House Bill 1031

AN ACT TO AMEND SECTIONS 27-65-85 AND 27-67-31, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE STATE TAX COMMISSION TO REVIEW CERTAIN RECORDS OF DELIVERY CARRIERS IN THIS STATE; TO REQUIRE SUCH CARRIERS TO MAKE CERTAIN RECORDS AND OTHER INFORMATION AVAILABLE FOR INSPECTION AND REVIEW BY THE STATE TAX COMMISSION; TO IMPOSE PENALTIES FOR FAILURE TO PROVIDE THOSE RECORDS TO THE COMMISSION; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 27-65-85, Mississippi Code of 1972, is amended as follows:

27-65-85. (1) It shall be unlawful for any person to engage or continue in any business for which a tax is imposed by this chapter without procuring a license as required by Section 27-65-27 of this chapter, or after such license has been revoked, or who shall fail or refuse to make the return provided to be made in Section 27-65-33 of this chapter. It shall be unlawful for any person to make any false or fraudulent return or false statement in any return, with intent to defraud the state or to evade the payment of the tax or any part thereof; or for any person to aid or abet another in any attempt to evade the payment of the tax, or any part thereof; or for the president, vice president, secretary or treasurer of any company to make or permit to be made for any company or association any false return, or any false statement in any return required by this chapter with the intent to evade the payment of the tax due. It shall be unlawful for any person to fail or refuse to permit the examination of any book, paper, account, record, or other data by the commissioner, or his duly appointed agent, as required by this chapter, including the records of any * * * carrier, bank, wholesale or retail dealer in any kind of merchandise whether in regard to his own or another's return; or to fail or refuse to permit the inspection or appraisal of any property by the commissioner or his duly appointed agent; or to refuse to offer testimony or produce any record as required by this chapter.

Except as otherwise provided, any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and, on conviction thereof, shall be fined not more than Five Hundred Dollars ($500.00), or imprisoned not exceeding six (6) months in the county jail, or punished by both such fine and imprisonment, at the discretion of the court, within the limitations aforesaid.

(2) (a) As used in this section, the word "carrier" means a common carrier, a contract carrier or a person operating a private vehicle that uses the public roads and highways of this state to transport merchandise for sale to a destination in this state. It shall be unlawful for any carrier to fail to have in his or her possession at all times while such merchandise is being transported, and allow inspection of, the invoices, sales tickets, bills of lading, waybill, freight bill or other documentation that will correctly disclose the nature and quantity of such merchandise and the consignor, consignee, the shipper, the intended recipient and destination of each article being transported. However, the records of a common carrier shall be open for inspection at any time for the purpose of obtaining any information bearing upon the administration of this chapter. In the case of any vehicle engaged in the transportation of merchandise for sale * * *, the commissioner or his authorized agents may examine such documentation purporting to disclose the merchandise being transported and/or indicating the consignor, consignee, shippers, intended recipients and destination of such merchandise that is carried by the person in charge of such vehicle, and may compare them with the character and quantity of merchandise being transported and the consignee thereof, for the purpose of ascertaining whether or not the provisions of law are being complied with. The absence of such documentation indicating to whom said merchandise belongs, or is to be delivered, in the hands of such person so engaged in transporting the merchandise, shall be prima facie evidence that such person is transporting such merchandise in violation of this chapter and liable for all penalties imposed under this section.

In addition to the production of documents while merchandise for sale is being transported, the records of a carrier shall be open for inspection at any time for the purpose of obtaining any information bearing upon the administration of this chapter.

(b) If information concerning the consignor, consignee, shipper, recipient, destination, nature, description, value, insured value, and/or quantity of any article transported by the carrier to a location in this state is maintained at any time in the form of electronic data on a computer information system and/or on an electronic data storage media to which the carrier has access, the carrier shall, upon request of the commissioner or his authorized agent, provide any or all such information to the commissioner or his authorized agent in a format specified by the commissioner or his authorized agent. The information shall also be provided on the media and/or by the method of transfer specified by the commissioner or his authorized agent. The carrier will bear the cost of providing this information to the commissioner or his authorized agent including, but not limited to, the cost of putting the information in the format specified and the cost of the media an/or method used to transfer the information to the commissioner or his authorized agent.

