85R18600 CBH-F     By: Shine H.B. No. 2925     Substitute the following for H.B. No. 2925:     By:  Murphy C.S.H.B. No. 2925       A BILL TO BE ENTITLED   AN ACT   relating to the administration of gasoline and diesel fuel motor   fuels taxes and the fee on the delivery of certain petroleum   products.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 162.012(a), Tax Code, is amended to read   as follows:          (a)  A person licensed under this chapter or required to be   licensed under this chapter, or other user, who fails to keep a   record, issue an invoice, or file a return or report required by   this chapter is presumed to have sold or used for taxable purposes   all motor fuel shown by an audit by the comptroller to have been   sold to the license holder or other user. Motor fuel unaccounted   for is presumed to have been sold or used for taxable purposes. If   an exporter claims an exemption under Section 162.104(a)(4)   [162.104(a)(4)(B)] or 162.204(a)(4) [162.204(a)(4)(B)] and fails   to report subsequent tax-free sales in this state of the motor fuel   for which the exemption was claimed as required by Section 162.1155   or 162.2165, or to produce proof of payment of tax to the   destination state or proof that the transaction was exempt in the   destination state, the exporter is presumed to have not paid the   destination state's tax or this state's tax on the [exported] motor   fuel and the comptroller shall assess the tax imposed by this   chapter on the [exported] motor fuel against the exporter. The   comptroller may fix or establish the amount of taxes, penalties,   and interest due this state from the records of deliveries or from   any records or information available. If a tax claim, as developed   from this procedure, is not paid, after the opportunity to request a   redetermination, the claim and any audit made by the comptroller or   any report filed by the license holder or other user is evidence in   any suit or judicial proceedings filed by the attorney general and   is prima facie evidence of the correctness of the claim or audit. A   prima facie presumption of the correctness of the claim may be   overcome at the trial by evidence adduced by the license holder or   other user.          SECTION 2.  Section 162.101, Tax Code, is amended by adding   Subsections (e-1) and (e-2) to read as follows:          (e-1)  A tax is imposed on gasoline that is otherwise exempt   from taxation under Section 162.104(a)(4) or (7) if the gasoline is   sold in this state to a person who does not hold a license under   Section 162.105(1), (2), (3), (4), or (6). The person that sold the   gasoline is liable for and shall collect the tax.          (e-2)  A tax is imposed on gasoline that is otherwise exempt   from taxation under Section 162.104(a)(4) or (7) if before export   the gasoline is sold in this state to a person who holds a license   under Section 162.105(1), (2), (3), (4), or (6) and the gasoline is   delivered to a destination in this state. The person that   redirected the delivery of the gasoline to a destination in this   state is liable for and shall pay the tax.          SECTION 3.  Sections 162.104(a), (d), and (f), Tax Code, are   amended to read as follows:          (a)  The tax imposed by this subchapter does not apply to   gasoline:                (1)  sold to the United States for its exclusive use,   provided that the exemption does not apply with respect to fuel sold   or delivered to a person operating under a contract with the United   States;                (2)  sold to a public school district in this state for   the district's exclusive use;                (3)  sold to a commercial transportation company or a   metropolitan rapid transit authority operating under Chapter 451,   Transportation Code, that provides public school transportation   services to a school district under Section 34.008, Education Code,   and that uses the gasoline only to provide those services;                (4)  exported by either a licensed supplier or a   licensed exporter from this state to any other state, provided   that[:                      [(A)     for gasoline in a situation described by   Subsection (d),] the bill of lading indicates the destination state   and the supplier collects the destination state tax[; or                      [(B)     for gasoline in a situation described by   Subsection (e), the bill of lading indicates the destination state,   the gasoline is subsequently exported, and the exporter is licensed   in the destination state to pay that state's tax and has an   exporter's license issued under this subchapter];                (5)  moved by truck or railcar between licensed   suppliers or licensed permissive suppliers and in which the   gasoline removed from the first terminal comes to rest in the second   terminal, provided that the removal from the second terminal rack   is subject to the tax imposed by this subchapter;                (6)  delivered or sold into a storage facility of a   licensed aviation fuel dealer from which gasoline will be delivered   solely into the fuel supply tanks of aircraft or aircraft servicing   equipment, or sold from one licensed aviation fuel dealer to   another licensed aviation fuel dealer who will deliver the aviation   fuel exclusively into the fuel supply tanks of aircraft or aircraft   servicing equipment;                (7)  exported to a foreign country if the bill of lading   indicates the foreign destination and the fuel is actually exported   to the foreign country;                (8)  sold to a volunteer fire department in this state   for the department's exclusive use; or                (9)  sold to a nonprofit entity that is organized for   the sole purpose of and engages exclusively in providing emergency   medical services and that uses the gasoline exclusively to provide   emergency medical services, including rescue and ambulance   services.          (d)  Subsection (a)(4) [(a)(4)(A)] applies only if the   destination state recognizes, by agreement with this state or by   statute or rule, a supplier in this state as a valid taxpayer for   the motor fuel being exported to that state from this state. The   comptroller shall publish a list that specifies for each state,   other than this state, whether that state does or does not qualify   under this subsection.          (f)  The exemption provided by Subsection (a)(4) [(a)(4)(A)]   does not apply to a sale by a distributor.          SECTION 4.  Section 162.115(d), Tax Code, is amended to read   as follows:          (d)  An exporter shall keep:                (1)  a record showing the number of gallons of:                      (A)  all gasoline inventories on hand at the first   of each month;                      (B)  all gasoline compounded or blended;                      (C)  all gasoline purchased or received, showing   the name of the seller and the date of each purchase or receipt;                      (D)  all gasoline sold, distributed, or used,   showing the name of the purchaser and the date of the sale or use;   and                      (E)  all gasoline lost by fire, theft, or   accident;                (2)  an itemized statement showing by load the number   of gallons of all gasoline:                      (A)  received during the preceding calendar month   for export and the location of the loading; and                      (B)  exported from this state by destination state   or country;                (3)  proof of payment of tax to the destination state in   a form acceptable to the comptroller; and                (4)  if an exemption under Section 162.104(a)(4)   [162.104(a)(4)(B)] is claimed, proof of payment of tax to the   destination state or proof that the transaction was exempt in the   destination state, in a form acceptable to the comptroller.          SECTION 5.  Subchapter B, Chapter 162, Tax Code, is amended   by adding Section 162.1155 to read as follows:          Sec. 162.1155.  DUTY TO REPORT SUBSEQUENT SALES OF TAX-FREE   GASOLINE PURCHASED FOR EXPORT. (a) A person who purchases or   removes gasoline tax-free under Section 162.104(a)(4) or (7) and   before export sells the gasoline in this state tax-free to a person   who holds a license under Section 162.105(1), (2), (3), (4), or (6),   shall report that transaction to the comptroller as required by   this section. If the gasoline is subsequently sold one or more   times in this state before export and tax-free to a person who holds   a license under Section 162.105(1), (2), (3), (4), or (6), each   seller shall report the transaction to the comptroller as required   by this section.          (b)  Each person who sells tax-free gasoline in this state in   a transaction described by Subsection (a) must provide to the   comptroller:                (1)  the bill of lading number issued at the terminal;                (2)  the terminal control number;                (3)  the date the gasoline was removed from the   terminal;                (4)  the number of gallons invoiced; and                (5)  any other information required by the comptroller.          (c)  The sales invoice for each transaction described by   Subsection (a) must include:                (1)  the name of the seller and purchaser; and                (2)  the original bill of lading number.          (d)  A person required to report a transaction under   Subsection (a) shall report the transaction on a form prescribed by   the comptroller and with the return required by Section 162.114.          SECTION 6.  Section 162.201, Tax Code, is amended by adding   Subsections (e-1) and (e-2) to read as follows:          (e-1)  A tax is imposed on diesel fuel that is otherwise   exempt from taxation under Section 162.204(a)(4) or (7) if the   diesel fuel is sold in this state to a person who does not hold a   license under Section 162.205(a)(1), (2), (3), (4), or (6). The   person that sold the diesel fuel is liable for and shall collect the   tax.          (e-2)  A tax is imposed on diesel fuel that is otherwise   exempt from taxation under Section 162.204(a)(4) or (7) if before   export the diesel fuel is sold in this state to a person who holds a   license under Section 162.205(a)(1), (2), (3), (4), or (6) and the   diesel fuel is delivered to a destination in this state. The person   that redirected the delivery of the diesel fuel to a destination in   this state is liable for and shall pay the tax.          