HB 1001-.087_ Filed 01/22/2008, 07:47 Dodge


Text Box


    PREVAILED      Roll Call No. _______
    FAILED        Ayes _______
    WITHDRAWN        Noes _______
    RULED OUT OF ORDER


[

HOUSE MOTION ____

]

MR. SPEAKER:

    I move that House Bill 1001 be amended to read as follows:

SOURCE: Page 159, line 24; (08)MO1001141.159. -->     Page 159, between lines 24 and 25, begin a new paragraph and insert:
SOURCE: IC 6-2.5-4-1; (08)MO1001141.177. -->     "SECTION 177. IC 6-2.5-4-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1. (a) A person is a retail merchant making a retail transaction when he engages in selling at retail.
    (b) A person is engaged in selling at retail when, in the ordinary course of his regularly conducted trade or business, he:
        (1) acquires tangible personal property for the purpose of resale; and
        (2) transfers that property to another person for consideration.
    (c) For purposes of determining what constitutes selling at retail, it does not matter whether:
        (1) the property is transferred in the same form as when it was acquired;
        (2) the property is transferred alone or in conjunction with other property or services; or
        (3) the property is transferred conditionally or otherwise.
    (d) Notwithstanding subsection (b), a person is not selling at retail if he is making a wholesale sale as described in section 2 of this chapter.
    (e) The gross retail income received from selling at retail is only taxable under this article to the extent that the income represents:
        (1) the price of the property transferred, without the rendition of

any service; and
        (2) except as provided in subsection (g), any bona fide charges which are made for preparation, fabrication, alteration, modification, finishing, completion, delivery, or other service performed in respect to the property transferred before its transfer and which are separately stated on the transferor's records.
For purposes of this subsection, a transfer is considered to have occurred after delivery of the property to the purchaser.
    (f) Notwithstanding subsection (e):
        (1) in the case of retail sales of gasoline (as defined in IC 6-6-1.1-103) and special fuel (as defined in IC 6-6-2.5-22), the gross retail income received from selling at retail is the total sales price of the gasoline or special fuel minus the part of that price attributable to tax imposed under IC 6-6-1.1, IC 6-6-2.5, IC 6-6-12, or Section 4041(a) or Section 4081 of the Internal Revenue Code; and
        (2) in the case of retail sales of cigarettes (as defined in IC 6-7-1-2), the gross retail income received from selling at retail is the total sales price of the cigarettes including the tax imposed under IC 6-7-1.
    (g) Gross retail income does not include income that represents charges for serving or delivering food and food ingredients furnished, prepared, or served for consumption at a location, or on equipment, provided by the retail merchant. However, the exclusion under this subsection only applies if the charges for the serving or delivery are stated separately from the price of the food and food ingredients when the purchaser pays the charges.".

