| (a) Definitions. The following words and terms, when
used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1) Bulk plant--A motor fuel storage and distribution
facility that:
(A) is not an Internal Revenue Service-approved (IRS-approved)
terminal; and
(B) from which motor fuel may be removed at a rack.
(2) Bulk transfer/terminal system--The motor fuel distribution
system consisting of refineries, pipelines, marine vessels, motor
fuel storage facilities, and IRS-approved terminals.
(A) Motor fuel is in the bulk transfer/terminal system
if the motor fuel is in a refinery, a pipeline, a motor fuel storage
facility, a terminal, or a marine vessel transporting motor fuel owned
by a licensed supplier or permissive supplier.
(B) Motor fuel is not in the bulk transfer/terminal
system if the motor fuel is in:
(i) a bulk plant that is not part of a refinery or
terminal;
(ii) the motor fuel supply tank of an engine or a motor
vehicle; or
(iii) a tank car, railcar, trailer, truck, or other
equipment suitable for ground transportation.
(3) Diesel fuel--Kerosene or another liquid, or a combination
of liquids blended together, offered for sale, sold, used, or capable
of use as fuel for the propulsion of a diesel-powered engine.
(A) The term includes products commonly referred to
as kerosene, light cycle oil, #1 diesel fuel, #2 diesel fuel, dyed
or undyed diesel fuel, aviation jet fuel, renewable diesel, biodiesel,
distillate fuel, cutter stock, or heating oil.
(B) The term does not include compressed natural gas,
liquefied natural gas, gasoline, aviation gasoline, or liquefied gas.
(4) Distributor--A person who makes sales of motor
fuel at wholesale. A distributor's activities may also include sales
of motor fuel at retail.
(5) Diversion number--The number assigned by the comptroller,
or by a person to whom the comptroller delegates or appoints the authority
to assign the number, that relates to a single cargo tank delivery
of motor fuel that is diverted from the original destination state
printed on the shipping document.
(6) Export--To obtain motor fuel in this state for
sale or use in another state, territory, or foreign country.
(7) Exporter--A person who exports motor fuel from
this state. The seller is the exporter of motor fuel delivered out
of this state by or for the seller, and the purchaser is the exporter
of motor fuel delivered out of this state by or for the purchaser.
(8) Gasoline--Any liquid or combination of liquids
blended together, offered for sale, sold, used, or capable of use
as fuel for a gasoline-powered engine.
(A) The term includes gasohol, aviation gasoline, and
blending agents.
(B) The term does not include compressed natural gas,
liquefied natural gas, racing gasoline, diesel fuel, aviation jet
fuel, or liquefied gas.
(9) Import--To bring motor fuel into this state by
motor vehicle, marine vessel, pipeline, or any other means. The term
does not include bringing motor fuel into this state in the motor
fuel supply tank of a motor vehicle if the motor is used to power
that motor vehicle.
(10) Import verification number--The number assigned
by the comptroller, or by a person to whom the comptroller delegates
or appoints the authority to assign the number, that relates to a
single cargo tank delivery into this state from another state after
a request for an assigned number by an importer or by the motor fuel
transporter carrying taxable motor fuel into this state for the account
of an importer.
(11) Importer--A person that imports motor fuel into
this state. The seller is the importer for motor fuel delivered into
this state from outside of this state by or for the seller, and the
purchaser is the importer for motor fuel delivered into this state
from outside of this state by or for the purchaser.
(12) Marine vessel--Includes a marine barge.
(13) Motor fuel--Gasoline, diesel fuel, gasoline blended
fuel, compressed natural gas, liquefied natural gas, and other products
that are offered for sale, sold, used, or capable of use as fuel for
a gasoline-powered engine or a diesel-powered engine.
(14) Motor fuel storage facility-- A storage facility
supplied by pipeline or marine vessel that does not have a rack for
removal of motor fuel by truck, railcar, or any other means of conveyance
that is outside the bulk transfer/terminal system.
(15) Permissive supplier--A person who elects, but
is not required, to have a supplier's license and who is registered
under Internal Revenue Code, §4101, for transactions in motor
fuel in the bulk transfer/terminal system and is a position holder
in motor fuel located only in another state or a person who receives
motor fuel only in another state under a two-party exchange.
(16) Position holder--The person who holds the inventory
position in motor fuel in a terminal, as reflected on the records
of the terminal operator. A person holds the inventory position in
motor fuel when that person has a contract with the terminal operator
for the use of storage facilities and terminaling services for motor
fuel at the terminal. The term includes a terminal operator who owns
motor fuel in the terminal.
(17) Rack--A mechanism for delivering motor fuel from
a refinery, terminal, marine vessel, or bulk plant into a transport
vehicle, railroad tank car, or other means of transfer that is outside
the bulk transfer/terminal system.
(18) Sale--A transfer of title, exchange, or barter
of motor fuel, other than the transfer of possession of motor fuel
on consignment.
(19) Shipping document--A delivery document issued
in conjunction with the sale, transfer, or transport of motor fuel.
A shipping document issued by a terminal operator shall be machine
printed. All other shipping documents shall be typed or handwritten
on a preprinted form or machine printed.
