MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Ways and Means

By: Representative Williams

AN ACT TO AMEND SECTIONS 27-55-5, 27-55-13, 27-55-303, 27-55-319, 27-57-305 AND 27-57-317, MISSISSIPPI CODE OF 1972, TO INCLUDE WITHIN THE DEFINITION OF THE TERM "DISTRIBUTOR" UNDER THE GASOLINE, OTHER MOTOR FUEL AND OIL EXCISE TAX LAWS, PERSONS LICENSED TO SELL GASOLINE, OTHER MOTOR FUEL OR OIL IN ANOTHER STATE OR JURISDICTION WHO ARE AUTHORIZED BY THAT STATE OR JURISDICTION TO COLLECT THE MISSISSIPPI EXCISE TAX ON GASOLINE, OTHER MOTOR FUEL OR OIL; TO AUTHORIZE A DISTRIBUTOR OF GASOLINE, OTHER MOTOR FUEL OR OIL TO TAKE A CREDIT FOR THE NUMBER OF GALLONS OF GASOLINE THAT SUCH DISTRIBUTOR PURCHASED DURING THE PRECEDING CALENDAR MONTH FROM A DISTRIBUTOR WHO PAYS THE MISSISSIPPI EXCISE TAX ON SUCH GASOLINE, OTHER MOTOR FUEL OR OIL; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 27-55-5, Mississippi Code of 1972, is amended as follows:

27-55-5. The words, terms and phrases as used in this article shall have the following meanings unless the context requires otherwise:

(a) "Gasoline" means (1) all products commonly or commercially known or sold as gasoline (excluding casinghead and absorption or natural gasoline) regardless of their classification or uses; and (2) any liquid prepared, advertised, offered for sale or sold for use as or commonly and commercially used as a fuel in internal combustion engines, which when subjected to distillation in accordance with the standard method of test for distillation of gasoline, naphtha, kerosene and similar petroleum products (American Society for Testing Materials Designation D-86) shows not less than ten percent (10%) distilled (recovered) below two hundred sixty (260) degrees Fahrenheit and not less than ninety-five percent (95%) distilled (recovered) below four hundred sixty-four (464) degrees Fahrenheit; provided, however, that "gasoline" shall not include liquefied gases which would not exist as liquid at a temperature of sixty (60) degrees Fahrenheit and at a pressure of fourteen and seven-tenths (14.7) pounds per square inch absolute; and provided further that "gasoline" shall not include commercial solvents or naphthas or raw petroleum products or petrochemicals intermediates when used as or sold for use in production or manufacture of plastics, detergents, synthetic rubber, herbicides or other chemicals or products which are not prepared, advertised, offered for sale or sold for use or suitable for use as fuel for generating power in internal combustion engines. The term "gasoline" shall include "aviation gasoline."

(b) "Aviation gasoline" means gasoline refined or manufactured, according to the specifications for aviation gasoline set forth in ASTM D-910, for exclusive use in reciprocating aviation engines.

(c) "Person" means any individual, firm, copartnership, joint venture, association, corporation, estate, trust or any other group or combination acting as a unit, and the plural as well as the singular number unless the intention to give a more limited meaning is disclosed by the context.

(d) "Distributor of gasoline" shall mean: (1) any person * * * importing gasoline into this state * * *; (2) any person * * * receiving, purchasing, acquiring, using, storing or selling any gasoline in this state on which the gasoline excise tax * * * imposed by this article has not been paid * * *; (3) refiners, blenders, marine terminal operators, or pipeline terminal operators; and (4) any person licensed to sell gasoline in another state or jurisdiction who is authorized by that state or jurisdiction to collect the gasoline excise tax imposed by this article.

(e) "Highway" shall mean every way or place, of whatever nature including public roads, toll roads, streets and alleys of this state generally open to the use of the public or to be opened or reopened to the use of the public for the purpose of vehicular travel, and notwithstanding that the same may be temporarily closed for the purpose of construction, reconstruction, maintenance or repair. Provided that the confines of a highway shall include the entire width and length of the right-of-way.

(f) "Refiner" shall mean every person who manufactures finished petroleum products from crude oil, unfinished oils, natural gas liquids, other hydrocarbons, or alcohol.

(g) "Bonded distributor of gasoline" means any person holding a valid gasoline distributor's permit issued by the commission.

