Theft of general aviation fuel tax moneys.
All sums paid by a purchaser of general aviation fuel to any general aviation fuel dealer as general aviation fuel taxes, which have not theretofore been paid to the state, are public moneys, the property of this state. Any general aviation fuel dealer who fails or refuses to pay over to the state the tax on general aviation fuel at the time required in this chapter or who fraudulently withholds or appropriates or otherwise uses such moneys or any portion thereof belonging to the state is guilty of theft and shall be punished as provided by law for the crime of theft, irrespective of whether such general aviation fuel dealer has or claims to have any interest in such moneys so received.
History: 1981 c. 20
For the purpose of enforcing this chapter, it is prima facie presumed that all general aviation fuel received by a general aviation fuel dealer or a general aviation fuel user into storage and dispensing equipment designed to fuel aircraft is to be transferred or delivered by the dealer or user into the supply tanks of aircraft.
History: 1981 c. 20
This subchapter does not apply to aviation fuel delivered to or used by the United States or its agencies or to an air carrier company.
History: 1981 c. 20
PROVISIONS COMMON TO MOTOR VEHICLE FUEL TAX, GENERAL AVIATION FUEL TAX AND
ALTERNATE FUEL TAX
In this subchapter:
"Department" means the department of revenue.
History: 1993 a. 16
Suspension and revocation of licenses. 78.65(1)
If a general aviation fuel licensee or licensee under s. 78.09
violates any provision of this chapter and the department deems good cause exists for suspension or revocation by reason of such violation, it may suspend such person's license, or, after a hearing of the charges is held, it may revoke such license. No license may be suspended unless the holder of the license has been notified of a hearing to be held on the charges and no license may be revoked until after the holder of the license has been notified of a hearing and has been afforded an opportunity to appear and testify. The department shall notify the licensee in writing of the time and place a hearing of the charges shall be held. The notice shall contain a statement of the alleged violation, and shall be served upon the licensee at least 10 days prior to the hearing, either by personal delivery to the licensee, or by mailing by registered mail to the address of the licensee as shown in the application. At the time and place fixed in the notice, the department shall proceed to a hearing of the charges, and the licensee shall be afforded an opportunity to present in person or by counsel statements, testimony, evidence and argument pertinent to the charges or to any defense thereto. The department may continue the hearing from time to time but not more than 60 days. After the hearing, the department shall rescind the order of suspension, if any, and for good cause shown shall either suspend the license for a period of time or revoke the license.
Upon the suspension or revocation of any license, the department shall request the holder thereof to surrender to it immediately all copies of licenses issued to the holder, and the holder shall surrender promptly all such copies to the department.
Records to be kept by licensees. 78.66(1)
Every general aviation fuel licensee and licensee under s. 78.09
shall keep a record of all purchases, receipts, sales, distribution and consumption of each kind or trade name of motor vehicle fuel, crude petroleum and general aviation fuel and each alternate fuel.
Every licensee shall keep true and accurate records of all stocks of motor vehicle fuel, crude petroleum and general aviation fuel and each alternate fuel on hand. Every licensee shall take a physical inventory of those fuels on hand at each licensed location at the close of business on the last day of every month.
Every licensee shall retain the records of the inventory required by sub. (2)
and all other records required by this section available for the inspection by the department, and upon demand of the department, any licensee shall furnish a statement under oath reflecting the contents of any record to be kept under this section.
The department may require any person who keeps records in machine-readable form for federal fuel tax purposes to keep those records in the same form for purposes of the taxes under this chapter.
When the final date provided in this chapter for the filing of any report or claim or for the remittance of any tax or penalty falls on a Saturday, Sunday or legal holiday, the next secular or business day shall be the final date. The provisions on timely filing under s. 71.80 (18)
apply to the reports, claims and remittances under this chapter.
Returns; failure to pay; refunds. 78.68(1)
Unpaid taxes shall bear interest at the rate of 12% per year from the due date of the tax until paid or deposited with the department, and all refunded taxes bear interest at the rate of 3 percent per year from the due date of the return to the date on which the refund is certified on the refund rolls.
All payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.
Delinquent tax returns are subject to a $10 late filing fee. Delinquent motor vehicle fuel, alternate fuels and general aviation fuel taxes bear interest at the rate of 1.5% per month until paid. The taxes imposed by this chapter are delinquent if not paid as follows:
In the case of a timely filed return, no return or a late return, on or before the due date of the tax; or
In the case of a deficiency determination of taxes, within 2 months after the date of demand.
If an incorrect return is filed, and upon a showing by the department under s. 73.16 (4)
, the entire tax finally determined is subject to a penalty of 25% of the tax exclusive of interest or other penalty.
In case of failure to file any return required under ss. 78.12
, and 78.58
by the due date, and upon a showing by the department under s. 73.16 (4)
, there shall be added to the amount required to be shown as tax on that return 5% of the amount of the tax if the failure is for not more than one month, and an additional 5% of the tax for each additional month or fraction thereof during which the failure continues, not exceeding 25% of the tax in the aggregate. For purposes of this subsection, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the due date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return.
If a person fails to file a return when due or files a false or fraudulent return with intent in either case to defeat or evade the taxes imposed by this chapter, a penalty of 50% of the tax shall be added to the tax required to be paid, exclusive of interest and other penalties.
Any person who fails to furnish any return required to be made or who fails to furnish any data required by the department may be fined not more than $500 or imprisoned for not more than 30 days or both.
Any person, including an officer of a corporation or a manager of a limited liability company, who is required to make, render, sign or verify any report or return required by this chapter and who makes a false or fraudulent report or return or who fails to furnish a report or return when due with the intent, in either case, to defeat or evade the tax imposed by this subchapter may be fined not more than $500 or imprisoned for not more than 30 days or both.
No person may aid, abet or assist another in making any false or fraudulent return or false statement in any return required by this chapter with intent to defraud the state or evade payment of the tax, or any part thereof, imposed by this chapter. Any person who violates this subsection may be fined not more than $500 or imprisoned for not more than 30 days or both.
Before any tax becomes due, if the department has reason to believe that any licensee intends or is likely to evade or attempt to evade payment of the tax when due, or intends or is likely to convey, dispose of, or conceal his or her property or abscond from the state, or do any other act which would render the state insecure in collecting the tax when due, the department may demand payment forthwith of all taxes upon all motor vehicle fuel received under s. 78.07
, general aviation fuel placed in the fuel supply tank of an aircraft or in bulk storage facilities or alternate fuel used, as defined in s. 78.39 (7)
, by the licensee, which shall immediately become payable and collectible as if delinquent, and the property of the licensee shall be subject to attachment as provided in s. 78.70
Except as provided in ss. 78.19
, 78.20 (2)
and 78.75 (1m) (b)
, s. 71.75 (2)
as it applies to the taxes under ch. 71
applies to the taxes under this chapter. Sections 71.74 (13)
, 71.75 (9)
, 71.80 (3)
, and 73.03 (52)
, and (52n)
, as they apply to refunds of the taxes under ch. 71
apply to the refund of the taxes under this chapter.
See also s. Tax 4.51
, Wis. adm. code.
Actions to collect tax and penalties. 78.70(1)
The department may collect delinquent motor vehicle fuel, alternate fuel and general aviation fuel taxes in the manner provided for the collection of delinquent income and franchise taxes under ss. 71.80 (12)
, 71.82 (2)
, 71.91 (1) (a)
, including proceeding under the authority incorporated by reference in s. 71.91 (5) (j)
and the authority to:
Release real property from the lien of a warrant.
Approve installment payment agreements.
Compromise on the basis of ability to pay.
Compromise delinquent estimated determinations on the basis of fairness and equity.