SECTION 7.  Sections 162.204(a), (d), and (f), Tax Code, are   amended to read as follows:          (a)  The tax imposed by this subchapter does not apply to:                (1)  diesel fuel sold to the United States for its   exclusive use, provided that the exemption does not apply to diesel   fuel sold or delivered to a person operating under a contract with   the United States;                (2)  diesel fuel sold to a public school district in   this state for the district's exclusive use;                (3)  diesel fuel sold to a commercial transportation   company or a metropolitan rapid transit authority operating under   Chapter 451, Transportation Code, that provides public school   transportation services to a school district under Section 34.008,   Education Code, and that uses the diesel fuel only to provide those   services;                (4)  diesel fuel exported by either a licensed supplier   or a licensed exporter from this state to any other state, provided   that[:                      [(A)     for diesel fuel in a situation described by   Subsection (d),] the bill of lading indicates the destination state   and the supplier collects the destination state tax [; or                      [(B)     for diesel fuel in a situation described by   Subsection (e), the bill of lading indicates the destination state,   the diesel fuel is subsequently exported, and the exporter is   licensed in the destination state to pay that state's tax and has an   exporter's license issued under this subchapter];                (5)  diesel fuel moved by truck or railcar between   licensed suppliers or licensed permissive suppliers and in which   the diesel fuel removed from the first terminal comes to rest in the   second terminal, provided that the removal from the second terminal   rack is subject to the tax imposed by this subchapter;                (6)  diesel fuel delivered or sold into a storage   facility of a licensed aviation fuel dealer from which the diesel   fuel will be delivered solely into the fuel supply tanks of aircraft   or aircraft servicing equipment, or sold from one licensed aviation   fuel dealer to another licensed aviation fuel dealer who will   deliver the diesel fuel exclusively into the fuel supply tanks of   aircraft or aircraft servicing equipment;                (7)  diesel fuel exported to a foreign country if the   bill of lading indicates the foreign destination and the fuel is   actually exported to the foreign country;                (8)  dyed diesel fuel sold or delivered by a supplier to   another supplier and dyed diesel fuel sold or delivered by a   supplier or distributor into the bulk storage facility of a dyed   diesel fuel bonded user or to a purchaser who provides a signed   statement as provided by Section 162.206;                (9)  the volume of water, fuel ethanol, renewable   diesel, biodiesel, or mixtures thereof that are blended together   with taxable diesel fuel when the finished product sold or used is   clearly identified on the retail pump, storage tank, and sales   invoice as a combination of diesel fuel and water, fuel ethanol,   renewable diesel, biodiesel, or mixtures thereof;                (10)  dyed diesel fuel sold by a supplier or permissive   supplier to a distributor, or by a distributor to another   distributor;                (11)  dyed diesel fuel delivered by a license holder   into the fuel supply tanks of railway engines, motorboats, or   refrigeration units or other stationary equipment powered by a   separate motor from a separate fuel supply tank;                (12)  dyed kerosene when delivered by a supplier,   distributor, or importer into a storage facility at a retail   business from which all deliveries are exclusively for heating,   cooking, lighting, or similar nonhighway use;                (13)  diesel fuel used by a person, other than a   political subdivision, who owns, controls, operates, or manages a   commercial motor vehicle as defined by Section 548.001,   Transportation Code, if the fuel:                      (A)  is delivered exclusively into the fuel supply   tank of the commercial motor vehicle; and                      (B)  is used exclusively to transport passengers   for compensation or hire between points in this state on a fixed   route or schedule;                (14)  diesel fuel sold to a volunteer fire department   in this state for the department's exclusive use; or                (15)  diesel fuel sold to a nonprofit entity that is   organized for the sole purpose of and engages exclusively in   providing emergency medical services and that uses the diesel fuel   exclusively to provide emergency medical services, including   rescue and ambulance services.          (d)  Subsection (a)(4) [(a)(4)(A)] applies only if the   destination state recognizes, by agreement with this state or by   statute or rule, a supplier in this state as a valid taxpayer for   the motor fuel being exported to that state from this state. The   comptroller shall publish a list that specifies for each state,   other than this state, whether that state does or does not qualify   under this subsection.          (f)  The exemption provided by Subsection (a)(4) [(a)(4)(A)]   does not apply to a sale by a distributor.          SECTION 8.  Section 162.216(d), Tax Code, is amended to read   as follows:          (d)  An exporter shall keep:                (1)  a record showing the number of gallons of:                      (A)  all diesel fuel inventories on hand at the   first of each month;                      (B)  all diesel fuel compounded or blended;                      (C)  all diesel fuel purchased or received,   showing the name of the seller and the date of each purchase or   receipt;                      (D)  all diesel fuel sold, distributed, or used,   showing the name of the purchaser and the date of the sale or use;   and                      (E)  all diesel fuel lost by fire, theft, or   accident;                (2)  an itemized statement showing by load the number   of gallons of all diesel fuel:                      (A)  received during the preceding calendar month   for export and the location of the loading; and                      (B)  exported from this state, by destination   state or country;                (3)  proof of payment of tax to the destination state in   a form acceptable to the comptroller; and                (4)  if an exemption under Section 162.204(a)(4)   [162.204(a)(4)(B)] is claimed, proof of payment of tax to the   destination state or proof that the transaction was exempt in the   destination state, in a form acceptable to the comptroller.          SECTION 9.  Subchapter C, Chapter 162, Tax Code, is amended   by adding Section 162.2165 to read as follows:          Sec. 162.2165.  DUTY TO REPORT SUBSEQUENT SALES OF TAX-FREE   DIESEL FUEL PURCHASED FOR EXPORT. (a) A person who purchases or   removes diesel fuel tax-free under Section 162.204(a)(4) or (7) and   before export sells the diesel fuel in this state tax-free to a   person who holds a license under Section 162.205(a)(1), (2), (3),   (4), or (6), shall report that transaction to the comptroller as   required by this section. If the diesel fuel is subsequently sold   one or more times in this state before export and tax-free to a   person who holds a license under Section 162.205(a)(1), (2), (3),   (4), or (6), each seller shall report the transaction to the   comptroller as required by this section.          (b)  Each person who sells tax-free diesel fuel in this state   in a transaction described by Subsection (a) must provide to the   comptroller:                (1)  the bill of lading number issued at the terminal;                (2)  the terminal control number;                (3)  the date the diesel fuel was removed from the   terminal;                (4)  the number of gallons invoiced; and                (5)  any other information required by the comptroller.          (c)  The sales invoice for each transaction described by   Subsection (a) must include:                (1)  the name of the seller and purchaser; and                (2)  the original bill of lading number.          (d)  A person required to report a transaction under   Subsection (a) shall report the transaction on a form prescribed by   the comptroller and with the return required by Section 162.215.          SECTION 10.  Section 162.401, Tax Code, is amended by adding   Subsections (e) and (f) to read as follows:          (e)  In addition to any other penalty authorized by this   section, a person who fails to report a subsequent sale in this   state of tax-free motor fuel purchased for export as required by   Section 162.1155 or 162.2165 shall pay for each sale that is not   reported a penalty of $200. The penalty provided by this subsection   is not assessed if the taxpayer files an amended report that   includes the sale not later than the 180th day after the due date of   the original report of the sale.          (f)  In addition to any other penalty authorized by this   section, a person who fails to pay the tax imposed by Section   162.101(e-2) or 162.201(e-2) when due shall pay a penalty equal to   the greater of $2,000 or five times the amount of the tax due on the   motor fuel.          SECTION 11.  Section 26.3574(a), Water Code, is amended by   amending Subdivision (1) and adding Subdivision (2-a) to read as   follows:                (1)  "Bulk facility" means a facility in this state,   including pipeline terminals, refinery terminals, rail and barge   terminals, and associated underground and aboveground tanks,   connected or separate, from which petroleum products are withdrawn   from bulk and delivered into a cargo tank or a barge used to   transport those products. This term does not include petroleum   products consumed at an electric generating facility.                (2-a)  "Supplier" has the meaning assigned by Section   162.001, Tax Code.          SECTION 12.  