Opinion Letter

Letter Number:O-2009-010
Tax Type:Kansas Retailers' Sales Tax; Motor Vehicle Fuel Tax
Brief Description:Wholesale diesel and gasoline fuel supplies.
Keywords:
Approval Date:03/23/2009



Body:
Office of Policy & Research


March 23, 2009

XXXX
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XXXX Dear XXXX:

Thank you for your recent letter. You work for XXXXX in Winesburg, Ohio. The company's website contains the following description of its business operations:
Your letter raises two issues about non-payment of sales tax by your customers. While you do not ask about Kansas motor fuel tax, the interrelationship between motor fuel tax and the possibility that sales tax is owed on the sale of motor fuel requires a discussion of your company's sales tax and motor-fuel tax collection duties.

Motor fuel taxes fund highway construction and maintenance in Kansas. K.S.A. 79-3402. Motor fuel tax is viewed as an indirect tax on highway use, since motor fuel is consumed by vehicles that operate on state highways, and the motor fuel tax proceeds pay for the construction and maintenance of those highways. K.S.A. 79-3402. Motor fuel tax is imposed on the use, sale, or delivery of "motor-vehicle fuels" (gasoline & gasohol) or "special fuels" (diesel, including bio-diesel) in Kansas.

Kansas sales tax is imposed on sales of tangible personal property to final users or consumers. Sales tax is not imposed on sales to retailers or distributors for resale. K.S.A. 79-3606(a) is a sales tax provision that exempts, in parts relevant here:
The "excise tax" being referred to in this sales tax exemption is motor fuel tax. This provision means that if motor fuel tax has been paid on motor fuel that is sold to an end user, no sales tax is owed on the sale. (Sales tax does not apply to sales to retailers and wholesalers --- only end users.) The "not subject to refund" provision alludes to the statutory refund procedure that motor fuel consumers must follow to obtain a refund of motor fuel tax paid for fuel the customer uses "off road" or for "non-highway" purposes. "Off road" or "non-highway" use includes the use of tax-paid fuel to power farm equipment used in crop production operations, to power boats, to heat buildings, and so forth. The refunds for off-road or non-highway use are authorized by the Kansas motor fuel tax laws since motor fuel tax is conceptually a tax on highway use.

The legal incidence of the motor fuel tax is on the "distributor of first receipt" rather than on the end user or consumer. Because of this, a customer's nonpayment of the purchase price and motor fuel tax does not relieve a Kansas distributor from reporting and remitting the motor fuel tax to the department. While a Kansas distributor is authorized to pass an amount equal to the motor fuel tax on to its customer by including that amount in it charges to the customer for motor fuel, the distributor is not required to do so. K.S.A. 2007 Supp. 79-3409. The distributor of first receipt remains liable for motor fuel tax regardless of whether the distributor has increased the charge to cover the motor fuel tax or collects payment for the motor fuel and associated tax from the purchaser.

Under K.S.A. 2007 Supp. 79-3408, the point of taxation for motor fuel is the terminal rack, which is at the level in the distribution chain that fuel is transferred from the bulk transfer/terminal system. A "rack" is a mechanism for delivering motor fuel from a refinery, a terminal, or a marine vessel at the supplier lever into a railroad tank car, a transport truck, a tank wagon, or other means of transfer outside of the bulk transfer/ terminal system. The distributor, manufacturer, or importer that delivers fuel from the rack is the "distributor of the first receipt of the motor fuel," and as such is responsible for computing, reporting, and paying tax on the motor fuel being delivered. However, there are several significant exceptions to the motor fuel tax imposition that are found in K.S.A. 2007 Supp. 79-3408(c). This subsection reads:
The underlined language in subsection (5) means that no motor fuel tax is owed by a distributor that would otherwise be a distributor of first use except for the fact that is sells the fuel to "another duly licensed distributor." Whether this provision or any of the others provisions in subsection (c) apply is not determined at the time the motor fuel is delivered from the rack to a purchaser. Instead, the motor fuel tax that a licensed distributor owes to the department is determined based on the different motor fuel reports and returns that are filed with the department by motor fuel manufacturers, importers, distributors, retailer and exporters

All of a distributor's motor fuel purchases and sales, including those to a duly licensed distributor that fall within K.S.A. 79-3408(c), are tracked and reported on different motor fuel reports that are filed with the department by motor fuel manufacturers, importers, distributors, retailer and exporters. Motor fuel Distributors and Importers must file an MF-52, Distributors Tax Return along with its supporting schedules. These schedules are: (1) an MF-52A (Gasoline) and an MF-52A (Special Fuel), Motor Fuel Tax Multiple Schedule of Receipts; and (2) an MF-52B (Gasoline) and an MF-52B (Special Fuel), Motor Fuel Tax Multiple Schedule of Disbursements. Motor fuel retailers are required to file an MF-90, Motor Fuel Retailers' Informational Return, along with its supporting schedules. The supporting schedules for the Retailers' Informational Return include: (1) an MF-90A, Motor Fuels Retailer’s Schedule of Receipts; (2) an MF-90B, Motor Fuel Retailers’ Totalizer Gallonage Report, and ( 3) an MF-90C, Consolidated Retailer Inventory Return.

