(1)

(a) An excise or license tax of 2 cents per gallon is imposed upon the first sale or first removal from storage, after importation into this state, of motor fuel upon which such tax has not been paid or the payment thereof has not been lawfully assumed by some person handling the same in this state. This tax, which is the tax as levied by s. 16, Art. IX of the Constitution of 1885, as amended, and continued by s. 9(c), Art. XII of the 1968 Constitution, as amended, and which is therein referred to as the "second gas tax," is hereby designated the "constitutional gas tax." Revenues from this levy of tax become state funds at the time of collection by the refiner, importer, or wholesaler, who shall act as agent for the state in the collection of such tax whether he or she is the ultimate seller or not. For purposes of this subsection, the term "first sale" or "first removal" shall be the net amount of motor fuel pumped from the loading rack or first storage. However, if motor fuel taxes are no longer imposed pursuant to ss. 336.025 and 336.026, for purposes of this subsection, the term "first sale" or the term "first removal" shall be the gross amount of motor fuel pumped from the loading rack or first storage. The term "first sale" does not include exchanges or loans, gallon-for-gallon, of motor fuel between licensed refiners before the fuel has been sold or removed through the loading rack or transfers between terminal facilities owned by the same taxpayer. The tax on motor fuel first imported into this state by a licensed refiner storing such fuel in a terminal facility shall be imposed when the product is first removed through the loading rack. The tax shall be remitted by the licensed refiner who owned the motor fuel immediately prior to removal of such fuel from storage.

(b) If any licensee owns or operates retail stations or has fuel on consignment at retail stations and has sold more fuel than was purchased tax-paid when the fuel was removed from the rack or than was reported to the state when first purchased or removed from storage tax-free, the licensee must report the additional gallons sold and pay the additional tax, due for the month, on his or her local option gasoline tax return or a return designated by the department.

(2)

(a) The sale of motor fuel for export from the state by a refiner or importer is exempt from the taxes imposed by this part when exempted by any provision of the Constitution of the United States or of the State of Florida. The sale of motor fuel for export from the state which is not exempted from the taxes imposed by this part either by the Constitution of the United States or of the State of Florida shall also be exempt, but only if both the seller and the exporter of the motor fuel are duly licensed as a refiner or importer.

(b) 1. The sale of motor fuel for export from this state by a wholesaler or jobber is exempt from the taxes imposed by this part when exempted by any provision of the Constitution of the United States or of the State of Florida. The sale of motor fuel for export from the state which is not exempted from the taxes imposed by this part either by the Constitution of the United States or of the State of Florida shall also be exempt, but only if the purchaser of the motor fuel is licensed as a refiner or importer. 2. A refiner, importer, wholesaler, or jobber may be entitled to a refund of taxes paid on gallons of motor fuel exported by filing a refund request monthly. A refiner, importer, or wholesaler may, instead of refund, take credit for taxes paid on gallons exported on his or her monthly returns.

(c) A wholesaler, refiner, or importer may export gallons of motor fuel to his or her own location tax exempt if the licensee maintains complete and adequate shipping documentation that the motor fuel was removed from the state. Adequate shipping documentation shall include bills of lading and delivery tickets provided by the seller or by a common carrier hauling the fuel or by complete shipping logs provided by the purchaser along with receiving records from the location outside of the state.

(d) Violation of any provision of this section may subject the licensee to both revocation of license and liability for taxes on all fuel claimed as exported from the state.