SOURCE: Page 161, line 8; (08)MO1001141.161. -->     Page 161, between lines 8 and 9, begin a new paragraph and insert:
SOURCE: IC 6-2.5-7-1; (08)MO1001141.3. -->     "SECTION 3. IC 6-2.5-7-1, AS AMENDED BY P.L.1-2007, SECTION 52, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1. (a) The definitions in this section apply throughout this chapter.
    (b) "Kerosene" has the same meaning as the definition contained in IC 16-44-2-2.
    (c) "Gasoline" has the same meaning as the definition contained in IC 6-6-1.1-103.
    (d) "Special fuel" has the same meaning as the definition contained in IC 6-6-2.5-22.
    (e) "E85" has the meaning set forth in IC 6-6-1.1-103.
    (f) "Unit" means the unit of measure, such as a gallon or a liter, by which gasoline or special fuel is sold.
    (g) "Metered pump" means a stationary pump which is capable of metering the amount of gasoline or special fuel dispensed from it and which is capable of simultaneously calculating and displaying the price of the gasoline or special fuel dispensed.
    (h) "Indiana gasoline tax" means the tax imposed under IC 6-6-1.1.
    (i) "Indiana special fuel tax" means the tax imposed under IC 6-6-2.5.
    (j) "Federal gasoline tax" means the excise tax imposed under Section 4081 of the Internal Revenue Code.
    (k) "Federal special fuel tax" means the excise tax imposed under Section 4041 of the Internal Revenue Code.
    (l) "Price per unit before the addition of state and federal taxes" means an amount which equals the remainder of:
        (1) the total price per unit; minus
        (2) the state gross retail, Indiana gasoline or special fuel, a county supplemental motor fuel tax, and federal gasoline or special fuel taxes which are part of the total price per unit.
    (m) "Total price per unit" means the price per unit at which gasoline or special fuel is actually sold, including the state gross retail, Indiana gasoline or special fuel, a county supplemental motor fuel tax, and federal gasoline or special fuel taxes which are part of the sales price.
    (n) "Distributor" means a person who is the first purchaser of gasoline from a refiner, a terminal operator, or supplier, regardless of the location of the purchase.
    (o) "Prepayment rate" means a rate per gallon of gasoline determined by the department under section 14 of this chapter for use in calculating prepayment amounts of gross retail tax under section 9 of this chapter.
    (p) "Purchase or shipment" means a sale or delivery of gasoline, but does not include:
        (1) an exchange transaction between refiners, terminal operators, or a refiner and terminal operator; or
        (2) a delivery by pipeline, ship, or barge to a refiner or terminal operator.
    (q) "Qualified distributor" means a distributor who:
        (1) is a licensed distributor under IC 6-6-1.1; and
        (2) holds an unrevoked permit issued under section 7 of this chapter.
    (r) "Refiner" means a person who manufactures or produces gasoline by any process involving substantially more than the blending of gasoline.
    (s) "Terminal operator" means a person that:
        (1) stores gasoline in tanks and equipment used in receiving and storing gasoline from interstate or intrastate pipelines pending wholesale bulk reshipment; or
        (2) stores gasoline at a boat terminal transfer that is a dock or tank, or equipment contiguous to a dock or tank, including equipment used in the unloading of gasoline from a ship or barge and used in transferring the gasoline to a tank pending wholesale bulk reshipment.".
SOURCE: Page 162, line 4; (08)MO1001141.162. -->     Page 162, line 4, after "IC 6-6-1.1," insert " IC 6-6-12,".
    Page 162, line 11, after "IC 6-6-2.5," insert " IC 6-6-12,".
    Page 162, line 17, after "excluding" insert " a county supplemental motor fuel tax (IC 6-6-12) and".
    Page 212, between lines 11 and 12, begin a new paragraph and insert:
SOURCE: IC 6-6-1.1-1204; (08)MO1001141.202. -->     "SECTION 202. IC 6-6-1.1-1204 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1204. (a) Except as provided in IC 6-6-12, no city, town, county, township, or other subdivision or municipal corporation of the state may levy or collect:
        (1) an excise tax on or measured by the sale, receipt, distribution, or use of gasoline; or
        (2) an excise, privilege, or occupational tax on the business of manufacturing, selling, or distributing gasoline.
    (b) The provisions of subsection (a) may not be construed as to relieve a distributor or dealer from payment of a state tax or state store license.".
SOURCE: Page 213, line 25; (08)MO1001141.213. -->     Page 213, between lines 25 and 26, begin a new paragraph and insert:
SOURCE: IC 6-6-12; (08)MO1001141.203. -->     "SECTION 203. IC 6-6-12 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]:
    Chapter 12. County Supplemental Motor Fuel Tax
    Sec. 1. The definitions in IC 36-1-2 apply throughout this article.
    Sec. 2. As used in this chapter, "carrier" has the meaning set forth in IC 6-6-4.1-1(a).
    Sec. 3. As used in this chapter, "department" refers to the department of state revenue.
    Sec. 4. As used in this chapter, "motor fuel" means either of the following:
        (1) Gasoline (as defined in IC 6-6-1.1-103).
        (2) Special fuel (as defined in IC 6-6-2.5-22).
    Sec. 5. (a) After January 1 but before August 1 of a year, a county may impose a county supplemental motor fuel tax on motor fuel sold in the county by adopting the ordinances required by this section.
    (b) The executive of the county shall initiate the process as follows:
        (1) In a county containing a consolidated city, the executive shall submit to the legislative body a proposed ordinance imposing a county supplemental motor fuel tax after a public hearing meeting the requirements of subsection (c).
        (2) In a county that does not contain a consolidated city, the executive shall adopt an ordinance imposing a county supplemental motor fuel tax after a public hearing meeting the requirements of subsection (c).
    (c) Notice of the time, date, and place of the public hearing held by the county executive under subsection (b) or the county fiscal