(h) The term "for agricultural or maritime purposes," as used in this article, shall be construed to mean gasoline used in operating farm tractors or other farm equipment used exclusively in plowing, planting or harvesting farm products, or in operating boats, and no part of which is used in any motor vehicle or equipment driven or operated upon the public roads, streets or highways of this state; and such term shall also be construed to mean gasoline used as a fuel in a farm tractor using the highways solely in hauling or transporting farm products of the soil from the farm to a gin or market where the title to such products is still in the producer, or in transporting fertilizer or feed to the farm, where the title to such products is still in the user.

(i) The term "for industrial purposes," as used in this article, shall be construed to mean gasoline used in engines or motors of stationary or portable type for the purpose of operating machinery used for manufacturing or used for industrial purposes, and no part of which machinery is driven or operated upon the public roads, streets or highways of this state.

(j) The term "for domestic purposes," as used in this article, shall be construed to mean gasoline used for any other purpose than agricultural, maritime, industrial or manufacturing, and no part of which is used for operating motor vehicles or motor-propelled machines of any description along the public roads, streets, alleys or highways (as defined in this article) of this state.

(k) The term "for nonhighway purposes," as used in this article, shall be construed to mean gasoline used for any other purpose than agricultural, maritime, industrial, manufacturing or domestic purposes, and no part of which is used for operating motor vehicles or motor-propelled machines of any description along the public roads, streets, alleys or highways (as defined in this article) of this state.

(l) The term "for aviation purposes," as used in this article, shall mean gasoline used for the operation of aircraft.

(m) The term "refund gasoline," as used in this article, shall be construed to mean gasoline used or to be used for agricultural, maritime, industrial, manufacturing, domestic or nonhighway purposes only, as these terms are defined in this article.

(n) "Commission" means the State Tax Commission, acting either directly or through its duly authorized officers, agents or employees.

(o) The term "United States Government" shall mean and include all purchasing officers of the Armed Forces of the United States and the United States Property and Fiscal Officer for the State of Mississippi or any other state appointed pursuant to Section 708, Title 32, United States Code, when purchasing gasoline with federal funds for the account of and use by a component of the Armed Forces as herein defined.

(p) The term "Armed Forces" shall mean and include all components of the Armed Forces of the United States including the Army National Guard, the Army National Guard of the United States, the Air National Guard and the Air National Guard of the United States, as those terms are defined in Section 101, Title 10, United States Code, and any other reserve component of the Armed Forces of the United States enumerated in Section 261, Title 10, United States Code.

(q) "Blend stock" means ethanol, methanol or any other products blended with gasoline to produce motor fuel.

(r) "Blender" means any person other than a refiner who blends blend stock with gasoline or who sells or distributes blend stock for the purpose of being blended with gasoline.

SECTION 2. Section 27-55-13, Mississippi Code of 1972, is amended as follows:

27-55-13. For the purpose of determining the amount of his liability for the tax imposed by this article, each bonded distributor of gasoline shall, not later than the twentieth day of the month next following the month in which this article becomes effective, and not later than the twentieth day of each month thereafter, file with the commission a monthly report which shall include a statement of the number of gallons of gasoline or blend stock received by such distributor within this state during the preceding calendar month, and such other information as may be reasonably necessary for the proper administration of this article.

At the time of filing each monthly report with the commission, a distributor may take a credit for the number of gallons of gasoline that he purchased during the preceding calendar month from a distributor who pays the excise tax imposed by this article on such gasoline.

At the time of filing each monthly report with the commission, each distributor of gasoline shall pay to the commission the full amount of the gasoline tax due from such distributor for the preceding calendar month, less two percent (2%) to cover evaporation, shrinkage and other normal losses.

Reports and payments sent to the commission by mail must be postmarked by the due date in order to be considered timely filed, except when the due date falls on a weekend or holiday, in which case such reports and payments must be postmarked by the first working day following the due date in order to be considered timely filed.

The monthly report of the distributor of gasoline shall be prepared and filed with the commission on forms prescribed by the commission, or the distributor of gasoline may, with the approval of the commission, furnish the required information on machine-prepared schedules. Such monthly reports or schedules shall be signed by the distributor or his duly authorized agent and shall contain a declaration that the statements contained therein are true and correct and are made under the penalty of perjury.