(3) Motor fuel in the fuel tanks in any motor vehicle entering this state used to propel such motor vehicle shall be exempt from the taxes imposed by this part. "Fuel tanks" shall mean the reservoir or receptacle attached to the motor vehicle by the manufacturer as the container for fuel used to propel the vehicle. History: s. 1, ch. 15659, 1931; CGL 1936 Supp. 1167(16); s. 1, ch. 18298, 1937; CGL 1940 Supp. 1167(29a); s. 1, ch. 20303, 1941; s. 2, ch. 57-162; ss. 23, 35, ch. 69-106; s. 18, ch. 69-216; s. 1, ch. 70-342; s. 1, ch. 70-995; s. 3, ch. 75-286; s. 97, ch. 81-259; s. 11, ch. 83-3; s. 102, ch. 85-342; s. 38, ch. 86-152; s. 56, ch. 87-99; s. 3, ch. 91-82; s. 3, ch. 92-184; s. 5, ch. 95-146; s. 1075, ch. 95-147; s. 40, ch. 95-417. [Footnote 1] Note. A. Section 40, ch. 95-417, amended s. 206.41, effective July 1, 1996, to read: 206.41 State taxes imposed on motor fuel. (1) The following taxes are imposed on motor fuel under the circumstances described in subsection (6): (a) An excise or license tax of 2 cents per net gallon, which is the tax as levied by s. 16, Art. IX of the Constitution of 1885, as amended, and continued by s. 9(c), Art. XII of the 1968 Constitution, as amended, which is therein referred to as the "second gas tax," and which is hereby designated the "constitutional fuel tax." (b) An additional tax of 1 cent per net gallon, which is designated as the "county fuel tax" and which shall be used for the purposes described in s. 206.60. (c) An additional tax of 1 cent per net gallon, which is designated as the "municipal fuel tax" and which shall be used for the purposes described in s. 206.605. (d) An additional tax of 1 cent per net gallon may be imposed by each county on motor fuel, which shall be designated as the "ninth-cent fuel tax." This tax shall be levied and used as provided in s. 336.021. (e) An additional tax of between 1 cent and 11 cents per net gallon may be imposed on motor fuel by each county, which shall be designated as the "local option fuel tax." This tax shall be levied and used as provided in s. 336.025. (f)1. An additional tax designated as the State Comprehensive Enhanced Transportation System Tax is imposed on each net gallon of motor fuel in each county. This tax shall be levied and used as provided in s. 206.608. 2. The rate of the tax in each county shall be equal to two-thirds of the lesser of the sum of the taxes imposed on motor fuel pursuant to paragraphs (d) and (e) in such county or 6 cents, rounded to the nearest tenth of a cent. 3. Beginning January 1, 1992, and on January 1 of each year thereafter, the tax rate provided in subparagraph 2. shall be adjusted by the percentage change in the average of the Consumer Price Index issued by the United States Department of Labor for the most recent 12-month period ending September 30, compared to the base year average, which is the average for the 12-month period ending September 30, 1990, and rounded to the nearest tenth of a cent. 4. The department shall notify each terminal supplier, position holder, wholesaler, and importer of the tax rate applicable under this paragraph for the 12-month period beginning January 1. (g)1. An additional tax is imposed on each net gallon of motor fuel, which tax is on the privilege of selling motor fuel and which is designated the "fuel sales tax," at a rate determined pursuant to this paragraph. Before January 1 of 1997, and of each year thereafter, the department shall determine the tax rate applicable to the sale of fuel for the forthcoming 12-month period beginning January 1, rounded to the nearest tenth of a cent, by adjusting the initially established tax rate of 6.9 cents per gallon by the percentage change in the average of the Consumer Price Index issued by the United States Department of Labor for the most recent 12-month period ending September 30, compared to the base year average, which is the average for the 12-month period ending September 30, 1989. However, the tax rate shall not be lower than 6.9 cents per gallon. 2. The department is authorized to adopt rules and adopt such forms as may be necessary for the administration of this paragraph. 