§ 5101 Definitions.
As used in this chapter:
(1) "Aviation gasoline" is gasoline manufactured and distributed exclusively for use in internal combustion aircraft engines.
(2) "Department" means Department of Transportation.
(3) "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 or who, being in the business of selling and or distributing gasoline in bulk quantities, desires to purchase gasoline tax free from another distributor for resale within this State or for export from this State; and also any person, association of persons, firm or corporation who produces, refines, manufactures or compounds, or causes to be produced, refined, manufactured or compounded gasoline as defined in this section within the State.
(4) A product will be considered "gasohol" when it is composed of 1 part anhydrous ethyl alcohol (ethanol) and 9 parts unleaded gasoline.
(5) "Gasoline" includes all products commonly or commercially known or sold as gasoline, including gasohol, casinghead gasoline, natural gasoline, aviation gasoline and 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 combustion engines. The term "gasoline" does not include liquefied gases such as propane, butane or pentane, or mixtures of the same, nor any product:
a. Having an ASTM Designation D908 research octane number of less than 70; or
b. Having a Reid vapor pressure at 100° F. of more than 30 pounds.
(6) "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.
(7) "Retailer" means any person engaged in the sale of gasoline within this State who is not licensed as a distributor.
§ 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 Department of Transportation a license for each establishment operated by such person. Such license shall be issued by the Department and shall expire on June 30 next following, subject to such reasonable regulations as the Department shall provide. Every person desiring to continue to engage in the retail sale of gasoline shall annually thereafter on July 1 procure from the Department a license for such establishment operated by such person, which shall expire on June 30 next following, subject to such reasonable regulations as the Department shall provide. A license fee of $5.00 shall be paid for the issuing of every such license and the Department shall supply a certificate, which the licensee shall publicly display in a manner to be regulated by the Department. Retailers participating in the Small Retail Gasoline Station Assistance Loan Fund established in Chapter 74 of Title 7, must, as a condition of their license, make their loan payments as prescribed therein; if their fuel supplier is not a distributor licensed under this chapter, then the retailer must file its own fuel tax return with the Department of Transportation for this purpose.
30 Del. C. 1953, § 5102; 54 Del. Laws, c. 107; 57 Del. Laws, c. 741, § 24B; 59 Del. Laws, c. 216, § 2; 64 Del. Laws, c. 365, § 4; 64 Del. Laws, c. 368, § 1; 68 Del. Laws, c. 290, § 184; 69 Del. Laws, c. 77, § 73.;
§ 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 Department of Transportation to engage in such business. To procure such license, a distributor shall file with the Department an application under oath and in such form as the 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; and
(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 § 5107 of this title shall be filed with the Department of Transportation. 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 $10 shall be paid to the Department of Transportation.
(d) As a condition of their license, distributors shall make the required loan payments for themselves or their retailer customers who:
(1) Participate in the Small Retail Gasoline Station Assistance Loan Fund, established in Chapter 74 of Title 7; and
(2) Provide these funds to the distributor.
30 Del. C. 1953, § 5103; 54 Del. Laws, c. 107; 57 Del. Laws, c. 741, § 24B; 59 Del. Laws, c. 216, § 2; 64 Del. Laws, c. 365, § 5; 64 Del. Laws, c. 368, § 2; 68 Del. Laws, c. 290, § 184; 69 Del. Laws, c. 77, § 74.;
§ 5104 Issuance of distributor's license; term of license.
The application referred to in § 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 Department of Transportation shall, except as provided in this chapter, issue to such distributor a license to transact business as a distributor in this State. Such license shall expire on June 30 next following. Every distributor desiring to continue as a distributor shall apply for and procure a license before July 1 each year. Each distributor shall be assigned a license number upon qualifying for a license under this subchapter.
§ 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 Department of Transportation 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 Department of Transportation, 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 Department of Transportation 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 Department of Transportation a bond in the approximate sum of 3 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 $200,000. Every bond filed with and approved by the 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.
(b) The bond shall be in such form as may be approved by the Department, and shall be executed by a surety company to be approved by the 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 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.