SECTION 3. Section 27-55-303, Mississippi Code of 1972, is amended as follows:

27-55-303. The words, terms and phrases as used in this article shall have the following meanings unless the context requires otherwise:

(a) "Person" means any individual, firm, copartnership, joint venture, association, corporation, estate, trust, or any other group or combination acting as a unit, and the plural as well as the singular number unless the intention to give a more limited meaning is disclosed by the context.

(b) "Highway" means every way or place, of whatever nature, including public roads, toll roads, streets, and alleys of this state generally open to the use of the public or to be opened or reopened to the use of the public for the purpose of vehicular travel, and notwithstanding that the same may be temporarily closed for the purpose of construction, reconstruction, maintenance or repair. Provided that the confines of a highway shall include the entire width and length of the right-of-way.

(c) "Motor vehicle" means every vehicle designed, constructed for or used on the highways of this state which is self-propelled, except a farm tractor using the highways solely in hauling or transporting farm products of the soil from the farm to a gin or market which the title to such products is still in the producer, or a farm tractor used in transporting fertilizer or food to a farm which the title to such products is still in the user.

(d) "Other motor fuel" means all combustible gases and liquids used or usable for the generation of power for propulsion of motor vehicles except that it does not include gasoline as defined in the gasoline tax law nor does it include liquefied compressed gas.

(e) "Use" means, in addition to its ordinary meaning, the receipt of other motor fuel by any person into the fuel supply tank of a motor vehicle or into a receptacle from which other motor fuel is supplied by any person for his own or other motor vehicles.

(f) "Distributor of other motor fuel" means any person who imports, receives or acquires other motor fuel for sale or delivery to a retail dealer or user as herein defined; provided, however, that no person may qualify as a distributor for the sole purpose of using other motor fuel, as defined in this article, as a fuel to propel a motor vehicle or motor vehicles owned, leased or operated by him on the highways of this state. The term "distributor of other motor fuel" also means any person licensed to sell other motor fuel in another state or jurisdiction who is authorized by that state or jurisdiction to collect the tax imposed by this article on other motor fuel.

(g) "Retail dealer" means any person not licensed as a distributor of other motor fuel, who dispenses other motor fuel into the fuel tanks of motor vehicles for the propulsion of said motor vehicles or into receptacles for consumption in motor vehicles.

(h) "User" means any person who purchases or acquires other motor fuel for use in motor vehicles or who dispenses other motor fuel for consumption in such motor vehicles owned, leased or operated by him. The term "user" shall not include the United States Government when purchases of other motor fuel are made for use of the Armed Forces only and delivered in quantities of not less than four thousand (4,000) gallons.

(i) "Commission" means the State Tax Commission, acting either directly or through his duly authorized officers, agents or employees.

(j) The term "United States Government" shall include all purchasing officers of the Armed Forces of the United States and the United States Property and Fiscal Officer for the State of Mississippi or any other state appointed pursuant to Section 708, Title 32, United States Code, when purchasing other motor fuel with federal funds for the account of and use by a component of the Armed Forces as herein defined.

(k) "Armed Forces" means and includes all components of the Armed Forces of the United States including the Army National Guard, the Army National Guard of the United States, the Air National Guard and the Air National Guard of the United States, as those terms are defined in Section 101, Title 10, United States Code, and any other reserve component of the Armed Forces of the United States enumerated in Section 261, Title 10, United States Code.

SECTION 4. Section 27-55-319, Mississippi Code of 1972, is amended as follows:

27-55-319. For the purpose of determining the amount of his liability for the tax levied by this article, each distributor of other motor fuel shall, not later than the twentieth day of the month following the month in which this article becomes effective and not later than the twentieth day of each month thereafter, file with the commission a monthly report which shall include a statement of the number of gallons of other motor fuel sold by such distributor within this state during the preceding calendar month, and such other information as the commission may deem to be reasonably necessary in the proper administration of this article.

At the time of filing each monthly report with the commission, a distributor may take a credit for the number of gallons of other motor fuel that he purchased during the preceding calendar month from a distributor who pays the tax imposed by this article on such other motor fuel.

At the time of filing each monthly report with the commission, each distributor of other motor fuel shall pay to the commission the full amount of other motor fuel tax due from such distributor for the preceding calendar month.

Reports and payments sent to the commission by mail must be postmarked by the due date in order to be considered timely filed, except when the due date falls on a weekend or holiday, in which case such reports and payments must be postmarked by the first working day following the due date in order to be considered timely filed.

