SB 249--
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Session of 1997
SENATE BILL No. 249
By Committee on Ways and Means
2-10
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9 AN ACT concerning the taxation of motor vehicle fuels; providing certain
10 payments to native Americans; amending K.S.A. 79-3461 and K.S.A.
11 1996 Supp. 79-3407, 79-3408, 79-3408c, 79-3409 and 79-3412 and
12 repealing the existing sections; also repealing K.S.A. 1996 Supp. 79-
13 3408g.
14
15 Be it enacted by the Legislature of the State of Kansas:
16 New Section 1. (a) The secretary of the department of revenue may
17 provide financial payments to federally recognized tribes of native Amer-
18 icans whose reservations are located wholly or partially within the bound-
19 aries of the state of Kansas for the purpose of relieving the economic
20 burden imposed, as a result of state taxation on motor fuel distributors,
21 manufacturers or importers, on tribal members who make purchases of
22 motor vehicle fuel or special fuels from tribal retailers located on the
23 tribal member's own reservation. Any such payments shall be calculated
24 on the basis of the number of gallons of such fuel purchased by tribal
25 members and the amount of tax previously paid by the distributor per
26 gallon, as established by K.S.A. 79-34,141, and amendments thereto. Any
27 such payments do not reflect a legislative intent to change the incidence
28 of taxation from the distributor, manufacturer or importer to any other
29 party.
30 (b) This act shall be supplemental to and part of the Kansas motor
31 fuel tax act, K.S.A. 79-3401, et seq., and amendments thereto.
32 Sec. 2. K.S.A. 1996 Supp. 79-3407 is hereby amended to read as
33 follows: 79-3407. Whenever any distributor, manufacturer, importer, or
34 exporter is 10 days delinquent in the payment of any such tax, penalty or
35 interest, or any distributor, manufacturer, importer, exporter or retailer
36 is 10 days delinquent in the making of any such report, or the payment
37 of any such tax, penalty or interest, or shall make any false report or
38 statement or application purporting to be under the provisions of this act,
39 or shall make any false statement in any application, report or statement
40 required by or purporting to be under the provisions of this act, or pur-
41 porting to be under the rules and regulations promulgated by the director
42 under such provisions, or shall have willfully or persistently violated any
43 of the provisions of this act or of any rules and regulations made there-
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1 under, the director upon conducting a hearing as provided in this section
2 and upon finding to the director's satisfaction upon such hearing, that
3 such distributor, manufacturer, importer, exporter or retailer has been
4 delinquent, or has violated provisions of this act, may revoke any or all
5 licenses issued to such distributor, manufacturer, importer, exporter or
6 retailer.
7 Hearings under this section shall be conducted in accordance with the
8 Kansas administrative procedure act. In the event that the director re-
9 vokes any license or licenses the distributor, manufacturer, importer, ex-
10 porter or retailer to whom such license or licenses were issued shall im-
11 mediately, upon service of the director's order, surrender the same to the
12 director and cease using, selling, delivering or manufacturing any motor-
13 vehicle fuels or special fuels at or from any places of business or stations
14 for which the license or licenses have been revoked.
15 Sec. 3. K.S.A. 1996 Supp. 79-3408 is hereby amended to read as
16 follows: 79-3408. (a) A tax per gallon or fraction thereof, at the rate com-
17 puted as prescribed in K.S.A. 79-34,141, and amendments thereto, is
18 hereby imposed on the use, sale or delivery of all motor vehicle fuels or
19 special fuels which are used, sold or delivered in this state for any purpose
20 whatsoever.
21 (b) Every retail pump for motor-vehicle fuels shall be conspicuously
22 labeled to show the content and percentage of any ethyl alcohol or other
23 alcohol combined or alone in excess of 1% by volume.
