CHAPTER 141

FORMERLY

HOUSE BILL NO. 466

AS AMENDED BY

HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 51, SUBCHAPTER 11, TITLE 30, DELAWARE CODE, RELATING TO SPECIAL FUEL.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend §5131, Chapter 51, Title 30, Delaware Code by adding thereto two (2) new paragraphs to read as follows:

"(8) 'Special Fuel Supplier' means any person in the business of handling special fuel on a wholesale or bulk delivery basis who delivers or sells special fuel to a person not licensed as a Special Fuel Dealer or Special Fuel User or not the holder of a valid Special Fuel Tax Exemption Certificate.

(9) 'Special Fuel Tax Exemption Certificate' means a document issued by the Department of Public Safety to a person certifying that said person has no taxable use of special fuel from his own bulk storage tank or tanks."

Section 2. Amend §5132, Chapter 51, Title 30, Delaware Code by deleting said Section in its entirety and substituting in lieu thereof a new §5132 to read as follows:

"§5132. Tax Imposed.

(a) There is hereby levied and imposed a tax of eleven (11) cents per gallon the sale or delivery of special fuel to any special fuel dealer or special fuel user not the holder of a valid Special Fuel Dealer's or Special Fuel User's license. Said tax, with respect to all special fuel delivered by a Special Fuel Supplier into the bulk storage tank or tanks of said dealer or user, shall attach at the time of such delivery and shall be collected by the Supplier from the dealer or user and shall be paid over to the Department of Public Safety as hereinafter provided; also

(b) There is hereby levied and imposed a tax of eleven (11) cents per gallon on the use (within the meaning of the word 'use' as defined herein) of special fuel when such special fuel is delivered into the supply tanks of motor vehicles in this State by a licensed Special Fuel Dealer or a licensed Special Fuel User. Said tax, with respect to all special fuel delivered by a licensed 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 Department of Public Safety as hereinafter provided. Said tax, with respect to special fuel acquired by any licensed Special Fuel User in any manner other than by delivery by a special fuel dealer into the supply tank of a motor vehicle, shall attach at the time of the use (as defined

herein) of such fuel and shall be paid over to the Department of Public Safety by said User as herein provided."

Section 3. Amend §5133, Chapter 51, Title 30, Delaware Code by deleting said Section in its entirety and substituting in lieu thereof a new §5133 to read as follows:

"5133. Exemptions.

(a) The tax imposed by this Chapter shall not apply to special fuel sold to or used by the following persons:

(1) The United States or any governmental agencies thereof;

(2) The State and every political subdivision thereof;

(3) Volunteer fire companies in any of their official vehicles and Veteran or Civic organizations in their ambulances when such ambulances are provided on a voluntary basis;

(4) A person (as defined herein) whose entire use of special fuel is in vehicles not licensed for operation upon the highway.

(b) The Department of Public Safety may, for purposes of identification of the above persons, require than an exemption

certificate issued by the Department of Public Safety be on file with the Department and the Supplier from whom the fuel is purchased. The exemption certificate may be withheld or withdrawn by the Department of Public Safety for just cause."

Section 4. Amend §5134, Chapter 51, Title 30, Delaware Code by striking said Section Title and subsections (a) and (b), in their entirety and substituting in lieu thereof the following:

"§5134. Special Fuel License and Bond.

(a) Required: It shall be unlawful for any person to receive or accept delivery of special fuel into a bulk storage tank or tanks without paying the tax imposed by 5132 of this Chapter unless such person is a holder of a valid Special Fuel Dealer's license or Special Fuel User's license issued to him by the Department of Public Safety. Said license shall require the Dealer or User to report and pay the tax imposed herein directly to the Department of Public Safety. Also, it shall be unlawful for any person to act as a Special Fuel Supplier and collect special fuel tax from an unlicensed dealer or user in this State unless such person is the holder of a valid Special Fuel Supplier's license. A license fee of five dollars ($5.00) shall be received by the Department of Public Safety for the issuing of each such special fuel license.

(b) Application: Application for a special fuel license shall be made to the Department of Public Safety on forms supplied by the Department. A license 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 by a Special Fuel Dealer or Special Fuel User."

