposed herein to make any false statement or conceal any material fact in any record, report, or affidavit provided for in this chapter;

(3) Conduct any activities requiring a license under this chapter without a license or after a license has been surrendered, cancelled, or revoked;

(4) Assign or attempt to assign a license to act as a special fuel dealer or a special fuel user;

(5) Knowingly and with intent to evade or to aid in the evasion of the tax imposed herein to receive special fuel in this State into the supply tank or tanks of a motor vehicle from a person not holding a valid license as a special fuel dealer;

(6) Fail to keep and maintain the books and records required by this chapter.

(b) Penalties and Remedies: Any person violating any provision of this section is guilty of a misdemeanor, unless the act is by any other law of this State declared to be a felony, and upon conviction is punishable by a fine of not less than $500 nor more than $1,000, or by imprisonment for not less than 30 days nor more than six months, or by both such fine and imprisonment.

(c) Penalties are Cumulative: The fine and imprisonment provided for in this section shall be in addition to any other penalty imposed by any other provision of this chapter.

SUBCHAPTER III. SEVERABILITY

§ 5151. Severability

If any provision of Subchapter I or Subchapter II or the application thereof to any person or circumstances is held invalid such invalidity shall not effect other provisions or applications of these subchapters which can be given effect without the invalid provision or application, and to this end the provisions of these subchapters are declared to be severable.

Approved July 16, 1963.