49-1031

49-1031. Imposition of tax

(Conditionally Rpld.)

A. From and after July 1, 1990, there is imposed and the director shall collect an
excise tax on the operation of underground storage tanks regulated under this chapter
measured by the quantity of regulated substances placed in a tank in any calendar
year. The tax is levied at the rate of one cent per gallon of regulated substance. On
or before December 15 each year the director shall recommend to the legislature any
revision to the tax rate necessary to maintain the assurance account of the underground
storage tank revolving fund at the level prescribed by section 49-1051.

B. For proper administration of this article, and to prevent the evasion of the tax
imposed by this article, it shall be presumed until the contrary is established by
competent proof under rules and procedures adopted by the director that all regulated
substances which are motor vehicle fuel as defined in section 28-101, aviation fuel as
defined in section 28-101 and diesel as defined in section 28-6001, subsection B and
which are refined, manufactured, produced, compounded or blended in this state, or
imported into this state, will be placed in an underground storage tank from which the
fuel is dispensed to users who consume the fuel and do not further distribute it. Under
this presumption, the owner and operator of an underground storage tank from which motor
vehicle fuel, aviation fuel or diesel is dispensed and from which no further bulk
distribution will be made, shall be considered to have paid the tax collected under title
28, chapter 16, article 6.

C. The tax imposed by this article does not apply to underground storage tanks
operated by the United States or this state or agencies of the United States or this
state or to any of the following substances placed in underground storage tanks:

1. Naphtha-type jet fuel or kerosene-type jet fuel.

2. Regulated substances as defined in section 49-1001, paragraph 16, subdivision
(b), unless such regulated substances were placed in an underground storage tank prior to
July 1, 1997, and the owner or operator of the underground storage tank has paid prior to
July 1, 1997 all taxes imposed by this article applicable to such regulated
substances. If the owner or operator has paid those taxes, the owner or operator may
elect to continue to pay the tax imposed by this article regarding such regulated
substances.

D. The owner and operator of an underground storage tank regulated under this
chapter are jointly and severally liable for the tax, but the owner and operator may
agree between themselves and file a notarized affidavit with the director designating
either the owner or operator as primarily responsible for the tax under this article.

E. Any person who purchases motor vehicle fuel as defined in section 28-101,
aviation fuel as defined in section 28-101, or diesel as defined in section 28-6001,
subsection B for which the tax imposed by this section has been paid and which fuel has
been placed in a tank which is not subject to the underground storage tank tax imposed by
this section and from which no further bulk distribution of the fuel will be made, may
claim a refund of the tax levied. Refunds shall be submitted on forms prescribed by the
director and shall be supported by substantiation for the amount of the tax paid.

F. Any person eligible to claim a refund of the tax imposed by this section,
including an assignee of a refund claim, may assign such claim to the person from whom
the fuel was purchased, and the assignee of the claim may claim the refund allowed under
subsection E of this section provided that the assignor of the claim certifies in writing
to the assignee, on forms prescribed by the director, that the assignor relinquishes all
interest in the refund and shall not also claim a refund from the director.

G. If a refund claim is assigned to a person who is required to make payments under
title 28, chapter 16, article 6, the refund shall be taken into account in the manner
provided in section 28-6005.

H. The director shall adopt temporary and permanent rules for administering the tax
imposed by this article and specifying the forms of the return and of the certification
provided for in sections 28-6003 and 28-6004. The temporary and permanent rules shall
prescribe the forms for and manner in which refunds may be claimed and refund claims
assigned pursuant to subsection F of this section, shall specify the circumstances in
which fuel may be excluded from the quantity of fuel used to measure the tax pursuant to
title 28, chapter 16, article 6, and shall prescribe the forms for and manner which the
certification provided in title 28, chapter 16, article 6 shall be made.

I. Title 41, chapter 6 shall not apply to the temporary rules adopted pursuant to
this section. The temporary rules shall be filed with the secretary of state and shall
be effective for a period of one hundred eighty days from the date of filing with the
secretary of state. The temporary rules may be renewed twice in the same manner as they
were adopted, may be amended at the time or times they are renewed, and shall be
effective for a period of one hundred eighty days from the date the renewed temporary
rules are filed with the secretary of state.

J. The permanent rules adopted pursuant to this section shall be adopted as
provided in title 41, chapter 6.