3. The department shall notify each terminal supplier, position holder, wholesaler, and importer of the tax rate applicable under this paragraph for the 12-month period beginning January 1. (2) Revenues from these taxes become state funds at the time of collection by the terminal supplier, importer, or wholesaler, who shall act as agent for the state in the collection of such taxes whether he or she is the ultimate seller or not. For purposes of this chapter, the term "first sale" or "first removal" shall be the net amount of motor fuel pumped from the loading rack or first storage. The term "first sale" does not include exchanges or loans, gallon-for-gallon, of motor fuel between licensed terminal suppliers before the fuel has been sold or removed through the loading rack or transfers between terminal facilities owned by the same taxpayer. The tax on motor fuel first imported into this state by a licensed terminal supplier storing such fuel in a terminal facility shall be imposed when the product is first removed through the loading rack. The tax shall be remitted by the licensed terminal supplier who owned the motor fuel immediately prior to removal of such fuel from storage. (3) Motor fuel in the fuel tanks in any motor vehicle entering this state used to propel such motor vehicle shall be exempt from the taxes imposed by this part. "Fuel tanks" shall mean the reservoir or receptacle attached to the motor vehicle by the manufacturer as the container for fuel used to propel the vehicle. (4)(a) Any person who uses motor fuel on which the taxes imposed by paragraph (1)(e), paragraph (1)(f), or paragraph (1)(g) have been paid for any system of mass public transportation authorized to operate within any city, town, municipality, county, or transit authority region in this state, as distinguished from any over-the-road or charter system of public transportation, is entitled to a refund of such taxes. However, such transit system shall be entitled to take a credit on the monthly diesel fuel tax return not to exceed the tax imposed under said paragraphs on those gallons which would otherwise be eligible for refund, when such transit system is licensed as a mass transit system. A public transportation system or transit system as defined in this paragraph may operate outside its limits when such operation is found necessary to adequately and efficiently provide mass public transportation services for the city, town, or municipality involved. A transit system as defined in this paragraph includes demand service that is an integral part of a city, town, municipality, county, or transit or transportation authority system but does not include independent taxicab or limousine operations. The terms "city," "county," and "authority" as used in this paragraph include any city, town, municipality, county, or transit or transportation authority organized in this state by virtue of any general or special law enacted by the Legislature. (b)1. Any person who uses any motor fuel for agricultural, aquacultural, or commercial fishing purposes on which fuel the tax imposed by paragraph (1)(e), paragraph (1)(f), or paragraph (1)(g) has been paid is entitled to a refund of such tax. 2. For the purposes of this paragraph, "agricultural and aquacultural purposes" means motor fuel used in any tractor, vehicle, or other farm equipment which is used exclusively on a farm or for processing farm products on the farm, and no part of which fuel is used in any vehicle or equipment driven or operated upon the public highways of this state. This restriction does not apply to the movement of a farm vehicle or farm equipment between farms. The transporting of bees by water and the operating of equipment used in the apiary of a beekeeper shall be also deemed an agricultural purpose. 3. For the purposes of this paragraph, "commercial fishing and aquacultural purposes" means motor fuel used in the operation of boats, vessels, or equipment used exclusively for the taking of fish, crayfish, oysters, shrimp, or sponges from salt or fresh waters under the jurisdiction of the state for resale to the public, and no part of which fuel is used in any vehicle or equipment driven or operated upon the highways of this state; however, the term may in no way be construed to include fuel used for sport or pleasure fishing. (c) The portion of the tax imposed by paragraph (1)(g) which results from the collection of such taxes paid by a municipality or county on motor fuel or diesel fuel for use in a motor vehicle operated by it shall be returned to the governing body of such municipality or county for the construction, reconstruction, and maintenance of roads and streets within the municipality or county. A municipality or county, when licensed as a local government user, shall be entitled to take a credit on the monthly diesel fuel tax return not to exceed the tax imposed under paragraphs (1)(b) and (g) on those gallons which would otherwise be eligible for refund. (d)1. The portion of the tax imposed by paragraph (1)(g) which results from the collection of such tax paid by a school district or a private contractor operating school buses for a school district or by a nonpublic school on motor fuel or diesel fuel for use in a motor vehicle operated by such district, private contractor, or nonpublic school shall be returned to the governing body of such school district or to such nonpublic school. A school district, when licensed as a local government user, shall be entitled to take a credit on the monthly return not to exceed the tax imposed under paragraphs (1)(b) and (g) on those gallons which would otherwise be eligible for refund. 