Delinquent motor vehicle fuel, general aviation fuel or alternate fuel tax shall also be collectible and enforceable by a writ of attachment brought by the attorney general or district attorney in the name of the state against the lands, goods, chattels, credits or other personal property of the licensee, and for the purpose of this section, the licensee shall be deemed to be a nonresident of this state, and such attachment shall be governed in all respects by the provisions of law relating to attachments against nonresidents, but no attachment bond shall be required of the state, nor shall an indemnity bond be required or demanded of any sheriff or constable serving such writ of attachment, and no sheriff or constable shall be liable in damages on account of levying any attachment when acting under the direction of the attorney general or district attorney.
The sheriff or constable shall also summon the persons named in said writ of attachment as garnishees, and all persons within the sheriff's or constable's county whom the attorney general or district attorney shall designate as having any property, effects, choses in action or credits in their possession or power, belonging to the defendant, or who are in anywise indebted to such defendant, the same as if their names had been inserted in such writ.
(4) Assessment constitutes prima facie evidence.
In any action or proceeding for the collection of the tax from the licensee, or any penalties imposed in connection therewith, an assessment by the department, made pursuant to this chapter, of the amount of the motor vehicle fuel, alternate fuel or general aviation fuel taxes, or any penalties imposed in connection therewith, due from the licensee, shall constitute prima facie evidence of the claim of the state, and the burden of proof shall be upon the licensee to show that the assessment was incorrect and contrary to law.
(5) No waiver.
Nothing in this section shall be construed as forfeiting or waiving any right to collect said tax and penalties by an action upon any bond that may be filed with the department under this chapter, or by suit, or otherwise, and in case such suit, action or proceeding has been instituted for the collection of said tax, such suit, action or other proceeding shall not be construed as waiving any other right herein provided.
(6) Personal liability.
Any officer, employee, fiduciary or agent who is responsible for paying taxes, interest, penalties or other charges under this chapter incurred by another person, as defined in s. 77.51 (10)
, is personally liable for those taxes, interest, penalties or other charges. Sections 71.88 (1) (a)
and (2) (a)
, as they apply to appeals of income or franchise tax assessments, apply to appeals of assessments under this subsection.
(7) Statutes of limitations. Section 71.77
as it applies to the taxes under ch. 71
applies to the taxes under this chapter, except that the period during which notice of an additional assessment shall be given begins on the due date of the report under this chapter.
Motor vehicle fuel, general aviation fuel and alternate fuels taxes are preferred claims. 78.71(1)
If the property of any licensee is seized upon any mesne or final process of any court of this state, or when the business of any licensee is suspended by the action of creditors or put into the hands of any assignee, receiver or trustee, all motor vehicle fuel, general aviation fuel or alternate fuels tax moneys and penalties due the state from the licensee shall be considered preferred claims and the state shall be a preferred creditor and shall be paid in full.
If the property of any consumer of motor vehicle fuel, general aviation fuel or alternate fuel is seized upon any mesne or final process of any court of this state, or when the business of any consumer of motor vehicle fuel, general aviation fuel or alternate fuel is suspended by the action of creditors or put into the hands of any assignee, receiver or trustee, all amounts due any licensee for motor vehicle fuel, general aviation fuel or alternate fuels taxes paid to the state by the licensee on motor vehicle fuel, general aviation fuel or alternate fuel purchased from it by the consumer shall be considered preferred claims and the licensee shall be a preferred creditor to that extent and shall be paid in full for such taxes paid.
History: 1981 c. 20
; 1993 a. 16
Preference given actions to enforce this chapter.
All proceedings and hearings, civil or criminal, arising under this chapter shall be given preference.