24 (c) Unless otherwise specified in K.S.A. 79-3408c, and amendments
25 thereto, the incidence of this tax is imposed on the distributor of first
26 receipt of the motor fuel such taxes shall be paid but once. Such tax shall
27 be computed on all motor-vehicle fuels or special fuels received by each
28 distributor, manufacturer, or importer or retailer in this state and paid in
29 the manner provided for herein, except that an allowance of 2.5% shall
30 be made and deducted by the distributor to cover all ordinary losses in
31 which may have resulted from physical loss while handling such motor-
32 vehicle fuels or special fuels. No such allowance shall be made on any
33 motor-vehicle fuel or special fuel exported from the state or sold to the
34 United States of America or any of its agencies or instrumentalities as are
35 now or hereinafter exempt by law from liability to state taxation. No such
36 allowance shall be made for any motor-vehicle fuel or special fuel sold or
37 disposed of to a consumer in tank car, transport or pipeline lots.
38 (d) No tax is hereby imposed upon or with respect to the following
39 transactions:
40 (1) The sale or delivery of motor-vehicle fuel or special fuel for export
41 from the state of Kansas to any other state or territory or to any foreign
42 country.
43 (2) The sale or delivery of motor-vehicle fuel or special fuel to the
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1 United States of America and such of its agencies as are now or hereafter
2 exempt by law from liability to state taxation.
3 (3) The sale or delivery of motor-vehicle fuel or special fuel to a
4 contractor for use in performing work for the United States or those
5 agencies of the United States above mentioned, provided such contractor
6 has in effect with the United States or any such agency a cost-plus-a-
7 fixed-fee contract covering the work.
8 (4) The sale or delivery of motor-vehicle fuel or special fuel which is
9 aviation fuel.
10 (5) The first sale or delivery of motor-vehicle fuel or special fuel from
11 a refinery, pipeline terminal, pipeline tank farm or other place to a duly
12 licensed distributor who in turn resells to another duly licensed distrib-
13 utor.
14 (6) The sale or delivery of special fuel which is indelibly dyed in ac-
15 cordance with regulations prescribed pursuant to 26 U.S.C. 4082 and
16 such special fuel is only used for nonhighway purposes.
17 (e) Each distributor, manufacturer, importer, exporter or retailer
18 shall make full reports and furnish such further information as the direc-
19 tor may require with reference to all transactions upon which no tax is to
20 be paid.
21 Sec. 4. K.S.A. 1996 Supp. 79-3408c is hereby amended to read as
22 follows: 79-3408c. (a) A tax is hereby imposed on the use, sale or delivery
23 of all motor-vehicle fuel or special fuel owned at 12:01 a.m. July 1, 1989,
24 and on July 1 of each year thereafter, by any licensed distributor or li-
25 censed retailer at a rate per gallon, or fraction thereof, equal to the
26 amount, if any, by which the tax per gallon, or fraction thereof, in effect
27 on such date as prescribed by K.S.A. 79-3408, and amendments thereto,
28 exceeds the rate of tax upon such motor-vehicle fuel or special fuel which
29 was in effect on the preceding day. Such tax shall be paid by the licensed
30 distributor or licensed retailer owning such motor-vehicle fuel or special
31 fuel at such time and date. On or before the 25th day of the month in
32 which a tax is imposed under this section, every such distributor and retail
33 dealer shall make a report to the director on a form prescribed and fur-
34 nished by the director showing the total number of gallons, or fraction
35 thereof, of such motor-vehicle fuel or special fuel owned at the time the
36 tax is imposed under this section and such report shall be accompanied
37 by a remittance of the tax due.
38 Any licensed distributor or licensed retailer who shall fail to make such
39 report or pay such tax, within the time prescribed, shall be subject to the
40 same penalties and interest charges prescribed by the motor-vehicle fuel
41 or special fuel tax law for failure of a licensed distributor to make monthly
42 reports and payments of motor-vehicle fuel or special fuel tax. The pro-
43 visions of the motor-fuel tax law relating to remedies for the collection of
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1 delinquent motor-fuel taxes from distributors shall apply to the collection
2 of taxes imposed by this section which have become delinquent from
3 licensed distributors and licensed retailers. All taxes, penalties and inter-
4 est collected by the director under the tax imposed by this section shall
5 be paid by the director into the state treasury and the state treasurer shall
6 credit the same to the funds and in the amounts specified in K.S.A. 79-
7 34,142, and amendments thereto.
