CHAPTER 96
SENATE BILL No. 421
An Act concerning the taxation of motor
vehicle fuels; imposing incidence of tax on the
distributor; amending K.S.A. 79-3407, 79-3408,
79-3408c, 79-3409 and 79-3412 and
repealing the existing sections; also
repealing K.S.A. 79-3408g.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 79-3407 is hereby amended to read as
follows:
79-3407. Whenever any distributor, manufacturer,
importer, or exporter
is 10 days delinquent in the payment of any such tax, penalty or
interest,
or any distributor, manufacturer, importer, exporter or
retailer is 10 days
delinquent in the making of any such report, or the payment
of any such
tax, penalty or interest, or shall make any false
report or statement or
application purporting to be under the provisions of this act, or
shall make
any false statement in any application, report or statement
required by
or purporting to be under the provisions of this act, or purporting
to be
under the rules and regulations promulgated by the director under
such
provisions, or shall have willfully or persistently violated any of
the pro-
visions of this act or of any rules and regulations made
thereunder, the
director upon conducting a hearing as provided in this section and
upon
finding to the director's satisfaction upon such hearing, that such
distrib-
utor, manufacturer, importer, exporter or retailer has been
delinquent,
or has violated provisions of this act, may revoke any or all
licenses issued
to such distributor, manufacturer, importer, exporter or
retailer.
Hearings under this section shall be conducted in accordance with
the
Kansas administrative procedure act. In the event that the director
re-
vokes any license or licenses the distributor, manufacturer,
importer, ex-
porter or retailer to whom such license or licenses were issued
shall im-
mediately, upon service of the director's order, surrender the same
to the
director and cease using, selling, delivering or manufacturing any
mo-
tor-vehicle fuels or special fuels at or from any places of
business or
stations for which the license or licenses have been revoked.
Sec. 2. K.S.A. 79-3408 is hereby amended to read as
follows: 79-
3408. (a) A tax per gallon or fraction thereof, at the rate
computed as
prescribed in K.S.A. 79-34,141, and amendments thereto, is hereby
im-
posed on the use, sale or delivery of all motor vehicle fuels or
special
fuels which are used, sold or delivered in this state for any
purpose what-
soever.
(b) Every retail pump for motor-vehicle fuels shall be
conspicuously
labeled to show the content and percentage of any ethyl alcohol or
other
alcohol combined or alone in excess of 1% by volume.
(c) Unless otherwise specified in K.S.A. 79-3408c, and
amendments
thereto, the incidence of this tax is imposed on the distributor
of the first
receipt of the motor fuel and such taxes shall be paid but
once. Such tax
shall be computed on all motor-vehicle fuels or special fuels
received by
each distributor, manufacturer, or importer
or retailer in this state and
paid in the manner provided for herein, except that an allowance of
2.5%
shall be made and deducted by the distributor to cover all ordinary
losses
in which may have resulted from physical loss
while handling such motor-
vehicle fuels or special fuels. No such allowance shall be made on
any
motor-vehicle fuel or special fuel exported from the state or sold
to the
United States of America or any of its agencies or
instrumentalities as are
now or hereinafter exempt by law from liability to state taxation.
No such
allowance shall be made for any motor-vehicle fuel or special fuel
sold or
disposed of to a consumer in tank car, transport or pipeline
lots.
(d) No tax is hereby imposed upon or with respect to the
following
transactions:
(1) The sale or delivery of motor-vehicle fuel or special fuel
for export
from the state of Kansas to any other state or territory or to any
foreign
country.
(2) The sale or delivery of motor-vehicle fuel or special fuel
to the
United States of America and such of its agencies as are now or
hereafter
exempt by law from liability to state taxation.
(3) The sale or delivery of motor-vehicle fuel or special fuel
to a
contractor for use in performing work for the United States or
those
agencies of the United States above mentioned, provided such
contractor
has in effect with the United States or any such agency a
cost-plus-a-
fixed-fee contract covering the work.
(4) The sale or delivery of motor-vehicle fuel or special fuel
which is
aviation fuel.
(5) The first sale or delivery of motor-vehicle fuel or
special fuel from
a refinery, pipeline terminal, pipeline tank farm or other place to
a duly
licensed distributor who in turn resells to another duly licensed
distrib-
utor.
