CHAPTER 380

FORMERLY

HOUSE BILL NO. 982

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

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section I. Amend §5101, Chapter 51, Title 30 of the Delaware Code by striking the semi-colon ";" after the word "State" the second time it appears in the fourth line of subparagraph (I) of said subsection and inserting the phrase "or who desires to purchase gasoline tax free from another distributor for resale within this State or for export from this State:"

Section 2. Amend §5101, Chapter 51, Title 30, Delaware Code by renumbering subparagraph "(2)" as subparagraph "(4)" and by inserting new subparagraphs (2) and (3) to read as follows:

"(2) 'Retailer' means any person engaged in the sale of gasoline within this State who is not licensed as a distributor;

(3) 'Person' includes every natural person, fiduciary, association of persons or corporation. Whenever used in any clause 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;"

Section 3. Amend §5104, Chapter 51, Title 30, Delaware Code, by striking in its entirety the last sentence of said Section.

Section 4. Amend subsection (a) of §5107, Chapter 51, Title 30, Delaware Code by striking the figure "$5,000" and substituting in lieu thereof the figure "$1,000".

Section 5. Amend §5108, Chapter 51, Title 30, Delaware Code by adding at the end thereof a new paragraph to read as follows:

"The Department of Public Safety may suspend or revoke a gasoline retailer's license for reasonable cause in the same manner as a distributor's license."

Section 0. Amend subparagraph (4) of §5111(a), Chapter 51, Title 30, Delaware Code by striking said subparagraph in its entirety and by renumbering subparagraphs "(5)" and "6)" as subparagraphs "(4)" and "(5)", respectively.

Section 7. Amend subsection (b) of §5113, Chapter 51, Title 30, Delaware Code by striking the phrase "each calendar month" wherever the same appears therein and substitute In lieu thereof the phrase "June each year".

Section 8. Amend subsection (b) of §5114, Chapter 51, Title 30, Delaware Code by striking said subsection in its entirety and substituting in lieu thereof a new subsection (b) to read as follows:

"(b) Distributors averaging monthly sales and/or use of 500,000 or more gallons over a twelve (12) month period ending April 30th each year shall when complying with the provision of §5113(b) of this Chapter pay to the Department of Public Safety in June each year the tax or taxes on 75% of the gallons of gasoline estimated to be sold and/or used during said month of June. The balance of the tax due on the actual sales and/or use in June shall be paid on or before the twenty-fifth (25th) day of the next calendar month."

Section 9. Amend §5115, Chapter 51, Title 30, Delaware Code by striking the phrase "next to the last business day" and substituting in lieu thereof the following phrase:

"twenty-fifth (25th) day".

Section 10. Amend §5115, Chapter 51, Title 30, Delaware Code by adding a new paragraph as follows:

"A month, for purposes of calculating interest in this Chapter, shall be from the twenty-sixth (26th) day of a given month through the twenty-fifth (25th) day of the following month."

Section II. Amend §5116, Chapter 51, Title 30, Delaware Code by adding new subsections (c) and (d) as follows:

"(a) Promptly after the date of such determination, the Department of Public Safety shall notify by mail the person against whom the assessment is made. Within sixty (60) days after the date of notification, such person may file with the Department of Public Safety a petition for redetermination of such assessment. Every petition for redetermination shall state specifically the reason(s) which the petitioner believes entitles him to such redetermination. It shall be the duty of the Secretary of Public Safety within ninety (90) days after the receipt of any petition to dispose of such petition for redetermination. Notice of the decision shall be given in writing to the petitioner promptly by the Secretary of Public Safety.

(d) Any person shall have the right to appeal within sixty (60) days the decision of the Secretary of Public Safety concerning redetermination to the Superior Court of this State."

Section 12. Amend §5117, Chapter 51, Title 30, Delaware Code by striking the word "shall" as it appears between the words "safety" and the word "Issue" in the first sentence of said section and substituting in lieu thereof the word "may".