8 (b) Whenever the rate of tax upon motor-vehicle fuels or special fuels
9 fixed pursuant to K.S.A. 79-3408, and amendments thereto, which be-
10 come effective on July 1, 1989, or on July 1 in any year thereafter is less
11 than the rate of tax upon such fuel in effect on the preceding day, the
12 licensed distributor or licensed retailer owning such fuel at 12:01 a.m. on
13 the date such reduction in taxes becomes effective shall be entitled to a
14 refund of taxes paid upon such fuel in an amount equal to the amount by
15 which taxes were reduced from the amount of motor-vehicle fuels or
16 special fuels taxes per gallon, or fraction thereof, actually paid upon each
17 gallon, or fraction thereof, of motor-vehicle fuels or special fuels multi-
18 plied by the number of gallons of motor-vehicle fuels or special fuels
19 owned by the distributor or dealer on such date. On or before the 25th
20 day of the month in which such tax is reduced, every such distributor and
21 retailer shall make a report to the director on a form prescribed and
22 furnished by the director showing the total number of gallons of such
23 motor-vehicle fuel or special fuel owned by such distributor or retailer at
24 12:01 a.m. on the date upon which such tax was reduced. It shall be the
25 duty of the director of taxation to examine all such claims and determine
26 the amount to which each claimant is entitled. In the event any distributor
27 or retailer entitled to such refund shall owe the state any motor-vehicle
28 fuel or special fuel tax, penalties, or interest, the refund authorized by
29 this section shall upon being determined by the director be credited upon
30 the amount of such taxes, penalties and interest. Whenever the director
31 shall determine that any distributor or retailer shall be entitled to a refund
32 under any of the provisions of this section, and such refund cannot be
33 effected by giving credit therefor, as hereinbefore provided, or against
34 the future motor-vehicle fuel or special fuel tax liability of such taxpayer
35 the director shall certify the amount of the refund to the state director
36 of accounts and reports, who shall draw a warrant for the amount so
37 certified on the state treasurer in favor of the distributor or retailer en-
38 titled to such refund, and mail, or otherwise deliver, the same to the
39 distributor entitled thereto. Such warrant shall be paid by the state treas-
40 urer to such distributor or retailer from the motor-vehicle fuel or special
41 fuel tax refund fund.
42 (c) The provisions of this section shall not apply to any licensed re-
43 tailer who is a native American whose licensed place of business or busi-
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1 nesses are located on such retailer's reservation nor to native American
2 tribes having licensed places of business or businesses located on such
3 tribe's reservation.
4 Sec. 5. K.S.A. 1996 Supp. 79-3409 is hereby amended to read as
5 follows: 79-3409. Every distributor paying such tax or being liable for the
6 payment shall be entitled to charge and collect an amount, including the
7 cost of doing business that could include such tax on motor-vehicle fuels
8 or special fuels sold or delivered by such distributor, as a part of the selling
9 price. When the price of motor-vehicle fuels or special fuels posted on a
10 retail dealer's price sign does not include the state and federal tax which
11 such retail dealer's distributor paid or for which the distributor was liable,
12 the total of the taxes must be shown in numbers the same size as the
13 price of the motor fuel. Any deviation from the maximum price charged
14 for a given grade of motor-vehicle fuels or special fuels must be stated in
15 letters at least six inches high and legible. Fractions of cents must be
16 posted in numbers at least 1/5 the height of the whole number.