body under subsection (d) must be given in accordance with IC 5-3-1.
    (d) A county supplemental motor fuel tax may not be imposed in a county unless the county fiscal body adopts an ordinance after a public hearing that is identical to:
        (1) the proposed ordinance submitted by the executive in the case of a county containing a consolidated city; or
        (2) the ordinance adopted by the executive in the case of a county that does not contain a consolidated city.
    (e) An ordinance adopted under this section must specify the rate of the county supplemental motor fuel tax in the county and the effective date of the ordinance to provide that the ordinance takes effect:
        (1) at least sixty (60) days after the adoption of the ordinance; and
        (2) on the first day of a month.
    (f) The rate of a county supplemental motor fuel tax imposed under this chapter may not exceed five-tenths of one cent ($0.005) per gallon of motor fuel sold in the county.
    (g) If a fiscal body adopts an ordinance imposing a county supplemental motor fuel tax under this section, the fiscal body shall immediately send a certified copy of the ordinance to the department.
    Sec. 6. (a) If no bonds, leases, obligations, or other evidences of indebtedness that are payable from the county supplemental motor fuel tax are outstanding, the county supplemental motor fuel tax may be repealed as follows:
        (1) An ordinance to repeal the tax is adopted by the fiscal body and approved by the executive in the case of a county that contains a consolidated city or is subject to IC 36-2-3.5.
        (2) Identical ordinances to repeal the tax are adopted by the fiscal body and the executive in the case of a county that does not contain a consolidated city and is not subject to IC 36-2-3.5.
    (b) An ordinance to repeal a county supplemental motor fuel tax takes effect January 1 immediately following the date the repeal was adopted. If a county repeals the ordinance imposing a county supplemental motor fuel tax, the county auditor shall immediately send to the commissioner of the department of state revenue a certified copy of the ordinance repealing the ordinance imposing the tax.
    Sec. 7. Except as provided in section 8 of this chapter, a county supplemental motor fuel tax imposed under this chapter shall be imposed, paid, and collected in the same manner that the state gasoline and special fuel taxes are imposed, paid, and collected under this article. However, the return that is filed for the payment of the tax may be a separate return or may be combined with the

return filed for the payment of the state gasoline tax or state special fuel tax as prescribed by the department.
    Sec. 8. (a) This section applies only to a carrier.
    (b) A county supplemental motor fuel tax imposed under this chapter upon a carrier shall be imposed, paid, and collected in the same manner as the state motor carrier fuel tax is imposed, paid, and collected under IC 6-6-4.1. However, the return that is filed for the payment of the tax may be a separate return or may be combined with the return filed for the payment of the state motor fuel tax as prescribed by the department.
    Sec. 9. (a) This section applies only to a carrier.
    (b) For each quarterly reporting period a carrier is entitled to a credit against the carrier's county supplemental motor fuel tax liability equal to the amount determined in STEP THREE of the following formula.
        STEP ONE: Determine the total amount of the carrier's county supplemental motor fuel tax liability incurred during the quarterly reporting period by purchasing motor fuel in a county imposing a county supplemental motor fuel tax.
        STEP TWO: Multiply the STEP ONE amount by a fraction. The numerator of the fraction is the total number of miles traveled on highways in Indiana by the carrier during the quarterly reporting period, and the denominator of the fraction is the total number of miles traveled within and without Indiana by the carrier during the quarterly reporting period.
        STEP THREE: Determine the difference of:
            (1) the amount determined in STEP ONE; minus
            (2) the amount determined in STEP TWO.
    (c) A carrier may claim the credit allowed by this section on a form prescribed by the department that must be filed with the quarterly report filed by the carrier under IC 6-6-4.1-10.
    Sec. 10. (a) The department shall notify the county auditor of a county that imposes a county supplemental motor fuel tax under this chapter of the amount of the tax paid in the county.
    (b) The amounts received from taxes imposed under this chapter shall be paid monthly by the treasurer of state on warrants issued by the auditor of state to the county treasurer.
    Sec. 11. If a county imposes a county supplemental motor fuel tax under this chapter, the county treasurer shall establish a county supplemental motor fuel tax fund into which all amounts received monthly from the treasurer of state shall be deposited.