Section 5. Amend 5134 (d), Chapter 51, Title 30, Delaware Code, by deleting the phrase "special fuel dealer's license or special fuel user's license" as it appears in the first sentence and substituting in lieu thereof the phrase "special fuel license".

Section 6. Amend 5134 (e), Chapter 51, Title 30, Delaware Code, by striking said subsection in its entirety and substituting in lieu thereof a new subsection (e) to read as follows:

"(e) Issuance: Upon receipt of the application and bond in proper form, the Department of Public Safety shall issue to the applicant a license to act as a Special Fuel Dealer or a Special Fuel User or a Special Fuel Supplier, provided, however, that the Department may refuse to issue a license to any person: (1) who formerly held any 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 Department shall grant the applicant a hearing and shall grant him at least thirty (30) days' written notice of the time and place thereof."

Section 7. Amend 5134 (f), Chapter 51, Title 30, Delaware Code, by deleting said subsection (f) in its entirety and substituting in lieu thereof a new subsection (f) to read as follows:

"(f) Term of License: Each special fuel license shall expire on the 30th day of June. Every person desiring to continue as a Special Fuel Dealer or as a Special Fuel User or as a Special Fuel Supplier shall annually thereafter on the 1st day of July, procure from the Department such a license, which shall expire on the 30th day of June next following."

Section 8. Amend 5134 (g), Chapter 51, Title 30, Delaware Code, by deleting the phrase "special fuel dealer's license or special fuel user's license" and substituting in lieu thereof the phrase "Special Fuel Dealer's license or Special Fuel User's license or Special Fuel Supplier's license".

Section 9. Amend 5134 (h), Chapter 51, Title 30, Delaware Code, by deleting in two places, the phrase "special fuel dealer or special fuel user" and substituting in lieu thereof the phrase "Special Fuel Dealer or Special Fuel User or Special Fuel Supplier".

Section 10. Amend §5135, Chapter 51, Title 30, Delaware Code, by deleting said Section in its entirety and substituting in lieu thereof a new 5135 to read as follows:

"5135. Records.

(a) Preparation of Records: For each location where special fuel is delivered or placed into the fuel supply tank of a motor vehicle by a licensed Special Fuel Dealer or a licensed Special Fuel User, said Dealer or User making such delivery shall prepare and maintain such records as the Department of Public Safety may reasonably require with respect to all such deliveries, and with respect to inventories, receipts, purchases, use and sales or other dispositions of special fuel. Also, each licensed Special Fuel Supplier shall prepare and maintain such records as the Department of Public Safety shall reasonably require with respect to all sales and/or deliveries of special fuel to his customers.

(b) Retention of Records: The records required under this Section shall he retained for a minimum of three (3) years and shall be available at all reasonable times for examination by representatives of the Department."

Section 11. Amend 5136, Chapter 51, Title 30, Delaware Code, by deleting said Section in its entirety and substituting in lieu thereof a new §5136 to read as follows:

"5136. Monthly Reports and Payments.

(a) Reports: For the purpose of determining the amount of his liability for the tax herein imposed, each licensee shall file with the Department of Public Safety on forms prescribed by the Department, a monthly tax report. Such report shall contain a declaration by the person making 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 such information as the Department may reasonably require for the proper administration and enforcement of this Chapter. A licensed Special Fuel Dealer or a licensed Special Fuel User shall file a report for each location at which special fuel is delivered or placed by said Dealer or User into a fuel supply tank of a motor vehicle; provided, however, that if said 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 Department covering such location need not include inventory control data covering bulk storage from which wholesale distribution is made. A licensed Special Fuel Supplier shall file one 'report regardless of the number of locations at which his special fuel is stored or handled.

(a) Due Date: The special fuel licensee shall file the report on or before the twenty-fifth (25th) day of the next succeeding calendar month following the monthly period to which it relates. When the twenty-fifth (25th) day of the month falls on a weekend or State holiday, the due date of the report shall be the next following business day of the State.

Such report and payment shall be considered to have been duly and timely filed if such report or payment is postmarked by the United States Postal Service on or before the due date; provided, however, that for good cause the Secretary of the Department of Public Safety may grant a licensee a reasonable extension of time.