(20) Supplier--A person subject to the general taxing
jurisdiction of this state who:
(A) is registered under Internal Revenue Code, §4101,
for transactions in motor fuel in the bulk transfer/terminal system;
and
(i) is a position holder in motor fuel in a terminal
or refinery in this state and may concurrently be a position holder
in motor fuel in another state;
(ii) owns motor fuel in a marine vessel in this state;
or
(iii) receives motor fuel in this state under a two-party
exchange; and
(B) may also be a terminal operator, provided that
a terminal operator is not considered to also be a "supplier" based
solely on the fact that the terminal operator handles motor fuel consigned
to it within a terminal.
(21) Terminal--An IRS-approved motor fuel storage and
distribution facility to which a terminal control number has been
assigned, to which motor fuel is supplied by pipeline or marine vessel,
and from which motor fuel may be removed at a rack.
(b) Imports.
(1) Gasoline or diesel fuel imported into Texas by
or for a seller constitutes an import by that seller. Gasoline or
diesel fuel imported into Texas by or for a purchaser constitutes
an import by that purchaser.
(2) An importer must obtain from the comptroller an
import verification number for each load of gasoline or diesel fuel
imported into Texas by truck or railroad tank car. An import verification
number must be obtained within 72 hours before or after the gasoline
or diesel fuel enters Texas. The importer must write the import verification
number on the shipping document issued for that fuel.
(3) An importer must possess a shipping document created
by the terminal or bulk plant where the gasoline or diesel fuel was
loaded. See §3.439 of this title (relating to Motor Fuel Transportation
Documents) for gasoline or diesel fuel imported by any means into
Texas.
(c) Exports.
(1) A licensed supplier, permissive supplier, or distributor
makes an export sale when it sells gasoline or diesel fuel in Texas
to a licensed exporter, importer, distributor, supplier, or permissive
supplier who then sends or transports the gasoline or diesel fuel
outside the state. The bill of lading or shipping document must list
the out of state destination.
(2) A licensed supplier, permissive supplier, or distributor
who makes an export sale will not be liable for tax on gasoline or
diesel fuel that the purchaser diverts provided that the seller issued
a bill of lading or shipping document that shows that the gasoline
or diesel fuel is to be delivered to a destination outside Texas.
(3) The comptroller may request proof of export from
the exporter to verify that the gasoline or diesel fuel was exported
from Texas. This proof may consist of:
(A) proof of export that a U.S. customs office has
certified, if the gasoline or diesel fuel was exported from this state
to a foreign country;
(B) proof of export that a port of entry of the state
of importation has certified, if ports of entry are maintained by
that state;
(C) proof from the tax officials of the state into
which the gasoline or diesel fuel was imported, which shows that the
exporter has accounted for the gasoline or diesel fuel on the state's
tax report; or
(D) other proof that the gasoline or diesel fuel has
been reported to the state into which the gasoline or diesel fuel
was imported.
(d) Diversion Number. An importer or exporter who diverts
the delivery of a load of gasoline or diesel fuel being transported
by truck or railroad tank car from the destination state or country
that is preprinted on the shipping document that has been issued for
that fuel to another state or country must obtain a diversion number
from the comptroller. A diversion number must be obtained within 72
hours before or after the diversion. The importer, exporter, or common
or contract carrier must write the diversion number on the shipping
document issued for that fuel.
(e) Reporting subsequent sales in this state of tax-free
gasoline or diesel fuel purchased for export.
(1) A person who purchases or removes gasoline or diesel
fuel tax-free for export to any other state or foreign country and,
before export, sells the gasoline or diesel fuel in this state tax-free
to a licensed supplier, permissive supplier, distributor, importer,
or exporter shall report that transaction as required by this subsection.
(2) If the gasoline or diesel fuel is subsequently
sold one or more times in this state before export and tax-free to
a licensed supplier, permissive supplier, distributor, importer, or
exporter, each seller shall report the transaction to the comptroller
as required by this section.
(3) Each person who makes a sale described by paragraph
(1) or (2) of this subsection must provide to the comptroller:
(A) the bill of lading number issued at the terminal;
(B) the terminal control number;
(C) the date the gasoline or diesel fuel was removed
from the terminal;
(D) the number of gallons invoiced;
(E) date of sale; and
(F) any other information required by the comptroller.
(4) The sales invoice for each transaction described
by paragraph (1) or (2) of this subsection must include:
(A) the name of the seller and purchaser; and
(B) the original bill of lading number.
(5) A person who is required to report a subsequent
sale in this state of tax-free gasoline or diesel fuel purchased for
export shall report the transaction with the required monthly motor
fuels return as required under Tax Code, §162.114 (Returns and
Payments) or §162.215 (Returns and Payments).
(f) Penalties.
(1) A person who fails to report a subsequent sale
in this state of tax-free gasoline or diesel fuel purchased for export
shall pay a penalty of $200 for each sale that was not reported on
the original return, unless the person files an amended report that
includes the sale not later than the 180th day after the due date
of the original return.
(2) Failure to pay tax due on a subsequent sale of
tax-free gasoline and diesel fuel purchased for export. A licensed
supplier, permissive supplier, distributor, importer, or exporter
who redirects a delivery of gasoline or diesel fuel to a location
in this state prior to export and fails to pay the tax when due, shall
pay a penalty equal to the greater of $2,000 or five times the amount
of tax due.
(3) The penalties addressed in this subsection are
in addition to any other penalty authorized under Tax Code, Chapter
162 (Motor Fuel Taxes).
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