     Sec. 12. Before the twentieth day of each month, the county auditor shall allocate the money deposited in the county supplemental motor fuel tax fund during the previous month among the taxing units in the county in the same manner that county adjusted gross income taxes or county option income taxes

(whichever is appropriate) are allocated among the taxing units in the county. If neither the county adjusted gross income tax (IC 6-3.5-1.1) nor the county option income tax (IC 6-3.5-6) are imposed in the county, the money deposited in the county supplemental motor fuel tax fund during the previous month must be allocated among the taxing units in the same manner that county option income taxes would be allocated in the county if the county option income tax were imposed in the county. Money allocated under this section must be distributed to the taxing units before the twenty-fifth day of each month.
     Sec. 13. Revenue derived from the imposition of a county supplemental motor fuel tax under this chapter is outside the tax limits imposed by IC 6-1.1-18.5.
    Sec. 14. A unit may use revenues from the imposition of a county supplemental motor fuel tax for any of the following purposes:
        (1) Paying debt service or lease rentals on:
            (A) bonds;
            (B) leases;
            (C) obligations; or
            (D) any other evidence of indebtedness of the unit;
        incurred to finance a road construction project.
        (2) Paying the costs of any road construction project.
        (3) As operating revenue for the maintenance of the unit's roads.
        (4) Any other legal or corporate purpose of the unit.
    Sec. 15. A county supplemental motor fuel tax imposed under this chapter is a listed tax for purposes of IC 6-8.1-1.
    Sec. 16. The department shall annually estimate the amount of revenue that each county would collect under this chapter if the county adopted a county supplemental motor fuel tax. The department shall annually provide a copy of the estimate to the appropriate county auditor before July 1.
    Sec. 17. A person who knowingly makes a false statement or knowingly presents a fraudulent receipt for the sale of motor fuel for the purpose of:
        (1) obtaining;
        (2) attempting to obtain; or
        (3) assisting any other person to obtain or attempt to obtain;
a credit, refund, or reduction of liability for a county supplemental motor fuel tax imposed under this chapter commits a Class C infraction.
    Sec. 18. A carrier who knowingly violates this chapter, except for a violation covered by section 19 of this chapter, commits a Class C infraction.
    Sec. 19. If a carrier:
        (1) fails to pay a county supplemental motor fuel tax imposed

under this chapter; or
        (2) files a report concerning a county supplemental motor fuel tax after the date established under IC 6-6-4.1 for motor carrier fuel tax reports;
the commissioner may suspend or revoke any annual permit, trip permit, temporary authorization, or repair and maintenance permit issued to the carrier. The commissioner may reinstate a permit or temporary authorization if a carrier files all required returns and reports and pays all outstanding liabilities.
    Sec. 20. A person who receives or collects money as a county supplemental motor fuel tax imposed under this chapter on gasoline on which the person has not paid the tax, and knowingly fails to pay the money to the administrator as required under this chapter, commits a Class D felony.
    Sec. 21. Except as otherwise provided by this chapter, a distributor (as defined in IC 6-6-1.1-103(d)) who:
        (1) recklessly fails to:
            (A) file the returns or statements required under this chapter; and
            (B) pay the taxes as required by this chapter; or
        (2) knowingly fails to keep correct records, books, and accounts required by this chapter with respect to a county supplemental motor fuel tax;
commits a Class B misdemeanor.
    Sec. 22. (a) This section does not apply to a carrier.
    (b) A person who knowingly uses motor fuel on which a county supplemental motor fuel tax:
        (1) has been imposed under this chapter; but
        (2) has not been paid;
commits a Class B misdemeanor.
    Sec. 23. If a person:
        (1) is subject to the taxes imposed under IC 6-6-1.1-201 and this chapter; and
        (2) fails to keep books and records as required by IC 6-8.1-5;
the person is subject to the penalty under IC 6-8.1-10-4(b).
    Sec. 24. (a) The definitions set forth in IC 6-6-2.5 apply to this section.
    (b) A supplier, permissive supplier, importer, or blender who knowingly fails to collect or timely remit a county supplemental motor fuel tax otherwise required to be paid to the department at the time that the state special fuel tax must be paid under IC 6-6-2.5-35 or pursuant to a tax precollection agreement under IC 6-6-2.5-35 is liable for the uncollected tax plus a penalty equal to one hundred percent (100%) of the uncollected tax.
    (c) Collection of a county supplemental motor fuel tax on special fuel arising from an out-of-state transaction does not in itself subject a supplier or permissive supplier to the jurisdiction of

