CHAPTER 633

An Act to amend and reenact §§ 58-731, 58-782, 58-734, 58-7385, 58-735.1,
58-785.2, 58-786, 58-737, 58-7389, 58-740, 58-741, 58-742, 58-748,
58-744, 58-746, 58-747, 58-748, 58-749, 58-750, 58-751, 58-752, 58-7538
and 58-755 of the Code of Virginia, and to amend the Code of
Virginia by adding sections numbered 58-739.1, 58-739.2, 58-739.3, 58-
748.1, 58-749.1, 58-749.2, 58-753.1, 58-753 .2 and 58-754.1, the amended
and new sections relating to taxes on combustible gases and fuels as
heavy as or heavier than kerosene used in certain internal combus-
tion engines, so as to provide for a change in the method of collection
of such taxes; and to repeal § 58-745, relating to certain sales of sueh

fuels.
[S 249]
Approved April 4, 1952

Be it enacted by the General Assembly of Virginia:
1. That §§ 58-731, 58-732, 58-734, 58-735, 58-735.1, 58-735.2, 58-736,
58-737, 58-739, 58-740, 58- 7Al, 58- 742, 58-743, 58-744, 58-746, 58-747,
58-748, 58-749, 58-750, 58-751, 58-752, 58-753 and 58- 755 of the Code of
Virginia be amended ‘and reenacted, ‘and that the Code of Virginia be
amended by adding sections numbered 58-739.1, 58-739.2, 58-739.3,
98-748.1, 58-749.1, 58-749.2, 58-753.1, 58-753.2 and 58-754.1, as follows:

§ 58-731. Short title—This chapter shall be known and may be cited
as the “Special Fuels Tax Act.”

§ 58-732. Definitions.—The following words, terms and phrases as
used in this chapter are, for the purposes thereof, hereby defined as
ollows:

- (1) “Commissioner” shal] mean the Commissioner of the. Division
of Motor Vehicles.

(2) “Division” shall mean the Division of Motor Vehicles, acting
directly or through its duly authorized officers and agents.

(3) ‘Motor vehicles” shall mean and include all vehicles, engines,
machines or mechanical contrivances which are propelled by internal
combustion engines or motors upon which or by which any person or
property is or may be transported or drawn upon a public highway.

(4) “Fuels” shall mean and include all combustible gases and liquids
used in an internal combustion engine or motor for the generation of
power to propel motor vehicles on the public highways, except such fuels
as are subject to the tax wmposed by Chapter 18 of the Code of Virginia
1950.

(5) “Highway” shall mean and include every way or place of what-
ever nature open to the use of the public for purposes of vehicular travel
in this State, including the streets and alleys in towns and cities.

(6) ‘‘Person” shall mean and include natural persons and partner-
ships, firms, associations and corporations.

(7) ‘Use’ shall mean and include, in addition to its original meaning,
the receipt of fuel by any person into a motor vehicle or into a receptacle
from which fuel is supplied by any person to his own or other motor
vehicles.

(10) “User-seller” means any person who maintains storage facilities
in excess of one hundred gallons and stores fuel therein, and who dis-
menses such fuel into the fuel tanks of, or attached to motor vehicles and
shall include any such person who so dispenses fuel for consumption in
such motor vehicles owned, leased or operated by him.

(11) “Supplier” means any person who sells or delivers fuel to a
user-seller as herein defined for resale or use; and any person who tm-
ports fuel into the State other than in the usual tank or receptacle con-
nected with the engine of the motor vehicle in the operation of which the
fuel is to be consumed, and uses the same in a motor vehicle owned or
operated by such person.

(12) “Peddler” means any person who neither owns or operates
stationary storage facilities, and who transports fuel from place to place
in any vehicle having thereon any tank or other container of more than
one hundred gallons capacity, and sells or offers to sell fuel and deliver
the same from such vehicle; provided, that any such person who sells fuel
to any user-seller as herein defined shall be deemed a supplier and as such
be subject to all applicable provisions of this chapter.

(13) “Liquid” means any substance which is liquid at temperatures
an excess of 60°F. and a pressure of 14.7 pounds per square inch absolute.

§ 58-734. Requirements of licenses——(a) It shall be unlawful for
any person to * sell or deliver fuel within this State to a user-seller as
herein defined unless such person is the holder of an uncancelled license
as a supplier issued by the Division.

