W. Va. Code R. § 110-14-11

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 110-14-11 - Refund of Tax Because of Certain Nonhighway Uses; Statute of Limitations and Effective Date

11.1. The tax imposed by W. Va. Code '11-14-1 et seq. shall be refunded to any person who shall be in quantities of twenty-five (25) gallons or more, at any one time, tax-paid gasoline or special fuel, when consumed for the following purposes:

11.1.1. As a special fuel for internal combustion engines not operated upon highways of this State; or

11.1.2. Gasoline consumed to operate tractors and gas engines or threshing machines for agricultural purposes, when such operation is not, in whole or in part, upon the highways of this State; or

11.1.2.1. For purposes of these regulations, agricultural purposes shall not include such things as landscaping, lawn mowing or horticultural activities (e.g., growing flowers and ornamental plants).

11.1.3. Gasoline used by any railway company subject to regulation by the Public Service Commission of West Virginia, for any purpose other than upon the highways of this State; or

11.1.4. Gasoline consumed in the business of manufacturing or producing natural resources or in mining or drilling therefor, or in the transportation of natural resources solely by means of unlicensed vehicles or vehicles licensed under the motor vehicle laws of this State, either as a motor fuel or for any other purpose and which gasoline is not in any part used upon the highways of this State; or

11.1.5. Gasoline consumed in motorboats or other watercraft operated upon the navigable waters of this State; or

11.1.6. Gasoline or special fuel used to power a power take-off unit on a motor vehicle. When a motor vehicle with auxiliary equipment uses fuel and there is no auxiliary motor for such equipment or separate tank for such a motor, the person claiming the refund may present to the Tax Commissioner a statement of his claim and shall be allowed a refund for fuel used in operating a power take-off unit on a cement mixer truck or garbage truck equal to twenty-five percent (25%) of the tax imposed by W. Va. Code '11-14-1 et seq. paid on all fuel used in such a truck.

11.2. Such tax shall be refunded upon presentation to the Commissioner of an affidavit accompanied by the original or top copy sales slips or invoices, or certified copies thereof, from the distributor or producer or retail dealer, showing such purchases, together with evidence of payment thereof, which affidavit shall set forth the total amount of such gasoline or special fuel purchased and consumed by such user, other than upon any highways of this State, and how used; and the Tax Commissioner upon the receipt of such affidavit and such paid sales slips or invoices shall cause to be refunded such tax paid on gasoline or special fuel purchased and consumed as aforesaid.

11.2.1. Photocopies of original or top copy sales slips or invoices of special fuels may be substituted for original or top copies.

11.3. The right to receive any refund under the provisions of this Section shall not be assignable and any assignment thereof shall be void and of no effect, nor shall any payment be made to any person other than the original person entitled thereto using gasoline or special fuel as hereinbefore in this Section 11 set forth. The Tax Commissioner shall cause a refund to be made under the authority of this Section only when the claim for such refund is filed with the Tax Commissioner, upon forms prescribed by the Tax Commissioner, within six (6) months from the month of purchase or delivery of the gasoline or special fuel, except that any application for refund made under authority of Section 11.1.2 above shall be filed within twelve (12) months from the month of purchase or delivery of such gasoline or special fuel. Any claim for a refund not timely filed shall not be construed to be or constitute a moral obligation of the State of West Virginia for payment. Such claim for refund shall also be subject to the provisions of W. Va. Code '11-10-14.

11.3.1. To be entitled to claim a refund, the person (as defined in Section 2 of these regulations) purchasing and invoiced for the gasoline and/or special fuels must also be the consumer of the gasoline and/or special fuels in the person's own or leased equipment.

11.3.1.1. If gasoline and/or special fuels are purchased by one "person" and used by another "person", neither person is entitled to claim or receive a refund under this Section.

11.3.2. Inventories are depleted by using the accounting method, FIFO (first in - first out). The first fuel purchased is presumed to be the first fuel consumed. Therefore, consumption will first be used to reduce inventory prior to current purchases. Inventories are determined for timely filing by the date(s) of the invoice(s) making up the inventory.

11.3.3. Special fuels consumed in equipment used both on and off-highway may be apportioned for refund purposes based on the ratio of miles on-highway to miles off-highway. Records must be kept to verify such fuel consumption and mileage.

11.4. Effective date. -- The provisions of W. Va. Code '11-14-11 shall apply to all gasoline and special fuels purchased or delivered on or after the first day of July, 1986, and the provisions of that Section in effect prior to the said first day of July, shall apply to gasoline and special fuels purchased or delivered prior to July, 1986.

W. Va. Code R. § 110-14-11