(6) The sale or delivery of special fuel which is indelibly
dyed in ac-
cordance with regulations prescribed pursuant to 26 U.S.C. 4082
and
such special fuel is only used for nonhighway purposes.
(e) Each distributor, manufacturer, importer, exporter or
retailer
shall make full reports and furnish such further information as the
direc-
tor may require with reference to all transactions upon which no
tax is to
be paid.
Sec. 3. K.S.A. 79-3408c is hereby amended to read as
follows: 79-
3408c. (a) A tax is hereby imposed on the use, sale or delivery of
all motor-
vehicle fuel or special fuel owned at 12:01 a.m. July 1, 1989, and
on July
1 of each year thereafter, by any licensed distributor or licensed
retailer
at a rate per gallon, or fraction thereof, equal to the amount, if
any, by
which the tax per gallon, or fraction thereof, in effect on such
date as
prescribed by K.S.A. 79-3408, and amendments thereto, exceeds the
rate
of tax upon such motor-vehicle fuel or special fuel which was in
effect on
the preceding day. Such tax shall be paid by the licensed
distributor or
licensed retailer owning such motor-vehicle fuel or special fuel at
such
time and date. On or before the 25th day of the month in which a
tax is
imposed under this section, every such distributor and retail
dealer shall
make a report to the director on a form prescribed and furnished by
the
director showing the total number of gallons, or fraction thereof,
of such
motor-vehicle fuel or special fuel owned at the time the tax is
imposed
under this section and such report shall be accompanied by a
remittance
of the tax due.
Any licensed distributor or licensed retailer who shall fail to
make such
report or pay such tax, within the time prescribed, shall be
subject to the
same penalties and interest charges prescribed by the motor-vehicle
fuel
or special fuel tax law for failure of a licensed distributor to
make monthly
reports and payments of motor-vehicle fuel or special fuel tax. The
pro-
visions of the motor-fuel tax law relating to remedies for the
collection of
delinquent motor-fuel taxes from distributors shall apply to the
collection
of taxes imposed by this section which have become delinquent
from
licensed distributors and licensed retailers. All taxes, penalties
and inter-
est collected by the director under the tax imposed by this section
shall
be paid by the director into the state treasury and the state
treasurer shall
credit the same to the funds and in the amounts specified in K.S.A.
79-
34,142, and amendments thereto.
(b) Whenever the rate of tax upon motor-vehicle fuels or
special fuels
fixed pursuant to K.S.A. 79-3408, and amendments thereto, which
be-
come effective on July 1, 1989, or on July 1 in any year thereafter
is less
than the rate of tax upon such fuel in effect on the preceding day,
the
licensed distributor or licensed retailer owning such fuel at 12:01
a.m. on
the date such reduction in taxes becomes effective shall be
entitled to a
refund of taxes paid upon such fuel in an amount equal to the
amount by
which taxes were reduced from the amount of motor-vehicle fuels
or
special fuels taxes per gallon, or fraction thereof, actually paid
upon each
gallon, or fraction thereof, of motor-vehicle fuels or special
fuels multi-
plied by the number of gallons of motor-vehicle fuels or special
fuels
owned by the distributor or dealer on such date. On or before the
25th
day of the month in which such tax is reduced, every such
distributor and
retailer shall make a report to the director on a form prescribed
and
furnished by the director showing the total number of gallons of
such
motor-vehicle fuel or special fuel owned by such distributor or
retailer at
12:01 a.m. on the date upon which such tax was reduced. It shall be
the
duty of the director of taxation to examine all such claims and
determine
the amount to which each claimant is entitled. In the event any
distributor
or retailer entitled to such refund shall owe the state any
motor-vehicle
fuel or special fuel tax, penalties, or interest, the refund
authorized by
this section shall upon being determined by the director be
credited upon
the amount of such taxes, penalties and interest. Whenever the
director
shall determine that any distributor or retailer shall be entitled
to a refund
under any of the provisions of this section, and such refund cannot
be
effected by giving credit therefor, as hereinbefore provided, or
against
the future motor-vehicle fuel or special fuel tax liability of such
taxpayer
the director shall certify the amount of the refund to the state
director
of accounts and reports, who shall draw a warrant for the amount
so
certified on the state treasurer in favor of the distributor or
retailer en-
titled to such refund, and mail, or otherwise deliver, the same to
the
distributor entitled thereto. Such warrant shall be paid by the
state trea-
surer to such distributor or retailer from the motor-vehicle fuel
or special
fuel tax refund fund.