A distributor of other motor fuel may deduct from his monthly distributor's report and tax payment an amount equal to Five and Three-fourths Cents (5.754) per gallon of all other motor fuel that is shown to be taxable on such monthly report, provided that the tax levied by this article on such other motor fuel has been paid or the payment of which is covered by the bond of a distributor of other motor fuel.

The monthly report of the distributor of other motor fuel shall be prepared and filed with the commission on forms prescribed by the commission or such distributor may, with the approval of the commission, furnish the required information on machine-prepared schedules. Such monthly reports or schedules shall be signed by such distributor or his duly authorized agent and shall contain a declaration that the statements contained therein are true and are made under the penalty of perjury.

SECTION 5. Section 27-57-305, Mississippi Code of 1972, is amended as follows:

27-57-305. The words, terms and phrases as used in this article shall have the following meanings unless the context requires otherwise:

(a) "Oil" means kerosene, diesel fuel, fuel oils, and any petroleum fuel or any other product other than gasoline or compressed gas which is usable as fuel in an internal combustion engine, and any combustible liquid other than gasoline or compressed gas used or capable of being used as a fuel in aircraft.

(b) "Bunker oil" is defined as a residual product obtained in the refining of crude petroleum intended for use for the generation of heat in a firebox or furnace when its flash point, as determined by use of the Pensky-Martens tester, shall not be less than one hundred fifty (150) degrees Fahrenheit and when its viscosity at one hundred (100) degrees Fahrenheit shall not be less than one hundred fifty (150) seconds when determined by use of the Saybolt Universal Tubes.

(c) "Person" means any individual, firm, copartnership, joint venture, association, corporation, estate, trust, or any group or combination acting as a unit, and the plural as well as the singular number unless the intention to give a more limited meaning is disclosed by the context.

(d) "Distributor of oil" means (i) any person * * * importing oil into this state * * * and (ii) any person who shall * * * receive, purchase, acquire, use, store or sell any oil in this state on which the excise tax hereinafter imposed by this article has not been paid * * *; provided, that no person may qualify as a distributor of oil for the sole purpose of using oil, as defined in this article, as a fuel to propel a vehicle or vehicles owned or operated by him on the highways of this state. * * * The term "distributor of oil" shall also include all persons meeting the definition of * * * "refiners," "processors," "marine terminal operators" or "pipeline terminal operators," "blenders" and any person licensed to sell motor fuel in another state or jurisdiction who is authorized by that state or jurisdiction to collect the oil excise tax imposed by this article.

(e) "Bonded distributor of oil" means any person holding a valid distributor of oil permit issued by the State Tax Commission.

(f) "Refiner" or "processor" shall mean every person who shall receive, produce, manufacture, refine, distill, blend or compound oil in this state, when such person shall engage in any business incident to or necessary for refining or processing petroleum products in this state; provided further, that such refiner or processor must have at least two (2) ten-thousand-gallon or larger tanks for produce storage, and the blending or mixing process produces a finished product that has entirely different physical and chemical properties from the original products.

(g) The term "for agricultural or maritime purposes," as used in this article, shall be construed to mean oil used in operating farm tractors or other farm equipment used exclusively in plowing, planting or harvesting farm products or in operating boats, and no part of which is used in any motor vehicle or equipment driven or operated upon the public roads, streets or highways of this state; and such term shall also be construed to mean oil used as a fuel in a farm tractor using the highways solely in hauling or transporting farm products of the soil from the farm to a gin or market where the title to such products is still in the producer, or in transporting fertilizer or feed to the farm where the title to such products is still in the user.

(h) The term "for industrial purposes," as used in this article, shall be construed to mean oil used in engines or motors of stationary or portable type for the purpose of operating machinery used for manufacturing or used for industrial purposes, and no part of which machinery is driven or operated upon the public roads, streets or highways of this state; and oil used in operating aircraft.

(i) The term "for domestic purposes," as used in this article, shall be construed to mean oil used for any other purpose than agricultural, maritime, industrial or manufacturing purposes, and no part of which is used for operating motor vehicles or motor-propelled machines of any description along the public roads, streets, alleys or highways of this state.

(j) The term "for nonhighway purposes," as used in this article, shall be construed to mean oil used for any other purpose than agricultural, maritime, industrial, manufacturing or domestic purposes, and no part of which is used for operating motor vehicles or motor-propelled machines of any description along the public roads, streets, alleys or highways of this state as defined in this article.