(b) It shall be unlawful for any person to maintain storage facilities
for fuel and dispense fuel therefrom into any fuel tank attached to a
motor vehicle unless such person is the holder of a license as a user-seller
issued by the Division.

(c) It shall be unlawful for any peddler to sell or offer for sale any
fuel unless he is the holder of an uncancelled peddler’s license issued by
the Division.

The Commissioner shall upon request furnish to each licensed supplier
a list showing the name and business address of each licensed user-seller
as of the beginning of each fiscal year, and shall thereafter, during such
year, supplement such list monthly.

§ 58-735. Application for license.—To procure such license every
supplier shall file with the Commissioner an application upon oath in such
form as the Commissioner may prescribe setting forth the name and
address of the * supplier and such other information as the Commissioner
may require.

§ 58-735.1. Surety bond required; exceptions.—A supplier’s license
shall not be issued until the person applying therefor has filed with the
Commissioner a surety bond in the appropriate sum of three times the
average monthly tax due by such supplier, except that the amount shall
never be less than five hundred dollars nor more than twenty thousand
dollars. Every such bond shall have as surety, a duly authorized surety
company, approved by the Bureau of Insurance of the State Corporation
Commission and signed by a resident Virginia agent of the surety, con-
ditioned that the supplier shall faithfully comply with the provisions of
this chapter during the effective period of his license. The Commissioner
may require any licensed supplier to furnish such additional surety bond
as shall be necessary to secure at all times the payment by him to the
Commonwealth of all fuel taxes, penalties, interest, fines, uncollectible
check fees and attorney fees due by him; provided that the Common-
wealth and the political subdivisions thereof shall not be required to file
bonds as guaranty of payment of fuel taxes imposed herein.

§ 58-735.2. Release and discharge of surety; new bond or cancella-
tion of license-—Any surety on a bond furnished by a licensed supplier,
as provided herein, shall be released and discharged from any and all
liability to the Commonwealth accruing on such bond after the expiration
of sixty days from the date upon which the surety shall have lodged,
with the Division, a written request to be released and discharged; but
this provision shall not operate to relieve, release or discharge the surety
from any liability already accrued, or which shall accrue before the ex-
piration of the sixty day period. The Division shall promptly after
receiving such request notify the licensed supplier who furnished the
bond, and unless the supplier shall, on or before the expiration of the sixty
day period, file with the department a new bond with corporate surety,
approved by the Bureau of Insurance of the State Corporation Commis-
sion, the Commissioner shall forthwith cancel the supplier’s license. When-
ever a new bond shall be furnished by the licensed supplier, as aforesaid,
the Commissioner shall cancel and surrender the original bond of the
supplier as soon as he shall be satisfied that all liability under the original
bond has been fully discharged.

§ 58-736. When application may be denied.—In the event that

(1) Any application for a supplier’s license * shall be filed by any
person whose license shall at any time theretofore have been cancelled
for cause by the Commissioner,

(2) The Commissioner shall be of the opinion that such application
is not filed in good faith, or

(3) Such application is filed by some person as a subterfuge for the
real person in interest whose license or registration shall theretofore have
been cancelled for cause by the Commissioner,

Then and in any of such events the Commissioner, after a hearing
of which the applicant shall have been given five days’ notice in writing
and in which the applicant shall have the right to appear in person or by
counsel and present testimony, may refuse to issue a license * to such
person.

§ 58-737. Issue of supplier’s license.—The application in proper
form having been accepted for filing, and the other conditions and require-
ments of this chapter having been complied with, the Commissioner shall
issue to such supplier a license and such license shall remain in full force
and effect, unless cancelled as provided in this chapter.

§ 58-739. License not assignable.—The license so issued by the Com-
missioner shall not be assignable and shall be valid only for the supplier
in whose name issued.

§ 58-739.1. After June thirty, nineteen hundred fifty-two no user-
seller or peddler, as defined in this chapter, shall use, sell or deliver fuel
unless he has secured a license from the Division of Motor Vehicles. Such
license shall be issued upon the furnishing by the applicant of such reason-
able information as shall be prescribed by the Commissioner and upon
the payment of a fee of five dollars.

Each such license shall be issued for the fiscal year beginning July
one and ending June thirty, and shall expire at the end of such fiscal year.

§ 58-739.2. Any license issued under the provisions of § 58-739.1 may
be renewed annually, without the payment of any additional fee; provided
that the Commissioner may refuse to renew any such license if the appli-
cant for renewal has failed, during the preceding fiscal year, to keep the
records and make the reports required by the Commissioner.