(c) All records of a carrier concerning the transportation of merchandise for sale to a destination in this state including, but not limited to, the information maintained in the form of electronic data on a computer information system and/or on an electronic data storage media, shall be maintained by the carrier for three (3) years. If the carrier wishes to maintain such records and/or information for a period less than three (3) years, the carrier may request the commissioner to set a shorter period of time for the retention of such records and/or information. In setting a shorter retention period, the commissioner may require the carrier to provide him or his authorized agent any and all of the information maintained in the form of electronic data on a computer information system and/or on an electronic data storage media at prescribed intervals of time in a specified format. The information shall also be provided on the media and/or by the method of transfer specified by the commissioner or his authorized agent. The carrier will bear the cost of providing this information at these prescribed intervals including, but not limited to, the cost of putting the information in the format specified and the cost of the media and/or method used to transfer the information to the commissioner or his authorized agent.

(d) Any carrier who fails or refuses to provide to the commissioner or his authorized representative information from a computer information system and/or an electronic data storage media as provided in this subsection or who fails or refuses to maintain such information as provided above shall be in violation of this chapter and liable for all penalties imposed under this section. In addition, for the failure or refusal to provide and/or maintain the information, the commissioner may file suit in the chancery court of the First Judicial District of Hinds County, Mississippi, to compel production of the information and/or for any damages sustained by the State of Mississippi as a result of the carrier's failure or refusal to provide and/or maintain this information including, but not limited to, the sales tax revenue that could have been established from this information. If successful in this action in any respect, the commissioner shall be entitled to his costs in bringing this action including, but not limited to, reasonable attorney's fees.

(e) Any carrier that fails or refuses to provide to the commissioner or his authorized representative information from a computer information system and/or an electronic data storage media as provided in this subsection or who fails or refuses to maintain the information as provided in this subsection shall be guilty of a misdemeanor and on conviction thereof shall be fined Five Hundred Dollars ($500.00) for each day of violation.

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(3) The commissioner may require the attendance of any person and take his testimony with respect to any matter pertaining to any taxpayer's liability for taxes under this chapter, with power to administer oaths to such person or persons. If any person summoned as a witness shall fail to obey any summons to appear before the commissioner or his authorized agent, or shall refuse to testify or answer any material question or to produce any book, record, paper or other data when required to do so, such failure or refusal shall be reported to the Attorney General, the district attorney or county attorney, who shall thereupon institute proceedings in the circuit court of the county where such witness resides to compel obedience to any summons of the commissioner, or his authorized agent. Said proceedings shall be by petition for citation to such person refusing to obey such summons, to show cause why such person should not be required to obey such summons; and the circuit judge of the district may hear such petition in term time or vacation upon two (2) days' notice to the person sought to be cited; and the circuit judge may enter such order as he may deem proper, and punish any failure to comply with such order as for any other contempt of said court. Officers who serve summonses or subpoenas, and witnesses attending, shall receive like compensation as officers and witnesses in the justice of the peace courts; and such compensation shall be paid from the proper appropriation for the administration of this chapter.

(4) In addition to the foregoing penalties, any person who shall knowingly swear to or verify any false or fraudulent return or statement, with the intent aforesaid shall be guilty of the offense of perjury and upon conviction thereof, shall be punished in the manner provided by law.

SECTION 2. Section 27-67-31, Mississippi Code of 1972, is amended as follows:

27-67-31. All administrative provisions of the sales tax law, and amendments thereto, including those which fix damages, penalties and interest for failure to comply with the provisions of said sales tax law, and all other requirements and duties imposed upon taxpayer, shall apply to all persons liable for use taxes under the provisions of this article. The commissioner shall exercise all power and authority and perform all duties with respect to taxpayers under this article as are provided in said sales tax law, except where there is conflict, then the provisions of this article shall control.

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On or before the fifteenth day of each month, the amount received from taxes, damages and interest under the provisions of this article during the preceding month shall be paid and distributed as follows:

(a) On or before July 15, 1994, through July 15, 2000, and each succeeding month thereafter, two and two hundred sixty-six one-thousandths percent (2.266%) of the total use tax revenue collected during the preceding month under the provisions of this article shall be deposited in the School Ad Valorem Tax Reduction Fund created pursuant to Section 37-61-35. On or before August 15, 2000, and each succeeding month thereafter, two and two hundred sixty-six one-thousandths percent (2.266%) of the total use tax revenue collected during the preceding month under the provisions of this chapter shall be deposited into the School Ad Valorem Tax Reduction Fund created under Section 37-61-35 until such time that the total amount deposited into the fund during a fiscal year equals Four Million Dollars ($4,000,000.00). Thereafter, the amounts diverted under this paragraph (a) during the fiscal year in excess of Four Million Dollars ($4,000,000.00) shall be deposited into the Education Enhancement Fund created under Section 37-61-33 for appropriation by the Legislature as other education needs and shall not be subject to the percentage appropriation requirements set forth in Section 37-61-33.