(c) The provisions of this section shall not apply to any
licensed re-
tailer who is a native American whose licensed place of business
or busi-
nesses are located on such retailer's reservation, nor to any
native Amer-
ican tribes having licensed places of business or businesses
located on such
tribe's reservation.
Sec. 4. K.S.A. 79-3409 is hereby amended to read as
follows: 79-
3409. Every distributor paying such tax or being liable for the
payment
shall be entitled to charge and collect an amount, including the
cost of
doing business that could include such tax on motor-vehicle
fuels or spe-
cial fuels sold or delivered by such distributor, as a part of the
selling
price. When the price of motor-vehicle fuels or special fuels
posted on a
price sign does not include the state and federal tax which such
retail
dealer's distributor paid or for which the distributor was
liable, the total
of the taxes must be shown in numbers the same size as the price of
the
motor fuel. Any deviation from the maximum price charged for a
given
grade of motor-vehicle fuels or special fuels must be stated in
letters at
least six inches high and legible. Fractions of cents must be
posted in
numbers at least 1/5 the height of the whole number.
Sec. 5. K.S.A. 79-3412 is hereby amended to read as
follows: 79-
3412. Whenever any person shall be in default for more than 10 days
in
payment of any taxes, penalties or interest accruing or accrued
under the
provisions of this act, and no seizure of property of such
delinquent dis-
tributor, manufacturer, importer, exporter or
retailer person has been
made under any other provisions of this act, the director shall,
unless the
director has good reason to the contrary, issue a warrant under the
sec-
retary's or the secretary's designee's hand and official seal,
directed to the
sheriff of any county of the state, commanding the sheriff to levy
upon
and sell the real and personal property of the taxpayer found
within the
sheriff's county for the payment of the amount thereof with the
added
penalties, interest and cost of executing the warrant and to return
the
warrant to the secretary or the secretary's designee and to pay to
the
secretary or the secretary's designee the money collected by virtue
of it
not more than 60 days from the date of the warrant. The sheriff,
within
five days after the receipt of the warrant, shall file with the
clerk of the
district court of the county a copy thereof, and thereupon the
clerk shall
enter in the appearance docket the name of the
taxpayer person specified
in the warrant, the amount of the tax or portion of it, interest
and penalties
for which the warrant is issued and the date such copy is filed and
note
the taxpayer's name in the general index. No fee shall be charged
for
either entry. The amount of such warrant so docketed shall
thereupon
become a lien upon the title to and interest in the real property
of the
taxpayer against whom it is issued. The sheriff shall proceed in
the same
manner and with the same effect as prescribed by law with respect
to
executions issued against property upon judgments of a court of
record
and shall be entitled to the same fees for services to be collected
in the
same manner.
The court in which the warrant is docketed shall have jurisdiction
over
all subsequent proceedings as fully as though a judgment had been
ren-
dered in the court. At the discretion of the secretary or the
secretary's
designee, a warrant of like terms, force and effect may be issued
and
directed to any officer or employee of the secretary, and in the
execution
thereof, such officer or employee shall have all the powers
conferred by
law upon sheriffs, with respect to executions issued against
property upon
judgments of a court of record, and the subsequent proceedings
there-
under shall be the same as provided where the warrant is issued
directly
to the sheriff. The taxpayer shall have the right to redeem the
real estate
within a period of 18 months from the date of such sale. If a
warrant is
returned, unsatisfied in full, the secretary or the secretary's
designee shall
have the same remedies to enforce the claim for taxes as if the
state of
Kansas had recovered judgment against the taxpayer for the amount
of
the tax. No law exempting any goods and chattels, lands and
tenements
from forced sale under execution shall apply to a levy and sale
under any
such warrant or upon any execution issued upon any judgment
rendered
in any action for motor fuel taxes. The secretary or the
secretary's des-
ignee shall have the right at any time after a warrant has been
returned
unsatisfied or satisfied only in part, to issue alias warrants
until the full
amount of the tax is collected.
Sec. 6. K.S.A. 79-3407, 79-3408, 79-3408c, 79-3408g,
79-3409 and
79-3412 are hereby repealed.
Sec. 7. This act shall take effect and be in force from
and after its
publication in the statute book.
Approved April 9, 1998
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