2. Funds returned to school districts shall be used to fund construction, reconstruction, and maintenance of roads and streets within the school district required as a result of the construction of new schools or the renovation of existing schools. The school board shall select the projects to be funded; however, the first priority shall be given to projects required as the result of the construction of new schools, unless a waiver is granted by the affected county or municipal government. Funds returned to nonpublic schools shall be used for transportation-related purposes. (5)(a)1. This subsection applies to administration of the refunds provided for by subsection (4). To procure a permit, a person must file with the department an application, on forms furnished by the department, stating that he or she is entitled to a refund according to the provisions of subsection (4) and that he or she intends to file an application for refund for a calendar quarter during the current calendar year, and must furnish the department such other information as the department requests. 2. No person may in any event be allowed a refund unless he or she has filed the application provided for in subparagraph 1. with the department. A permit shall be effective for the year issued by the department and shall be continuous from year to year so long as the permitholder files refund claims from year to year. In the event the permitholder fails to file a claim for any year, he or she must apply for a new permit. 3. If an applicant for a refund permit has violated any provision of this subsection or any regulation pursuant hereto; or has been convicted of bribery, theft, or false swearing within the period of 5 years preceding the application; or if the department has evidence of the financial irresponsibility of the applicant, the department may require the applicant to execute a corporate surety bond of $1,000 to be approved by the department, conditioned upon the payment of all taxes, penalties, and fines for which such applicant may become liable. (b)1. When motor fuel or diesel fuel is sold to a person who claims to be entitled to a refund under subsection (4), the seller of such motor fuel or diesel fuel shall make out a sales invoice, which shall contain the following information: a. The name, post-office address, and residence address of the purchaser. b. The number of gallons purchased. c. The date on which the purchase was made. d. The price paid for the motor fuel or diesel fuel. e. The name and place of business of the seller of the motor fuel or diesel fuel. f. The license number, or other identification number, of the motor vehicle or boat of the purchaser. 2. The sales invoice shall be retained by the purchaser for attachment to his or her application for a refund, as a part thereof. No refund will be allowed unless the seller has executed such an invoice and unless proof of payment of the taxes for which the refund is claimed is attached. The department may refuse to grant a refund if the invoice is incomplete and fails to contain the full information required in this paragraph. 3. No person may execute a sales invoice, as described in subparagraph 1., except a terminal supplier, importer, exporter, or wholesaler, or a duly authorized agent thereof. No refund invoice may be executed for a purchase from a retail service station. 4. Notwithstanding provisions of this paragraph to the contrary, the department has authority to designate certain retail service stations as agents of terminal suppliers, importers, exporters, or wholesalers when no terminal suppliers, importers, exporters, or wholesalers are available. 5. Notwithstanding provisions of this paragraph to the contrary, refunds to a school district for fuel consumed by school buses operated for the district by private contractors shall be based on an estimate of taxes paid. The estimate shall be determined quarterly by dividing the total miles traveled by such vehicles for school purposes by their average miles per gallon, as determined by the department, and multiplying the result by the applicable tax rate per gallon. It is the responsibility of the school district to provide information relevant to this determination. (c)1. No refund may be authorized unless a sworn application therefor containing such information as the department may determine is filed with the department not later than the last day of the month following the quarter for which the refund is claimed. However, when a justified excuse for late filing is presented to the department and the last preceding claim was filed on time, the deadline for filing may be extended an additional month. No refund will be authorized unless the amount due is for $5 or more for any refund period and unless application is made upon forms prescribed by the department. 