(c) If liability upon the bond thus filed by the distributor with the Department of Transportation shall be discharged or reduced, whether by judgment rendered, payment made or otherwise, or if in the opinion of the Department any surety on the bond theretofore given shall have become unsatisfactory or unacceptable, then the Department may require the filing of a new bond with like surety as hereinbefore provided in the same amount, failing which, the Department shall forthwith cancel the license of the distributor. If the new bond is furnished by the distributor as above provided, the 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 Department of Transportation, 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 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 subsection (a) of this section, shall not exceed the maximum of $200,000, and the 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, upon written request mailed to the Department of Transportation, certified mail, return receipt requested, shall be released and discharged from any and all liability to the State accruing on such bond. Upon receipt of such request, the Department shall forthwith acknowledge in writing the receipt of said request and shall therein inform the surety that it 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 on which the Department received the surety's request for release and discharge. Simultaneously, the Department shall also notify the distributor who furnished such bond of the fact that the surety will be released and discharged from any and all liability on a date certain. The distributor shall further be advised that unless it shall, on or before the expiration of such 60-day period, file with the Department a new bond in the amount and form hereinbefore in this section provided, the Department shall forthwith cancel the license of the distributor.
30 Del. C. 1953, § 5107; 54 Del. Laws, c. 107; 57 Del. Laws, c. 741, § 24B; 59 Del. Laws, c. 216, § 2; 62 Del. Laws, c. 380, § 4; 64 Del. Laws, c. 365, § 1; 65 Del. Laws, c. 339, § 1; 66 Del. Laws, c. 97, § 1; 68 Del. Laws, c. 290, § 184; 70 Del. Laws, c. 311, §§ 1, 2.;
§ 5108 Revocation, cancellation and surrender of license and bond.
The Department of Transportation may revoke the license of any distributor for reasonable cause. Before revoking any such license the 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 Department may, in the exercise of reasonable discretion, suspend such license.
The 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 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 Department shall cancel and surrender the bond or other surety theretofore filed by said distributor. The Department shall promptly notify all licensed distributors of any such cancellation.
The Department of Transportation may suspend or revoke a gasoline retailer's license for reasonable cause in the same manner as a distributor's license.
§ 5109 Records of Department of Transportation.
The Department of Transportation 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; collection.
(a) There is hereby levied and imposed for the state fiscal year commencing August 1, 1981, a tax of 11 cents per gallon on all gasoline which is sold or used in the State. For each state fiscal year thereafter, the rate of such tax per gallon shall equal the product of: Ten percent and the 12-month average of the "wholesale average price" per gallon of regular unleaded gasoline at self-service stations in the Philadelphia, Pennsylvania area, as reported in the McGraw-Hill Platt's/Lundberg Report (or successor report), such product to be rounded to the nearest whole cent. A calculation producing a rate including a fraction less than one half of 1 cent shall be rounded down to the nearest whole cent, and a calculation producing a rate including a fraction equal to or greater than one-half cent shall be rounded up to the nearest whole cent. The rate of taxation for the fiscal years beginning July 1, 1982, and thereafter shall be calculated on the basis of such wholesale average prices reported for the consecutive 12-month period commencing March 1 and ending on the last day of February of the fiscal year next prior to the fiscal year in which the tax will be imposed. The Secretary of Transportation and the Secretary of Finance shall compute the applicable rate in March, or as soon as practicable thereafter, for the next state fiscal year and shall notify the Governor and the General Assembly of their findings and calculations not later than April 30 of that year. If the Platt's/Lundberg Report fails to contain reports on the wholesale average price per gallon of regular unleaded gasoline at self-service stations in the Philadelphia, Pennsylvania area for any month or if the report is discontinued and no successor report is published, the Secretary of Transportation and the Secretary of Finance shall use available figures reflecting such prices reported in any other nationally recognized publication. Notwithstanding the foregoing:
(1) The tax rate per gallon of gasoline levied pursuant to this section shall not be less than an amount equivalent to 11 cents per gallon;
(2) The tax rate for any fiscal year commencing July 1, 1982, and thereafter shall not be less than the rate for the prior state fiscal year nor more than 1 cent per gallon above the tax rate in effect for the prior state fiscal year; and
(3) The maximum aggregate tax rate shall not exceed an amount equivalent to 11 cents per gallon of gasoline.
(b) The tax shall be collected by and paid to the State 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 shall be collected in the manner hereinafter provided.
(c) Notwithstanding subsection (a) of this section, the tax levied and imposed in subsection (a) of this section shall be 22 cents per gallon through December 31, 1994. Thereafter, the tax shall be 23 cents per gallon. Effective January 1, 1995, the tax shall be no more or no less than 23 cents per gallon until increased or decreased by the State. By virtue of the pledge and assignment of motor fuel tax revenues by the State to the Delaware Transportation Authority, said tax shall not be decreased during the period any bonds of that Authority are outstanding and unpaid.