Sections 26.3574(b), (d), (e), (f), (g), (i),   and (j), Water Code, are amended to read as follows:          (b)  A fee is imposed on the delivery of a petroleum product   on withdrawal from bulk of that product as provided by this   subsection. Each supplier [operator of a bulk facility] on   withdrawal from bulk of a petroleum product shall collect from the   person who orders the withdrawal a fee in an amount determined as   follows:                (1)  not more than $3.75 for each delivery into a cargo   tank having a capacity of less than 2,500 gallons;                (2)  not more than $7.50 for each delivery into a cargo   tank having a capacity of 2,500 gallons or more but less than 5,000   gallons;                (3)  not more than $11.75 for each delivery into a cargo   tank having a capacity of 5,000 gallons or more but less than 8,000   gallons;                (4)  not more than $15.00 for each delivery into a cargo   tank having a capacity of 8,000 gallons or more but less than 10,000   gallons; and                (5)  not more than $7.50 for each increment of 5,000   gallons or any part thereof delivered into a cargo tank having a   capacity of 10,000 gallons or more.          (d)  A person who imports a petroleum product in a cargo tank   or a barge destined for delivery into an underground or aboveground   storage tank, regardless of whether or not the tank is exempt from   regulation under Section 26.344 [of this code], other than a   storage tank connected to or part of a bulk facility in this state,   shall pay to the comptroller a fee on the number of gallons   imported, computed as provided by Subsections (b) and (c) [of this   section]. If a supplier [bulk facility operator] imports a   petroleum product in a cargo tank or a barge, the supplier [bulk   facility operator] is not required to pay the fee on that imported   petroleum product if the petroleum product is delivered to a bulk   facility from which the petroleum product will be withdrawn from   bulk.          (e)  A supplier [bulk facility operator] who receives   petroleum products on which the fee has been paid may take credit   for the fee paid on monthly reports.          (f)  Subsection (b) [of this section] does not apply to a   delivery of a petroleum product destined for export from this state   if the petroleum product is in continuous movement to a destination   outside this state. For purposes of this subsection, a petroleum   product ceases to be in continuous movement to a destination   outside this state if the product is delivered to a destination in   this state. The person that directs the delivery of the product to   a destination in this state shall pay the fee imposed by this   section on that product.          (g)  Each supplier [operator of a bulk facility] and each   person covered by Subsection (d) [of this section] shall file an   application with the comptroller for a permit to deliver a   petroleum product into a cargo tank destined for delivery to an   underground or aboveground storage tank, regardless of whether or   not the tank is exempt from regulation under Section 26.344 [of this   code]. A permit issued by the comptroller under this subsection is   valid on and after the date of its issuance and until the permit is   surrendered by the holder or canceled by the comptroller. An   applicant for a permit issued under this subsection must use a form   adopted or approved by the comptroller that contains:                (1)  the name under which the applicant transacts or   intends to transact business;                (2)  the principal office, residence, or place of   business in this state of the applicant;                (3)  if the applicant is not an individual, the names of   the principal officers of an applicant corporation, or the name of   the member of an applicant partnership, and the office, street, or   post office address of each; and                (4)  any other information required by the comptroller.          (i)  Each supplier [operator of a bulk facility] and each   person covered by Subsection (d) [of this section] shall:                (1)  list, as a separate line item on an invoice or   cargo manifest required under this section, the amount of the   delivery fee due under this section; and                (2)  on or before the 25th day of the month following   the end of each calendar month, file a report with the comptroller   and remit the amount of fees required to be collected or paid during   the preceding month.          (j)  Each supplier [operator of a bulk facility] or the   supplier's [his] representative and each person covered by   Subsection (d) [of this section] shall prepare the report required   under Subsection (i) [of this section] on a form provided or   approved by the comptroller.          SECTION 13.  The following provisions of the Tax Code are   repealed:                (1)  Sections 162.104(c) and (e); and                (2)  Sections 162.204(c) and (e).          SECTION 14.  The amendments made by this Act to Sections   162.101 and 162.201, Tax Code, are a clarification of existing law   and do not imply that existing law may be construed as inconsistent   with the law as amended by this Act.          SECTION 15.  The changes in law made by this Act do not   affect tax liability accruing before the effective date of this   Act. That liability continues in effect as if this Act had not been   enacted, and the former law is continued in effect for that purpose.          SECTION 16.  This Act takes effect January 1, 2018.