History: 1983 a. 219
Criminal penalties. 78.73(1)(1)
Any person who does any of the following may be fined not more than $500 or imprisoned not more than 6 months or both:
Displays, or causes or permits to be displayed, or has possession of, any license knowing the same to be fictitious, or to have been suspended, canceled, revoked or altered;
Lends to, or knowingly permits the use by, one not entitled thereto, any license issued to the person lending it or permitting it to be used;
Displays or represents as the person's own any license not issued to the person displaying the same;
Uses a false or fictitious name or gives a false or fictitious address in any application or form required by this chapter, or otherwise commits a fraud in any application, record, report or claim for refund;
Presents an exemption certificate under s. 78.01 (2) (e)
or obtains motor vehicle fuel tax-free under s. 78.01 (2) (f)
, and uses the fuel obtained tax-free on the basis of the certificate in a manner other than the manner for which the certificate was issued;
Uses motor vehicle fuel purchased tax-free and obtained from the storage tank of a general aviation fuel dealer, as defined in s. 78.55 (4)
, in a motor vehicle for highway purposes;
Uses any false or fictitious name or address when purchasing or obtaining motor vehicle fuel or general aviation fuel or alternate fuels from any source for sale or consumption in this state; or
(2) Selling without a license.
Each day in which any person acts as a licensee without a license shall constitute a separate offense, and for each such offense may be fined not more than $5,000 or imprisoned in the county jail for not more than one year or both.
(3) Attempt to assign license.
Any person who assigns or attempts to assign a license issued under this chapter, or who fails to display the license conspicuously at the person's place of business, shall be fined not more than $25 or imprisoned for not more than 10 days for each such offense.
(4) Failure to report or pay.
Any person who fails or refuses to make a report or payment as provided in this chapter shall be fined not more than $5,000 or imprisoned in the county jail for not more than one year or both.
Remedies and penalties are cumulative.
All of the remedies, prosecutions and penalties under this chapter shall be cumulative; no action for recovery of one penalty shall be a bar to or affect the recovery of any other penalty or be a bar to any criminal prosecution.
Refund; procedure; claim unassignable. 78.75(1)
In this section, "invoice" means the top copy and not a carbon copy.
Except as provided under subds. 2.
, a person who uses motor vehicle fuel or an alternate fuel upon which has been paid the tax required under this chapter, for the purpose of operating a taxicab for the transportation of passengers, for the purpose of operating a motorboat exempt from registration as a motor vehicle under s. 341.05 (20)
on privately owned land or for any purpose other than operating a motor vehicle upon the public highways, shall be reimbursed and repaid the amount of the tax paid upon making and filing a claim if the claim is for the tax on 100 gallons or more.
A person who uses motor vehicle fuel or an alternate fuel upon which has been paid the tax required under this chapter for the purpose of operating a snowmobile, as defined under s. 340.01 (58a)
, an aircraft, as defined under s. 78.55 (2)
, or a motorboat, as defined under s. 30.50 (6)
, unless the motorboat is not a recreational motorboat, may not be reimbursed or repaid the amount of tax paid.
A person who uses motor vehicle fuel or an alternate fuel upon which has been paid the tax required under this chapter for the purpose of operating an all-terrain vehicle, as defined under s. 340.01 (2g)
, or a utility terrain vehicle, as defined under s. 23.33 (1) (ng)
, may not be reimbursed or repaid the amount of tax paid unless the all-terrain vehicle or utility terrain vehicle is registered for private use under s. 23.33 (2) (d)
Claims under subd. 1.
shall be made and filed. The forms shall indicate that refunds are not available for motor vehicle fuel or alternate fuels used for motorboats, except motorboats exempt from registration as motor vehicles under s. 341.05 (20)
and motorboats that are not recreational motorboats, or motor vehicle fuel or alternate fuels used for snowmobiles and that the estimated snowmobile motor vehicle fuel or alternate fuels tax payments are used for snowmobile trails and areas. The forms shall indicate that refunds are not available for motor vehicle fuel or alternate fuels used for all-terrain vehicles or utility terrain vehicles unless the vehicle is registered for private use under s. 23.33 (2) (d)
and shall indicate that estimated all-terrain vehicle or utility terrain vehicle motor vehicle fuel or alternate fuels tax payments are used for all-terrain vehicle trails and areas. The forms shall also indicate that refunds are not available for the tax on less than 100 gallons. The department shall distribute forms in sufficient quantities to each county clerk.
Such claim shall be filed not later than 12 months after the date of purchase of the motor vehicle fuel or alternate fuel, or the claim shall not be allowed.