§ 58-739.3. Each user-seller or peddler licensed under this chapter
shall keep such records and make such reports to the Division of Motor
Vehicles as shall be prescribed under regulations promulgated by the Com-
missioner. Such records and reports shall be such as are adequate to
show all purchases, sales, deliveries and use of fuel by such seller or
peddler.

§ 58-740. Display of license * .—Supplers’ and user-sellers’ licenses
so issued shall be displayed conspicuously by the * licensee at his prin-
cipal place of business. Each peddler shall display his license on each
motor vehicle * used by him for the sale or delivery of fuel.

§ 58-741. Record of licenses —The Commissioner shall keep and file
all applications with an alphabetical index thereof, together with a record
of all licensed suppliers, user-sellers and peddlers.

§ 58-742. Power of Commissioner to cancel licenses.—If a licensee
shall at any time file a false * report of any data or information required
by this chapter, or shall fail, refuse or neglect to file any * report as re-
quired by this chapter, or to pay the full amount of any tax * required by
this chapter, or if a supplier fail to keep accurate records of quantities of
fuel received, produced, refined, manufactured, compounded, sold or used
in this State, or if a user-seller or peddler fail to maintain accurately any
required records, the Commissioner may forthwith cancel his license *
and notify him in writing of such cancellation by registered mail to his
last known address * appearing on the files of the Commissioner.

The Commissioner may cancel any license * upon the written request
of the licensee.

§ 58-748. Discontinuance as a licensed supplier.wWhenever any
person ceases to be a supplier within the State by reason of the discon-
tinuance, sale or transfer of the business of such supplier, such supplier
shall notify the Commissioner in writing at the time the discontinuance,
sale or transfer takes effect. Such notice shall give the date of discon-
tinuance and, in the event of a sale or transfer of the business, the date
thereof and the name and address of the purchaser or transferee thereof.
All taxes, penalties and interest under this chapter, not yet due and pay-
able under the provisions of § 58-746 shall, notwithstanding such pro-
visions, become due and payable concurrently with such discontinuance,
sale or transfer and any such supplier shall make a report and pay all such
taxes, interest and penalties and surrender to the Commissioner the license
certificate theretofore issued to such supplier by the Commissioner.

Unless the notice above provided for shall have been given to the
Commissioner as above provided, such purchaser or transferee shall be
liable to the State for the amount of all taxes, penalties and interest
under this chapter accrued against any such supplier so selling or trans-
ferring his business on the date of such sale or transfer, but only to the
extent of the value of the property thereby acquired from such supplier.

§ 58-744. Levy of tax and exemptions.—A tax at the rate of six cents
per gallon * is hereby imposed upon all * fuel * sold or delivered by any
supplier to any user-seller for resale or use by such user-seller for con-
sumption in a motor vehicle, or used by any such supplier in any motor
vehicle owned, leased or operated by him, or delivered by such supplier
directly into the fuel supply tank of a motor vehicle, or imported by a user-
seller into this State for resale or use for the propulsion of a motor vehicle.

Except that fuel sold to the United States or any of the governmental
agencies thereof shall not be subject to tax hereunder, when sales are made
in quantities of five hundred gallons or more at any one time for use in
motor vehicles.

§ 58-746. Tax reports; computation and payment of tax.—On or be-
for the last day of each calendar month, each supplier of liquid fuel
shall render to the Commissioner a statement on forms prepared and
furnished by the Commissioner, which shall * show the quantity of fuel
on hand on the first and last days of the preceding calendar month, the
quantity received during the month and the quantity sold to user-sellers;
and each supplier of fuels which are not liquid shall keep such records
and make such reports of inventory as the Commissioner shall by regula-
tion prescribe in order to show accurately the quantity of such fuel used
by such supplier or sold to user-sellers and peddlers. * Each such supplier
shall at the time of rendering such report pay to the Commissioner the
tax or taxes herein levied * during the preceding calendar month. Any
report or payment of tax shall be deemed filed within the meaning of this
chapter if it is sent to the Commissioner of the Division of Motor Vehicles
by United States mail in an envelope bearing a postmark showing that tt
was mailed on or before midnight of the last day on which it could have
been filed with the Commissioner in person.