(k) "Highway" shall mean every way or place of whatever nature, including public roads, toll roads, streets and alleys of this state generally open to the use of the public or to be opened or reopened to the use of the public for the purpose of vehicular travel, and notwithstanding that the same may be temporarily closed for the purpose of construction, reconstruction, maintenance or repair. Provided, that the confines of a highway shall include the entire width and length of the right-of-way.

(l) The term "nonhighway diesel fuel or kerosene," as used in this article, shall be construed to mean diesel fuel or kerosene used or to be used for agricultural, maritime, industrial, manufacturing, domestic or nonhighway purposes only as these terms are herein defined.

(m) "Commission" means the State Tax Commission of the State of Mississippi, acting either directly or through its duly authorized officers, agents or employees.

(n) "Terminal" means a tank farm within the State of Mississippi with storage capacity for the receipt of a full barge delivery or common carrier pipeline delivery of taxable petroleum products when such products are to be distributed within the state.

(o) "Marine dealer" means any person selling oil from marine or dockside storage facilities when such oil is for use in boats, vessels, barges or ships.

(p) For the purposes of this article, the term "United States Government" shall include all purchasing officers of the Armed Forces of the United States and the United States Property and Fiscal Officer for the State of Mississippi or any other state appointed pursuant to Section 708, Title 32, United States Code, when purchasing oil with federal funds for the account of and use by a component of the Armed Forces as herein defined.

(q) For the purposes of this article, the term "Armed Forces" means and includes all components of the Armed Forces of the United States including the Army National Guard, the Army National Guard of the United States, the Air National Guard and the Air National Guard of the United States, as those terms are defined in Section 101, Title 10, United States Code, and any other reserve component of the Armed Forces of the United States enumerated in Section 261, Title 10, United States Code.

SECTION 6. Section 27-57-317, Mississippi Code of 1972, is amended as follows:

27-57-317. For the purpose of determining the amount of his liability for the tax imposed by this article, each bonded distributor of oil shall, not later than the twentieth day of the month next following the month in which this article becomes effective, and not later than the twentieth day of each month thereafter, file with the commission a monthly report which shall include a statement of the number of gallons of oil received by such distributor of oil within this state during the preceding calendar month, and such other information as may be reasonably necessary for the proper administration of this article.

At the time of filing each monthly report with the commission, a distributor may take a credit for the number of gallons of oil that he purchased during the preceding calendar month from a distributor who pays the excise tax imposed by this article on such oil.

At the time of filing each monthly report with the commission, each distributor of oil shall pay to the commission the full amount of the oil tax due from such distributor for the preceding calendar month.

Reports and payments sent to the commission by mail must be postmarked by the due date in order to be considered timely filed, except when the due date falls on a weekend or holiday, in which case such reports and payments must be postmarked by the first working day following the due date in order to be considered timely filed.

The monthly report of the distributor of oil shall be prepared and filed with the commission on forms prescribed by the commission, or the distributor of oil may, with the approval of the commission, furnish the required information on machine-prepared schedules. Such monthly reports or schedules shall be signed by the distributor or his duly authorized agent and shall contain a declaration that the statements contained therein are true and correct and are made under the penalty of perjury.

When oil, which would otherwise be taxable under the provisions of this article, is imported, sold, delivered, or exported, under conditions which will exclude such oil from the tax levied under this article by reasons of one or more of the exemptions provided in this article, deduction for such exempt oil may be taken without prior approval of the commission on the monthly report of the bonded distributor of oil importing, selling, delivering, or exporting such oil. Provided, however, that the commission may require proof to be furnished of such deduction for exempt oil.

SECTION 7. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action for taxes due or accrued under the gasoline and other motor fuel and oil tax laws before the date on which this act becomes effective, whether such claims, assessments, appeals, suits or actions have been begun before the date on which this act becomes effective or are begun thereafter; and the provisions of the gasoline, other motor fuel and oil tax laws are expressly continued in full force, effect and operation for the purpose of the assessment, collection and enrollment of liens for any taxes due or accrued and the execution of any warrant under such laws before the date on which this act becomes effective, and for the imposition of any penalties, forfeitures or claims for failure to comply with such laws.

SECTION 8. This act shall take effect and be in force from and after its passage.