30 Del. C. 1953, § 5110; 54 Del. Laws, c. 107; 55 Del. Laws, c. 112, § 1; 58 Del. Laws, c. 289, § 1; 59 Del. Laws, c. 218, §§ 1, 2; 59 Del. Laws, c. 416, § 1; 61 Del. Laws, c. 74, § 1; 63 Del. Laws, c. 179, § 24; 65 Del. Laws, c. 385, § 10; 66 Del. Laws, c. 87, § 2; 67 Del. Laws, c. 285, § 55; 68 Del. Laws, c. 290, § 184; 69 Del. Laws, c. 77, §§ 49, 50.;
§ 5111 Exempt sales of gasoline.
(a) The tax imposed by this chapter shall not apply to gasoline:
(1) Sold and delivered to and used by the United States or any of the governmental agencies thereof;
(2) Sold or delivered under the protection of the interstate commerce clause of the Constitution of the United States;
(3) Sold by a distributor to another distributor;
(4) Sold and delivered to and used by the State and every political subdivision thereof;
(5) Sold and delivered to and used by volunteer fire companies in any of their official vehicles and veteran or civic organizations in their ambulances when such vehicles are used on a voluntary, nonprofit basis. The fuel supply tanks maintained under this section must be for the exclusive use of said vehicles.
(b) The Department of Transportation may, for purposes of identification of the above agencies or organizations, require that an exemption certificate issued by the Department of Transportation be on file with the Department and the supplier from which the fuel is purchased.
30 Del. C. 1953, § 5111; 54 Del. Laws, c. 107; 56 Del. Laws, c. 33, § 2; 57 Del. Laws, c. 741, § 24B; 59 Del. Laws, c. 216, § 2; 60 Del. Laws, c. 81, § 1; 62 Del. Laws, c. 380, § 6; 68 Del. Laws, c. 290, § 184; 69 Del. Laws, c. 77, § 65.;
§ 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.
30 Del. C. 1953, § 5112; 54 Del. Laws, c. 107.;
§ 5113 Monthly reports of distributors.
(a) On or before the twenty-fifth day of each calendar month, each distributor of gasoline shall file with the office of the Department of Transportation, a statement on a form prepared by the Department of Transportation, 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, the quantity of gasoline sold, delivered or used within this State during the preceding calendar month, and such other information as the Department of Transportation may require. Aviation gasoline shall be reported separately from other gasolines.
(b) On or before June 25 each year, distributors having average monthly taxable sales and/or use of 500,000 or more gallons shall file a statement of the estimated sales and/or use anticipated for the same calendar month.
(c) The fact that a distributor's name is signed to such statements shall be prima facie evidence for all purposes that the reports were actually signed by such distributor or a duly authorized agent. Such statements 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.
(d) The monthly statements or payments of tax, as provided in § 5114 of this title, shall be considered to have been duly and timely filed if such statements or payments are deposited in the United States mail with postage prepaid on or before the twenty-fifth day of a given calendar month; provided, however, that for good cause the Department of Transportation may grant a licensee a reasonable extension of time.
In lieu of depositing tax payments in the United States mail, a licensed motor fuel distributor may hand deliver said payment to the Department of Transportation or the Department may require licensed motor fuel distributors to make electronic transfers of such funds to the appropriate state account.
(e) When the twenty-fifth day of a given month falls on a weekend or state holiday, the due date of the statement and tax shall be the next following business day of the State.
30 Del. C. 1953, § 5113; 54 Del. Laws, c. 107; 57 Del. Laws, c. 741, §§ 24B, 24C; 59 Del. Laws, c. 216, § 2; 60 Del. Laws, c. 76, § 1; 60 Del. Laws, c. 440, §§ 1-3; 62 Del. Laws, c. 380, § 7; 67 Del. Laws, c. 340, § 1; 68 Del. Laws, c. 290, § 184; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 575, § 12.;
§ 5114 Payment of tax by distributor.
(a) At the time of rendering the statement required by § 5113(a) of this title, the distributor shall pay to the Department of Transportation the tax or taxes levied by this chapter on all gasoline sold and/or used within this State during the preceding calendar month.
(b) Distributors averaging monthly sales and/or use of 500,000 or more gallons over a 12-month period ending April 30 each year shall, when complying with § 5113(b) of this title, pay to the Department of Transportation 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 day of the next calendar month.