2. Claims made for refunds provided pursuant to subsection (4) shall be paid quarterly. The department shall deduct a fee of $2 for each claim, which fee shall be deposited in the General Revenue Fund. (d) The right to receive any refund under the provisions of this subsection is not assignable, except to the executor or administrator, or to the receiver, trustee in bankruptcy, or assignee in an insolvency proceeding, of the person entitled to the refund. (e)1. Each terminal supplier, importer, exporter, or wholesaler shall, in accordance with the requirements of the department, keep at his or her principal place of business in this state or at the bulk plant where the sale is made a complete record of or duplicate sales tickets for all motor fuel or diesel fuel sold by him or her for which a refund provided in this section may be claimed, which records must give the date of each such sale, the number of gallons sold, the name of the person to whom sold, and the sale price. A terminal supplier, importer, exporter, or wholesaler, or his or her agent or employee, may not acknowledge or assist in the preparation of any claim for tax refund. 2. Every person to whom a refund permit has been issued under this subsection shall, in accordance with the requirements of the department, keep at his or her residence or principal place of business in this state a record of each purchase of motor fuel or diesel fuel from a terminal supplier, importer, exporter, or wholesaler, or his or her authorized agent; the number of gallons purchased; the name of the seller; the date of the purchase; and the sale price. 3. The records required to be kept under this paragraph are subject, at all reasonable hours, to audit or inspection by the department or by any person duly authorized by the department. Such records shall be preserved and may not be destroyed until the period specified in s. 215.26(2) has elapsed. 4. The department shall keep a permanent record of the amount of refund claimed and paid to each claimant. Such records are open to public inspection. (f) Agents of the department are authorized to go upon the premises of any permitholder or terminal supplier, importer, exporter, or wholesaler, or duly authorized agent thereof, to make inspection to ascertain any matter connected with the operation of this subsection or the enforcement hereof. However, no agent may enter the dwelling of any person without the consent of the occupant or authority from a court of competent jurisdiction. (g) If any taxes are refunded erroneously, the department shall advise the payee by registered mail of the erroneous refund. If the payee fails to reimburse the state within 15 days after the receipt of the letter, an action may be instituted by the department against such payee in the circuit court, and the department shall recover from the payee the amount of the erroneous refund plus a penalty of 25 percent. (h) No person shall: 1. Knowingly make a false or fraudulent statement in an application for a refund permit or in an application for a refund of any taxes under this section; 2. Fraudulently obtain a refund of such taxes; 3. Knowingly aid or assist in making any such false or fraudulent statement or claim; or 4. Buy motor fuel or diesel fuel to be used for any purpose other than as provided in subsection (4). (i) The refund permit of any person who violates any provision of this subsection shall be revoked by the department and may not be reissued until 2 years have elapsed from the date of such revocation. The refund permit of any person who violates any other provision of this chapter may be suspended by the department for any period, in its discretion, not exceeding 6 months. (j) The department shall prescribe a permit form which shall be used to secure refunds under this subsection. (6) Unless otherwise provided for by this chapter, the taxes specified in subsection (1) are imposed on all of the following: (a) The removal of motor fuel in this state from a terminal if the motor fuel is removed at the rack. (b) The removal of motor fuel in this state from any refinery if either of the following applies: 1. The removal is by bulk transfer and the owner of the motor fuel immediately before the removal is not a licensed terminal supplier; or 2. The removal is at the refinery rack. (c) The entry of motor fuel into this state for sale, consumption, use, or warehousing if either of the following applies: 1. The entry is by bulk transfer and the enterer is not licensed as a terminal supplier or importer; or 2. The entry is not by bulk transfer. (d) The removal of motor fuel in this state to an unregistered person, unless there was a prior