Section 13. Amend §5120, Chapter 51, Title 30, Delaware Code by striking from subsection (a)(1) the phrase "except in motor vehicles operated or intended to be operated in whole or in part", and substituting in lieu thereof the following:

"except in motor vehicles licensed, or subject to being licensed, for operation".

Section 14. Amend §5120, Chapter 51, Title 30, Delaware Code by adding new subsections (f) and (g) as follows:

"(f) There shall be refunded out of the General Fund of this State any tax, penalty or interest erroneously or illegally collected under the provisions of this Chapter. A refund claim prepared in such mariner as the Department may prescribe shall be filed with the Department within three (3) years from the date of payment of the monies erroneously or illegally collected and the Department shall certify the amount thereof to the State Treasurer who shall thereupon draw a warrant to the Claimant forthwith.

(g) If a refund granted under the provisions of this Section shall later be determined to have been erroneously or illegally paid in whole or in part, the Department of Public Safety may demand, within three (3) years from the date of such payment, that restitution be made to the General Fund of this State. Interest on said monies assessed shall accrue at the rate of 1% per month or fraction thereof from the date of notification by this Division until receipt of payment."

Section-1S. Amend subsection (b) of §5121, Chapter 51, Title 30, Delaware Code by striking the phrase "on file in the office of the Department on or before the next to last business day" and substituting in lieu thereof the following phrase:

"postmarked by the U. S. Postal Service on or before the twenty-fifth (25th) day".

Section 16. Amend §5121, Chapter 51, Title 30, Delaware Code by adding a new subsection (e) as follows:

"(e) If any carrier fails to file a report as required by this Section, a penalty of five dollars ($5) per business day shall accrue until said report is filed up to a maximum amount of twenty-five ($25) dollars for each report; however, the Department may waive all or part of the penalty if it is established to the satisfaction of the Department that failure to file the report was not with intent to violate the law."

Section 17. Amend §5122, Chapter 51, Title 30, Delaware Code by inserting after the word "distributors" in the title the phrase "or retailers" and by inserting after the word "distributor" the two times it appears in subsection (a) the phrase or retailer".

Section 18. Amend §5123, Chapter 51, Title 30, Delaware Code, by inserting the phrase or retailer" following the word "distributor" wherever it appears in subsections (a) and (b) and by inserting the phrase "or retailers" following the word "distributors" wherever it appears in subsection (b).

Section 19. Amend §5124, Chapter 51, Title 30, Delaware Code by inserting the words "or retailer" following the word "distributor" wherever it appears in subsections (a) and (b) of said Section.

Section 20. Amend subsection (a) of §5128, Chapter 51, Title 30, Delaware Code by inserting after the word "distributor" the two times it appears, the phrase "or retailer".

Section 21. Amend §5128, Chapter 51, Title 30, Delaware Code by adding after the last sentence of subsection (b) the following sentence: "The Superior Court of this State shall have exclusive jurisdiction over violations of this Chapter," and by adding a new subsection (e) as follows:

"(e) The Delaware State Police are authorized and directed to assist in the enforcement of this section."

Section 22. Amend Chapter 51, Title 30, Delaware Code by adding a new 55129 to read as follows:

"§5129. Collection of Bad Checks; Service Charge; Interest

If a check received in payment of monies due this Department under the provisions of this Chapter shall be returned to this Department by the maker's bank because of insufficient funds, closed account, stopped payment, or any other reason, there shall be Imposed upon the maker a service charge of ten dollars ($10) and interest at the rate of 1% per month or fraction thereof shall accrue on the tax, if any, from the date such tax was due to be paid. A statement shall be sent to the maker demanding payment within fifteen (15) days of the original amount of the cheek plus the added service charge, interest if any, and the cost of the postage incurred in mailing the statement. Failure of the maker to respond to the demand within fifteen (15) days shall constitute cause for the Department to suspend the maker's motor fuel license and thirty (30) days thereafter, to revoke the maker's motor fuel license."

Approved July 10, 1980.