17 Sec. 6. K.S.A. 1996 Supp. 79-3412 is hereby amended to read as
18 follows: 79-3412. Whenever any person shall be in default for more than
19 10 days in payment of any taxes, penalties or interest accruing or accrued
20 under the provisions of this act, and no seizure of property of such delin-
21 quent distributor, manufacturer, importer, exporter or retailer person has
22 been made under any other provisions of this act, the director shall, unless
23 the director has good reason to the contrary, issue a warrant under the
24 secretary's or the secretary's designee's hand and official seal, directed to
25 the sheriff of any county of the state, commanding the sheriff to levy upon
26 and sell the real and personal property of the taxpayer found within the
27 sheriff's county for the payment of the amount thereof with the added
28 penalties, interest and cost of executing the warrant and to return the
29 warrant to the secretary or the secretary's designee and to pay to the
30 secretary or the secretary's designee the money collected by virtue of it
31 not more than 60 days from the date of the warrant. The sheriff, within
32 five days after the receipt of the warrant, shall file with the clerk of the
33 district court of the county a copy thereof, and thereupon the clerk shall
34 enter in the appearance docket the name of the taxpayer person specified
35 in the warrant, the amount of the tax or portion of it, interest and penalties
36 for which the warrant is issued and the date such copy is filed and note
37 the taxpayer's name in the general index. No fee shall be charged for
38 either entry. The amount of such warrant so docketed shall thereupon
39 become a lien upon the title to and interest in the real property of the
40 taxpayer against whom it is issued. The sheriff shall proceed in the same
41 manner and with the same effect as prescribed by law with respect to
42 executions issued against property upon judgments of a court of record
43 and shall be entitled to the same fees for services to be collected in the
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1 same manner.
2 The court in which the warrant is docketed shall have jurisdiction over
3 all subsequent proceedings as fully as though a judgment had been ren-
4 dered in the court. At the discretion of the secretary or the secretary's
5 designee, a warrant of like terms, force and effect may be issued and
6 directed to any officer or employee of the secretary, and in the execution
7 thereof, such officer or employee shall have all the powers conferred by
8 law upon sheriffs, with respect to executions issued against property upon
9 judgments of a court of record, and the subsequent proceedings there-
10 under shall be the same as provided where the warrant is issued directly
11 to the sheriff. The taxpayer shall have the right to redeem the real estate
12 within a period of 18 months from the date of such sale. If a warrant is
13 returned, unsatisfied in full, the secretary or the secretary's designee shall
14 have the same remedies to enforce the claim for taxes as if the state of
15 Kansas had recovered judgment against the taxpayer for the amount of
16 the tax. No law exempting any goods and chattels, lands and tenements
17 from forced sale under execution shall apply to a levy and sale under any
18 such warrant or upon any execution issued upon any judgment rendered
19 in any action for motor fuel taxes. The secretary or the secretary's des-
20 ignee shall have the right at any time after a warrant has been returned
21 unsatisfied or satisfied only in part, to issue alias warrants until the full
22 amount of the tax is collected.
23 Sec. 7. K.S.A. 79-3461 is hereby amended to read as follows: 79-
24 3461. A revolving fund designated as the motor-vehicle fuel tax refund
25 fund not to exceed one million dollars ($1,000,000) $1,000,000 shall be
26 set apart and maintained by the director from the motor-vehicle fuel tax
27 collected under the provisions of article 34 of chapter 79 of the General
28 Statutes of 1935 and the 1947 Supplement thereto and acts amendatory
29 thereof or supplemental Kansas Statutes Annotated, and amendments
30 thereto, and held by the state treasurer for the payment of all refunds
31 authorized by this act and for the payments to federally recognized tribes
32 of native Americans under section 1 of this act.
33 Sec. 8. K.S.A. 79-3461 and K.S.A. 1996 Supp. 79-3407, 79-3408, 79-
34 3408c, 79-3408g, 79-3409 and 79-3412 are hereby repealed.
35 Sec. 9. This act shall take effect and be in force from and after its
36 publication in the statute book.