(b) On or before July 15, 1994, and each succeeding month thereafter, nine and seventy-three one-thousandths percent (9.073%) of the total use tax revenue collected during the preceding month under the provisions of this article shall be deposited into the Education Enhancement Fund created pursuant to Section 37-61-33.

(c) On or before July 15, 1997, and on or before the fifteenth day of each succeeding month thereafter, the revenue collected under the provisions of this article imposed and levied as a result of Section 27-65-17(2) and the corresponding levy in Section 27-65-23 on the rental or lease of private carriers of passengers and light carriers of property as defined in Section 27-51-101 shall be deposited into the Motor Vehicle Ad Valorem Tax Reduction Fund created pursuant to Section 27-51-105.

(d) On or before July 15, 1997, and on or before the fifteenth day of each succeeding month thereafter and after the deposits required by paragraphs (a) and (b) of this section are made, the remaining revenue collected under the provisions of this article imposed and levied as a result of Section 27-65-17(1) and the corresponding levy in Section 27-65-23 on the rental or lease of private carriers of passengers and light carriers of property as defined in Section 27-51-101 shall be deposited into the Motor Vehicle Ad Valorem Tax Reduction Fund created pursuant to Section 27-51-105.

(e) The remainder of the amount received from taxes, damages and interest under the provisions of this article shall be paid into the General Fund of the State Treasury by the commissioner.

As hereinafter used in this section, the word "carrier" means a common carrier, a contract carrier or a person operating a private vehicle that uses the public roads and highways of this state to transport tangible personal property to a destination in this state. All records of a carrier shall be open for inspection at any time for the purpose of obtaining any information bearing upon the administration of this chapter. If information concerning the consignor, consignee, shipper, recipient, destination, nature, description, value, insured value, and/or quantity of any article of tangible personal property transported by the carrier to a location in this state is maintained at any time in the form of electronic data on a computer information system and/or on an electronic data storage media to which the carrier has access, the carrier shall, upon request of the commissioner or his authorized agent, provide any or all such information to the commissioner or his authorized agent in a format specified by the commissioner or his authorized agent. The information shall also be provided on the media and/or by the method of transfer specified by the commissioner or his authorized agent. The carrier will bear the cost of providing this information to the commissioner or his authorized agent including, but not limited to, the cost of putting the information in the form specified and the cost of the media and/or method used to transfer the information to the commissioner or his authorized agent.

All records of a carrier concerning the transportation of tangible personal property to a destination in this state including, but not limited to, the information maintained in the form of electronic data on a computer information system and/or on an electronic data storage media, shall be maintained by the carrier for three (3) years. If the carrier wishes to maintain the records and/or information for a period less than three (3) years, the carrier may request the commissioner to set a shorter period of time for the retention of such records and/or information. In setting a shorter retention period, the commissioner may require the carrier to provide him or his authorized agent any and all of the information maintained in the form of electronic data on a computer information system and/or on electronic data storage media at prescribed intervals of time in a specified format. The information shall also be provided on the media and/or by the method of transfer specified by the commissioner or his authorized agent. The carrier will bear the cost of providing this information at these prescribed intervals including, but not limited to, the cost of putting the information in the format specified and the cost of the media and/or method used to transfer the information to the commissioner or his authorized agent. Any carrier who fails or refuses to provide to the commissioner or his authorized representative information from a computer information system and/or an electronic data storage media as provided above or who fails or refuses to maintain the information as provided above shall be in violation of this chapter and liable for all penalties imposed under this section. In addition, for the failure or refusal to provide and/or maintain the information, the commissioner may file suit in the Chancery Court of the First Judicial District of Hinds County, Mississippi, to compel production of such information and/or for any damages sustained by the State of Mississippi as a result of the carrier's failure or refusal to provide and/or maintain this information including, but not limited to, the use tax revenue that could have been established from this information. If successful in this action in any respect, the commissioner shall be entitled to his costs in bringing this action including, but not limited to, reasonable attorney's fees. Any carrier that fails or refuses to provide to the commissioner or his authorized representative information from a computer information system and/or an electronic data storage media as provided above or who fails or refuses to maintain the information as provided above shall be guilty of a misdemeanor and on conviction thereof shall be fined Five Hundred Dollars ($500.00) per day until such carrier provides or maintains the information that is required above.

In addition to the foregoing penalties, any person who shall knowingly swear to or verify any false or fraudulent return or statement, with the intent aforesaid shall be guilty of the offense of perjury and, on conviction thereof, shall be punished in the manner provided by law.

SECTION 3. This act shall take effect and be in force from and after July 1, 2005.