The Distributors Tax Return contain, among other things, columns for reporting the number of gallons of special fuel and motor vehicle fuel that are: (1) purchased by the distributor; (2) delivered to the United State Government; (3) delivered for use as aviation fuel; (4) dyed diesel fuel; (5) delivered to other licensed distributors, (6) exported, and so forth. Before a Distributors Tax Return can be completed, the distributor must complete a Motor Fuel Tax Multiple Schedule of Receipts for both gasoline and special fuel and a Motor Fuel Tax Multiple Schedule of Disbursements for both gasoline and special fuel.

A separate Schedule of Receipts is required to be filed for motor fuel that was: (1) received tax paid, (2) received from licensed fuel distributors tax unpaid; or (3)delivered directly to customers from other states. Each schedule asks for the name of the distributor that the fuel was acquired from, the distributor's FEIN number, the name and FEIN number of the carrier that hauled the fuel, the manifest number, the places of origin and destination, and other pertinent information.

A separate Schedule of Disbursements is required to be filed that reports gallons of motor fuel: (1) delivered tax collected; (2) delivered to licensed motor fuel distributors tax not collected; (3) exported; (4) delivered to the US government tax exempt; (5) delivered to other tax exempt entities, and so forth. Each schedule contains columns for reporting the buyer's name and federal employer identification number, the name and federal employer identification number of the carrier that makes the delivery, the place of the fuel's origin and destination, the manifest number, and so forth.

Numbers from these schedules are then transferred to the appropriate line on the Distributors Tax Return. The completion of the return determines the amount of motor fuel tax that is owed by the distributor. In almost every instance, the reporting and accounting requirements for motor fuel tax are sufficient to document that a transaction is exempt from retailers' sales tax because motor fuel tax was paid on the fuel, the sale was for resale, the sale was to the United States Government, and so forth.

The documentation provided in these reports means that the only potential sales tax reporting responsibilities that a distributor can have are for the distributor's sales of fuel to end users. This is because: (1) sales tax is levied on retail sales, which are sales to the final user or consumer; and (2) sales tax does not apply to sales of motor fuel that has been subject to motor fuel. All of a distributor's sales to other licensed distributors and retailers are not subject to sales tax because they are sales for resale rather than retail sales. See K.S.A. 79-3602(jj). Sales for resale are adequately documented by the distributor's motor fuel reports that show the sales were made to motor fuel retailers or distributors. Similarly, all of a distributor's sales of tax paid motor fuel are exempt from sales tax under K.S.A. 79-3606(a). Again, sales that are exempt under this sales tax exemption is adequately documented by the distributor's motor fuel reports that show the sale or delivery of tax paid motor fuel. As noted, the sale or delivery of tax paid motor fuel means that sale or delivery is not subject to sales tax.

Whether or not the motor fuel tax is or is not "subject to refund" under K.S.A. 79-3606(a) is determined by the department as part of the statutory procedure for refunding motor fuel tax paid on fuel that is used "off road." As was discussed above, a motor fuel purchaser can apply to the department for a refund of motor fuel tax that was paid on taxed motor fuel used off road. Once the department determines that a refund of motor fuel tax is due, the department becomes responsible for determining whether or not sales or use tax is owed because the customer's off road use is not exempt from sales tax.

This means that a motor fuel distributor may be responsible for collecting sales tax only when it sells dyed diesel fuel to an end user or aviation fuel for aviation use to an end user. A distributor knows that it is making a retail sale of these fuels to a buyer/end user if the buyer/end user cannot provide a distributor's motor fuel license number to the distributor at the time of the buyer/end user's purchase. Whenever a distributor sells these fuels to a buyer/end user that does not have a motor fuel distributor's license, the distributor is required to either: (1) secure a sales tax exemption certificate from the buyer/end user or (2) charge and collect state and local sales tax that is sourced to the location where the fuel is delivered.

Sales tax exemption certificates that a buyer/end users typically give to a distributor for purchases of dyed diesel fuel include agricultural exemption certificates from farmers, project exemption certificates from contractors, consumed-in-production exemption certificate from a quarry, and so forth. Sales tax may also be due when a distributor sells aviation fuel for aviation use to a buyer/end user that has not been issued a motor fuel distributor's license. Sales tax exemption certificates that buyers/end users typically give to a distributor for aviation fuel purchases include interstate common carrier exemption certificates and consumed in production exemption certificates or ag exemption certificates for crop dusters. A distributor should charge and collect sales tax unless it has received one of these sales tax exemption certificate from the buyer/end user that does not have a motor fuel distributors license.

This brings us to your questions. Because I suspect that your questions may be asking about motor fuel rather than sales tax, I will answer your questions as if they are asking about both sales tax and motor fuel tax. The sales tax act was amended recently to change the way in which a business can recover sales tax that is paid to the state and later becomes part of a bad debt held by the retailer. See K.S.A. 2007 Supp. 79-3674. I hope that this letter adequately answers your questions.

Date Composed: 06/16/2009 Date Modified: 06/16/2009