§ 58-747. When Commissioner may estimate fuel sold, delivered or
used; assessments as evidence.—Whenever any person shall neglect or re-
fuse to make and file any report for any. calendar month as required by
this chapter or shall file an incorrect or fraudulent report, the Commis-
sioner shall determine, from any information obtainable, the number of gal-
lons of fuel with respect to which the person has incurred liability under the
special fuels tax laws of the State. In any action or proceeding for the
collection of the fuel tax or any penalties or interest imposed in connec-
tion therewith, an assessment by the Commissioner of the amount of the
tax due and interest or penalties due to this State shall constitute prima
facie evidence of the claim of the State and the burden of proof shall be
upon the person to show that the assessment was incorrect and contrary
to the law.

§ 58-748. Report of purchases by user-sellers. On or before the
last day of each calendar month, each user-seller * not otherwise licensed
as a supplier shall render to the Commissioner a statement on forms
furnished by the Commissioner, which shall be signed by the user-seller *.
The statement shall show the quantity of fuel on hand at the beginning of
the month, the quantity on hand at the end of the month, the quantity sold
or used and each and every purchase made by the uwser-seller * during the
prior calendar month. Each purchase shall be specifically noted on the
statement and the statement shall show the name and address of the sup-
plier and the quantity and date of each purchase. *

* *

58-748.1. Certain reports not open to inspection.—Reports received
by the Division of Motor Vehicles from Licensees under this chapter
showing amount of fuel received, on hand, sold or delivered by them
shall not be open to public inspection but shall, subject to the provisions
of § 58-756, be for the use of the Division, its officers, employees and
agents in the enforcement of the provisions of this chapter.

§ 58-749. Penalty for failure to report or pay taxes promptly.—
When any supplier shall: (1) Fail to submit its monthly report to the Com-
missioner by the last day of the following month, (2) fail to submit the
data required by § 58-746 in such monthly report, or (3) fail to pay to
the Commissioner the amount of taxes hereby imposed when the same
shall be payable, there shall be automatically added thereto a penalty
equal to ten per centum of the tax, to be paid by such supplier. Thereafter
the tax and penalty shall bear interest at the rate of one per centum per
month until the tax is paid.

§ 58-749.1. Use of metered pumps by user-sellers.—Each user-seller
shall dispense all liquid fuel sold by him to others from metered pumps
which indicate the total amount of fuel measured through such pumps.
Each such pump shall have marked thereon the words “Diesel Fuel”;
or, if the fuel sold is not diesel fuel, such other word or words descriptive

of the type of fuel dispensed through such pump as shall be prescribed
by regulations promulgated by the Commissioner.

§ 58-749.2. Invoices or delivery tickets.—Each sale of liquid fuel by
a user-seller shall be evidenced by an invoice or delivery ticket with the
name and address of the user-seller printed or stamped thereon and show-
ing the name and address of the purchaser, date of purchase, number of
gallons, price per gallon, tax per gallon, and total amount. One copy of
such invoice shall be delivered to the purchaser at the time of sale, and a
copy thereof shall be retained by the user-seller and preserved as other
records are required to be preserved under this chapter.

(b) Not more than one original copy of any invoice for a single sale
of fuel shall be prepared by any person. If an additional copy ts required at
any time, such copy shall be plainly marked “Duplicate”, and the number
of the original ticket or invoice shall be indicated thereon.

§ 58-750. Collection of tax by suit.—If any such supplier shall fail
to pay such tax, penalty and interest within thirty days after the tax
shall be due, the Attorney General or the Commissioner shall bring an
appropriate action for the recovery of such tax, penalty and interest and
judgment shall be rendered for the amount so found to be due together
with costs, provided, however, that if it shall be found as a fact that such
failure to pay was wilful on the part of such supplier, judgment shall be
rendered for double the amount of the tax found to be due, with costs.
All remedies now, or which may hereafter be, given by the laws of this
State for the collection or enforcement of taxes are hereby expressly
given for the collection and enforcement of judgments recovered under
this section and the Commissioner, with the approval of the Attorney
General, may employ an attorney to institute and prosecute proper pro-
ceedings to enforce payment of the taxes, penalty and interest, provided
for by this chapter and to pay a reasonable compensation for the services
oa the attorney out of funds appropriated for the administration of this
chapter.

§ 58-751. Retention of records by licensees.—Each licensee shall
maintain and keep for a period of two years such record or records of
fuel received, produced, manufactured, refined, compounded, sold or used
* by such licensee together with invoices, bills of lading and other per-
tinent records and papers, as may reasonably be required by the Commis-
sion for the * administration of this chapter.