30 Del. C. 1953, § 5114; 54 Del. Laws, c. 107; 57 Del. Laws, c. 741, §§ 24B, 24C; 59 Del. Laws, c. 216, § 2; 60 Del. Laws, c. 76, § 2; 60 Del. Laws, c. 667, § 1; 62 Del. Laws, c. 380, § 8; 68 Del. Laws, c. 290, § 184.;
§ 5115 Penalties for failure to file reports or pay tax when due.
When any distributor fails to file monthly reports with the Department of Transportation as required by § 5113 of this title or when such distributor fails to pay the Department the amount of taxes due to this State as required by § 5114 of this title, a penalty of $5.75 per business day shall accrue up to a maximum of $28.75 for each report. For each report filed more than 5 business days late, the penalty shall be $28.75 or 12 percent of the tax due, whichever is greater, for each such report. Any tax due shall also bear interest at the rate of 1 percent per month, or fraction thereof, until same is paid; however, the Department may waive all or any part of the penalty and interest when it is established to the satisfaction of the Department that failure to file the monthly report or pay the tax by the twenty-fifth day of the month was not with intent to violate the law.
A month, for purposes of calculating interest in this chapter, shall be from the twenty-sixth day of a given month through the twenty-fifth day of the following month.
30 Del. C. 1953, § 5115; 54 Del. Laws, c. 107; 57 Del. Laws, c. 741, §§ 24B, 24C; 59 Del. Laws, c. 216, § 2; 60 Del. Laws, c. 76, § 3; 60 Del. Laws, c. 422, § 1; 62 Del. Laws, c. 380, §§ 9, 10; 64 Del. Laws, c. 368, § 3; 67 Del. Laws, c. 260, § 1; 68 Del. Laws, c. 290, § 184; 70 Del. laws, c. 186, § 1.;
§ 5116 Estimate by Department of Transportation in absence of tax report; redetermination of assessment.
(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 Department of Transportation 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 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.
(c) Promptly after the date of such determination, the Department of Transportation shall notify by mail the person against whom the assessment is made. Within 60 days after the date of notification, such person may file with the Department of Transportation a petition for redetermination of such assessment. Every petition for redetermination shall state specifically the reason or reasons which the petitioner believes entitles the petitioner to such redetermination. It shall be the duty of the Secretary of Transportation within 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 Transportation.
(d) Any person shall have the right to appeal within 60 days the decision of the Secretary of Transportation concerning redetermination to the Superior Court of this State.
§ 5117 Collection by Department of Transportation 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 Department of Transportation may issue a warrant under its official seal, and signed by its Chairperson, 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 the sheriff's 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 Department and to pay the 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 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 Department of Transportation 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 Department of Transportation 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 Department of Transportation.
All money received by the Department of Transportation under this chapter shall be deposited, not later than the close of the business day next following such receipt, to the credit of the Delaware Transportation Authority pursuant to Chapter 13 of Title 2, as amended, and any resolution or indenture of the Delaware Transportation Authority, authorizing the issuance of bonds to finance the costs of transportation facilities described in said title, is to be used to finance the costs of roads, highways and other transportation facilities and not to defray the expenses and obligations of the general government of the State.
§ 5120 Refunds of motor fuel taxes.
(a) The Secretary of Transportation shall refund out of the General Fund of this State the tax paid on gasoline upon receipt of written authorization from the Department of Transportation so to do, which written authorization shall be given under the following conditions:
(1) Gasoline used by any person for the purpose of operating stationary gas engines, tractors, motorboats, airplanes or aircrafts, or any other purpose except in motor vehicles licensed, or subject to being licensed, for operation upon any of the public highways of the State.
(3) Gasoline sold and delivered to, and used and consumed by, the operators of taxicab businesses in the operation of a taxicab or taxicabs in the normal course of such businesses; provided, however, that the main base of operations of the taxicab business in each case must be in the State, and the application provided for in subsection (b) of this section must certify that all fees and taxes then due from such business to the State or to any local government of the State by the operator and/or owner of such taxicab business shall have been paid in full. For purposes of this paragraph, the definition of "taxicab" shall be as set forth in § 101 of Title 21.
(b) Such application shall be in such form as shall be prescribed by the 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 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 Department of Transportation within 12 calendar months from the date of the purchase or invoice of the gasoline with respect to which a tax refund is claimed.
(e) The conditions of this section having been fully complied with, the Department of Transportation shall determine the amount of the refund due on such application and authorize the Secretary of Transportation in writing to pay such amount within 30 days from the time of filing of the application for refund.