Indiana for any tax liability arising outside of this chapter.
    (d) A person who fails or refuses to pay over to the state a county supplemental motor fuel tax on special fuel at the time required in this chapter or who fraudulently withholds or appropriates or otherwise uses the money or any portion thereof belonging to the state commits a Class D felony.
    Sec. 25. The general assembly covenants with the respective units and the purchasers and owners of bonds, leases, obligations, or any other evidences of indebtedness of a unit payable from a county supplemental motor fuel tax imposed under this chapter that this chapter will not be repealed or amended in any manner that will adversely affect the imposition or collection of a tax imposed under this chapter so long as the principal, interest, or lease rentals due under those bonds, leases, obligations, or other evidences of indebtedness of a unit that are payable from a tax imposed under this chapter remain unpaid.

SOURCE: IC 6-8.1-1-1; (08)MO1001141.204. -->     SECTION 204. IC 6-8.1-1-1, AS AMENDED BY P.L.233-2007, SECTION 23, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1. "Listed taxes" or "taxes" includes only the pari-mutuel taxes (IC 4-31-9-3 through IC 4-31-9-5); the riverboat admissions tax (IC 4-33-12); the riverboat wagering tax (IC 4-33-13); the slot machine wagering tax (IC 4-35-8); the gross income tax (IC 6-2.1) (repealed); the utility receipts and utility services use taxes (IC 6-2.3); the state gross retail and use taxes (IC 6-2.5); the adjusted gross income tax (IC 6-3); the supplemental net income tax (IC 6-3-8) (repealed); the county adjusted gross income tax (IC 6-3.5-1.1); the county option income tax (IC 6-3.5-6); the county economic development income tax (IC 6-3.5-7); the municipal option income tax (IC 6-3.5-8); the auto rental excise tax (IC 6-6-9); the financial institutions tax (IC 6-5.5); the gasoline tax (IC 6-6-1.1); the alternative fuel permit fee (IC 6-6-2.1); the special fuel tax (IC 6-6-2.5); the motor carrier fuel tax (IC 6-6-4.1); a motor fuel tax collected under a reciprocal agreement under IC 6-8.1-3; the motor vehicle excise tax (IC 6-6-5); the commercial vehicle excise tax (IC 6-6-5.5); the hazardous waste disposal tax (IC 6-6-6.6); a county supplemental motor fuel tax (IC 6-6-12); the cigarette tax (IC 6-7-1); the beer excise tax (IC 7.1-4-2); the liquor excise tax (IC 7.1-4-3); the wine excise tax (IC 7.1-4-4); the hard cider excise tax (IC 7.1-4-4.5); the malt excise tax (IC 7.1-4-5); the petroleum severance tax (IC 6-8-1); the various innkeeper's taxes (IC 6-9); the various food and beverage taxes (IC 6-9); the county admissions tax (IC 6-9-13 and IC 6-9-28); the oil inspection fee (IC 16-44-2); the emergency and hazardous chemical inventory form fee (IC 6-6-10); the penalties assessed for oversize vehicles (IC 9-20-3 and IC 9-30); the fees and penalties assessed for overweight vehicles (IC 9-20-4 and IC 9-30); the underground storage tank fee (IC 13-23); the solid waste management

fee (IC 13-20-22); and any other tax or fee that the department is required to collect or administer.".
    Renumber all SECTIONS consecutively.
    (Reference is to HB 1001 as printed January 17, 2008.)

________________________________________

Representative Dodge


MO1001141/DI 92     2008