§ 58-752. Inspection of records, ete.—The Commissioner or any
deputy, employee or agent authorized by him may examine, during the
usual business hours of the day, records, books, papers, storage tanks
and any other equipment of any licensee, purchaser, refiner, fuel dealer
or distributor, or common carrier pertaining to the quantity of fuel re-
ceived, produced, manufactured, refined, compounded, used, sold, shipped
or delivered, as the case may be, to verify the truth and accuracy of any
statement, report or return or to ascertain whether * the tax imposed by
this chapter has been paid.

§ 58-753. Refund of taxes erroneously or illegally collected.—In the
event it shall appear to the satisfaction of the Commissioner that any taxes
or penalties imposed by this chapter have been erroneously or illegally
collected from any licensee, the Commissioner shall certify the amount
thereof to the Comptroller, who shall thereupon draw his warrant for such
certified amount on the State Treasurer to such licensee. Such refund
shall be paid by the State Treasurer.

No refunds shall be made under the provisions of this section unless
a written statement therefor sets forth the circumstances by reason of
which such refund is claimed. The claim shall be in such form as the Com-
missioner shall prescribe and shall be sworn to by the claimant. It shall
be filed with the Commissioner within one year from the date of the
payment of the taxes erroneously or illegally collected.

§ 58-753.1. Refund for non-highway use.—Any person who shall pur-
chase fuel and pay the tax thereon and use the same for purposes other
than to propel vehicles operated or intended to be operated on the highway,
shall, upon making application therefor as herein provided, be reimbursed
the amount of such tax paid. Application for refund shall be filed with the
Commissioner within three months from the date of sale, shall show the
purpose for which the fuel was used, and shall be accompanied by the
invoice covering sale of the fuel to such person. Such refunds shall be
paid in the manner provided in § 58-758.

§ 58-753.2. Rules and regulations; forms.—The Commissioner shall
promulgate such reasonable rules and regulations and shall prescribe such
forms as shall be necessary to effectuate and enforce. the purposes of this
chapter.

§ 58-754.1. No vehicle having attached thereto a tank in which liquid
fuel is transported for sale or delivery shall be equipped with any connec-
tion between the tank in which such fuel is transported for sale or delivery
and the motor or fuel tank of the vehicle through which fuel may be sup-
plied for consumption in the motor thereof.

08-755. Acts and omissions declared to be misdemeanors; penalties.
—Any person violating any of the provisions of this chapter, a penalty for
which is not otherwise provided, or who shall:

(1) Fail or refuse to pay the tax imposed by this chapter,

(2) Engage in business in this State as a supplier, user-seller or
peddler without being the holder of an uncancelled license to engage in
such business,

(3) Fail to make any of the reports required by this chapter,

(4) Make any false statement in any application, report or statement
required by this chapter,

(5) Refuse to permit the Commissioner or any deputy to examine
records as provided by this chapter,

(6) Fail to keep proper records of quantities of * fuel received,
produced, refined, manufactured, compounded, sold, used or delivered in
this State as required by this chapter,

(7) Make any false statement on any delivery ticket or invoice as to
the quantity of fuel delivered, sold or used; or make any false statement
in connection with a report, or an application for the refund of any moneys
or taxes provided in this chapter, shall be guilty of a misdemeanor and
upon conviction thereof shall, for the first offense, be fined not more than
two hundred dollars or confined in jail not exceeding six months or both
and, for a second and any subsequent offense, be fined not less than two
hundred dollars nor more than five hundred dollars or confined in jail
not exceeding one year, or both; provided that in addition to the penalty
imposed in conformity to the above, the defendant shall, be required to
pay all taxes and penalties due the State under this chapter and to pay
to the State any other moneys wrongfully withheld or illegally refunded.
2. If any provision of this act, or the application thereof to any person or
circumstance, is held invalid, the remainder of this act and the application
of oe provision to other persons or circumstances shall not be affected
thereby.

3. § 58-745 of the Code of Virginia is repealed.

4. This act shall be in force on and after July one, nineteen hundred

fifty-two; provided that any liability for taxes accrued or any credit for

refunds allowable under the provisions of Chapter 14 of Title 58 of the

pode of Virginia prior to the effective date of this act shall not be affected
v this act.