taxable removal, entry, or sale of the motor fuel. (e) The removal or sale of blended motor fuel in this state by the blender thereof. The number of gallons of blended motor fuel subject to tax is the difference between the total number of gallons of blended motor fuel removed or sold and the number of gallons of previously taxed motor fuel used to produce the blended motor fuel. B.1. Section 10, ch. 94-146, provides that: "(1) Notwithstanding the provisions of s. 206.60, Florida Statutes, or any other provision of law to the contrary, effective July 1, 1994, through June 30, 1997, the Department of Revenue shall deduct administrative costs incurred in collecting, administering, enforcing, and distributing the fuel taxes authorized in ss. 212.62, 206.60, 206.605, 206.87, 206.9825, 336.026, 336.021, 336.025, and 206.41, Florida Statutes, from the proceeds of the county tax on motor fuel authorized in s. 206.60, Florida Statutes. "(2) This section shall take effect July 1, 1994." 2. Section 98, ch. 95-417, amended s. 10(1), ch. 94-146, effective July 1, 1996, to read: "(1) Notwithstanding the provisions of s. 206.60, Florida Statutes, or any other provision of law to the contrary, effective July 1, 1994, through June 30, 1997, the Department of Revenue shall deduct administrative costs incurred in collecting, administering, enforcing, and distributing the fuel taxes authorized in ss. 206.87, 206.9825, and 206.41, Florida Statutes, from the proceeds of the county tax on motor fuel authorized in s. 206.41(1)(b), Florida Statutes." C.1. Section 11, ch. 94-146, provides that: "(1) Notwithstanding the provisions of s. 206.60, Florida Statutes, or any other provision of law to the contrary, effective July 1, 1997, through June 30, 1998, the Department of Revenue shall deduct administrative costs incurred in collecting, administering, enforcing, and distributing the fuel taxes authorized in ss. 212.62, 206.60, 206.605, 206.87, 206.9825, 336.026, 336.021, 336.025, and 206.41, Florida Statutes, by deducting one-third of such costs proportionally from the proceeds of the fuel taxes levied pursuant to ss. 212.62, 206.605, 206.87, 206.9825, 336.026, 336.021, and 336.025, Florida Statutes, and by deducting two-thirds of such costs from the proceeds of the county tax on motor fuel authorized in s. 206.60, Florida Statutes. "(2) This section shall take effect July 1, 1997." 2. Section 99, ch. 95-417, amended s. 11(1), ch. 94-146, effective July 1, 1996, to read: "(1) Notwithstanding the provisions of s. 206.06, Florida Statutes, or any other provision of law to the contrary, effective July 1, 1997, through June 30, 1998, the Department of Revenue shall deduct administrative costs incurred in collecting, administering, enforcing, and distributing the fuel taxes authorized in ss. 206.87, 206.9825, and 206.41, Florida Statutes, by deducting one-third of such costs proportionally from the proceeds of the fuel taxes levied pursuant to ss. 206.41(1)(c), (d), (e), (f), and (g), 206.87, and 206.9825, Florida Statutes, and by deducting two-thirds of such costs from the proceeds of the county tax on motor fuel authorized in s. 206.41(1)(b), Florida Statutes." D.1. Section 12, ch. 94-146, provides that: "(1) Notwithstanding the provisions of s. 206.60, Florida Statutes, or any other provision of law to the contrary, effective July 1, 1998, through June 30, 1999, the Department of Revenue shall deduct administrative costs incurred in collecting, administering, enforcing, and distributing the fuel taxes authorized in ss. 212.62, 206.60, 206.605, 206.87, 206.9825, 336.026, 336.021, 336.025, and 206.41, Florida Statutes, by deducting two-thirds of such costs proportionally from the proceeds of the fuel taxes levied pursuant to ss. 212.62, 206.605, 206.87, 206.9825, 336.026, 336.021, and 336.025, Florida Statutes, and by deducting one-third of such costs from the proceeds of the county tax on motor fuel authorized in s. 206.60, Florida Statutes. "(2) This section shall take effect July 1, 1998." 2. Section 100, ch. 95-417, amended s. 12(1), ch. 94-146, effective July 1, 1996, to read: "(1) Notwithstanding the provisions of s. 206.60, Florida Statutes, or any other provision of law to the contrary, effective July 1, 1998, through June 30, 1999, the Department of Revenue shall deduct administrative costs incurred in collecting, administering, enforcing, and distributing the fuel taxes authorized in ss. 206.87, 206.9825, and 206.41, Florida Statutes, by deducting two-thirds of such costs proportionally from the proceeds of the fuel taxes levied pursuant to ss. 206.41(1)(c), (d), (e), (f), and (g), 206.87, and 206.9825, Florida Statutes, and by deducting one-third of such costs from the proceeds of the county tax on motor fuel authorized in s. 206.41(1)(b), Florida Statutes." Note. Former s. 208.04.