(a) Tax Computation: The tax imposed by this Chapter shall be computed by each licensed Special Fuel Dealer or licensed 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; or, in the case of a Special Fuel Supplier, by the number of gallons of special fuel delivered or sold by him to every person not a licensed Special Fuel Dealer or licensed Special Fuel User.

(d) Payments: The monthly tax report shall be accompanied by remittance covering the tax due hereunder on special fuel as computed in subsection (c) above.

(e) Refusal or Failure to File Report when Due: In case any special fuel licensee refuses or fails to file a report required by this Chapter within the time prescribed by subsection, there is hereby imposed a penalty of five dollars ($5.00) per business day of this State and the tax due shall bear interest at a rate of one percent (1%) per month or fraction thereof until the same is paid; provided, however, that if any such licensee 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 Department may waive all or any part of the penalty provided by this subsection.

(f) Failure to Pay Tax: When a licensee 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 one percent (1%) per month or fraction thereof from the date such tax was due to the date of payment in full thereof.

(g) Deficiency: If it be determined by the Department of Public Safety that the tax reported by any licensee is deficient, the Department shall proceed to assess the deficiency on the basis of information available to the Department and there shall be added to this deficiency interest at the rate of one percent (1%) per month or fraction thereof from the date such tax was due to the date of payment in full thereof.

(h) Determination if no Report is Made: If any person liable for a report under the requirements of this Chapter as a Special Fuel Dealer, Special Fuel User or Special Fuel Supplier, whether or not he is licensed as such, fails, neglects, or refuses to file a special fuel tax report when due, the Department of Public Safety shall, on the basis of information available to it, determine the tax liability of that person for the period during which no report was filed, and to the tax as thus determined the Department shall add the penalty and interest provided in subsection (e) of this Section. An assessment made by the Department pursuant to this subsection or to subsection (g) of this Section shall be presumed to be correct and in any instance when 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 evidence that it is erroneous or excessive as the case may be.

(1) Fraudulent Report: If any licensee 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 Department a penalty equal to twenty-five percent (25%) of the deficiency together with interest at one percent (1%) per month, or fraction thereof, on such deficiency from the date such tax was due to the date of payment thereof in addition to all other penalties prescribed by law.

(5) Limitation: Except in the case of a fraudulent report or of neglect or refusal to make a report, every deficiency shall be assessed under subsection (g) of this Section within three (3) years after the twenty-fifth (25th) day of the next succeeding calendar month following the monthly period for which the amount is proposed to be determined or within three (3) years after the report is filed, whichever period expires the later."

Section 12. Amend 35137, Chapter 51, Title 30, Delaware Code by deleting the phrase "special fuel dealer or user" in the four (4) places it appears and substituting in lieu thereof the word "licensee" in each place.

Section 13. Amend 35138 (b), Chapter 51, Title 30, Delaware Code by deleting the phrase "Special fuel dealers and special fuel users" and substituting in lieu thereof the phrase "Special Fuel Dealers, Special Fuel Users, and Special Fuel Suppliers".

Section 14. Amend §5138, (c), Chapter 51, Title 30, Delaware Code by deleting subsection (c) in its entirety and substituting in lieu thereof a new subsection (c) to read as follows:

"(c) Presumption: For the purpose of enforcing the provisions of this Chapter, it shall be prima facie presumed that all special fuel received by any person into storage having dispensing equipment designed to fuel motor vehicles is to be transferred or delivered by that person into fuel supply tanks of motor vehicles."

Section 15. Amend 35139 (a) by deleting paragrpah (6) in its entirety and substituting in lieu thereof a new paragraph (6) to read as follows:

"(6) Knowingly and with intent to evade or aid in the evasion of the tax imposed herein, to deliver or place fuel into the bulk supply tank or tanks of a person not licensed as a Special Fuel Dealer or Special Fuel User or not a holder of a valid Special Fuel tax exemption certificate without collecting the lawful tax imposed herein.

(7) Fail to keep and maintain the books and records required by this Chapter."

Approved July 14, 1977.