(f) There shall be refunded out of the General Fund of this State any tax, penalty or interest erroneously or illegally collected under this chapter. A refund claim prepared in such manner as the Department may prescribe shall be filed with the Department within 1 year from the earlier of:
(1) The date of the payment; or
(2) The date the payment was required to be made.
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 this section shall later be determined to have been erroneously or illegally paid in whole or in part, the Department of Transportation may demand, within 3 years from the date of such payment, that restitution be made to the General Fund of this State. Interest on said moneys assessed shall accrue at the rate of 1% per month, or fraction thereof, from the date of notification by the Department of Transportation until receipt of payment.
30 Del. C. 1953, § 5120; 54 Del. Laws, c. 107; 56 Del. Laws, c. 33, § 1; 57 Del. Laws, c. 741, §§ 24B, 24C; 59 Del. Laws, c. 216, §§ 2, 3; 60 Del. Laws, c. 81, § 2; 60 Del. Laws, c. 642, § 1; 62 Del. Laws, c. 380, §§ 13, 14; 68 Del. Laws, c. 156, § 55(b); 68 Del. Laws, c. 290, § 184.;
§ 5121 Reports from carriers transporting gasoline; penalty for failure to file report; appeal.
(a) Every railroad company, suburban or interurban railroad company, pipeline 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 Department of Transportation on forms prescribed by the Department all deliveries of gasoline so made to points within this State.
(b) The reports shall cover monthly periods, shall be postmarked by the United States Postal Service on or before the twenty-fifth 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 Department may require.
(c) If any carrier fails to file a report as required by this section, a penalty of $5.00 per business day shall accrue until said report is filed up to a maximum amount of $25 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.
§ 5122 Retention of records by distributors or retailers; penalties.
(a) Each distributor or retailer shall maintain and keep, for a period of 3 years, such records of gasoline received, used, sold and/or delivered within this State by such distributor or retailer, together with invoices, bills of lading, and other pertinent records and papers as may be required by the Department of Transportation for the reasonable administration of this chapter.
(b) Whoever violates this section shall be fined not more than $1,000 and the costs of prosecution, or imprisoned not more than 1 year, or both.
§ 5123 Inspection of records.
(a) The record of all purchases, receipts, sales, distribution and use of gasoline of every distributor or retailer shall at all times during the business hours of the day be subject to inspection by the Department of Transportation or by any agent or employee duly authorized by it.
(b) The Department shall make an inspection of the records of all purchases, receipts, sales, distribution and use of gasoline of every distributor or retailer to the extent deemed necessary by the Secretary, by or through such agent or employee as may be duly authorized by it, for the purpose of ascertaining whether the distributors or retailers are complying with this chapter. If it is found that the distributors or retailers are not complying with this chapter, the Department shall report to the Attorney General in what respects the distributors or retailers are failing to so comply with this chapter.
§ 5124 Discontinuance, sale or transfer of business by distributor or retailer; penalties.
(a) Whenever a person ceases to engage in business as a distributor or retailer within this State by reason of the discontinuance sale or transfer of the business of such distributor or retailer, the distributor or retailer shall notify the Department of Transportation 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 or retailer shall concurrently with such discontinuance, sale or transfer make a report and pay all such taxes, interest and penalties, and surrender to the Department the license theretofore issued to the distributor or retailer by the Department.
(b) Unless the notice provided for in subsection (a) of this section shall have been given to the Department of Transportation, 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 or retailer so selling or transferring a 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 or retailer.
(c) Whoever violates this section shall be fined not less than $50 nor more than $300 and the costs of the prosecution, or imprisoned not more than 1 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.
30 Del. C. 1953, § 5125; 54 Del. Laws, c. 107.;
§ 5126 Exchange of information among the states.
The Department of Transportation 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.
§ 5128 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 or retailer 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 Department of Transportation 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 1 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 or retailer 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 this chapter, or knowingly makes, or aids or assists any other person in making a false statement in a report to the Department of Transportation 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 this chapter, be fined not less than $100 nor more than $1,000, or imprisoned not less than 30 days nor more than 1 year, or both. The Superior Court of this State shall have exclusive jurisdiction over violations of this chapter.
(c) The Delaware State Police are authorized and directed to assist in the enforcement of this section.
§ 5129 Collection of bad checks; service charge; interest.
If a check received in payment of moneys due the Department under this chapter shall be returned to the 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 $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 15 days of the original amount of the check 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 15 days shall constitute cause for the Department to suspend the maker's motor fuel license and 30 days thereafter, to revoke the maker's motor fuel license.