Chapter 62 Oregon Laws 1999
Session Law
AN ACT
SB 250
Relating to taxation;
creating new provisions; amending ORS 305.992, 323.155, 323.160, 323.165,
323.170, 323.175, 323.180, 323.185, 323.190, 323.195, 323.305, 323.320,
323.325, 323.330, 323.335, 323.340, 323.385, 323.390 and 323.585; and repealing
ORS 323.350 and 323.380.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 323.155 is amended to read:
323.155. Except for the use or consumption of cigarettes by
other than a licensed distributor, and as may be authorized under the
provisions of ORS 323.170, the tax imposed by ORS 323.005 to 323.455 and
323.990 with respect to distributions of cigarettes shall be paid by
distributors through the use of stamps [or
meter impressions]. The Department of Revenue shall furnish stamps for sale
[and provide for the sale of meter
register settings for metering machines approved by the department].
SECTION 2.
ORS 323.160 is amended to read:
323.160. (1) Stamps [and
meter impressions shall be of such designs,] shall be designed according to specifications and denominations [as may be] prescribed by the Department
of Revenue. The department shall prescribe by [regulation] rule the
method and manner in which stamps [or
meter impressions] are to be affixed to packages of cigarettes and may
provide for the cancellation of stamps [or
meter impressions].
(2) An appropriate stamp shall be affixed to[, or an appropriate meter impression shall
be made on,] each package of cigarettes prior to the distribution of the
cigarettes.
SECTION 3.
ORS 323.165 is amended to read:
323.165. (1) [A metering
machine may be used and a meter may be stored, transferred, transported,
repaired, opened, set or used only in accordance with rules and regulations
prescribed by the Department of Revenue. Meters, meter register settings, or]
Unaffixed stamps shall not be sold, exchanged or in any manner transferred by a
distributor to another person without prior written approval of the Department of Revenue.
(2) With the approval of the Oregon Department of
Administrative Services, the Department of Revenue may enter into contracts
with financial institutions[,
conveniently located with reference to distributors, constituting such
financial institutions] to act as
the department's agents for the sale of stamps [and setting of meters,] and matters [appertaining thereto]
relating to the sale of stamps.
SECTION 4.
ORS 323.170 is amended to read:
323.170. (1) Stamps [and
meter register settings] shall be sold to a licensed distributor at their
denominated values less a sum allowed as compensation to a distributor for
services in affixing stamps [or meter
impressions] to packages as required by ORS 323.005 to 323.455 and 323.990.
Payment for stamps [or meter register
settings] shall be made at the time of purchase, provided that a licensed
distributor, subject to the conditions and provisions of ORS 323.005 to 323.455
and 323.990, may be permitted to defer stamp
payments [therefor].
(2) The compensation to each distributor for each package of 20
cigarettes to which the distributor affixes an Oregon stamp [or meter impression] during the calendar
year shall be:
(a) For the first 26,000 cases of cigarettes, $.0024 per
package.
(b) For any volume in excess of 26,000 cases, $.0018 per package.
SECTION 5.
ORS 323.175 is amended to read:
323.175. A licensed distributor may apply to the Department of
Revenue to fix the maximum amount of deferred-payment purchases of stamps [and meter register settings which] that the distributor may make in any
calendar month. Upon receipt of the application and the security deposit
required pursuant to ORS 323.110, the department shall fix [such] the maximum amount. The department at any time may designate the
sales locations where the distributor may make deferred-payment purchases of
stamps [and meter register settings]
and fix the amount of [such] deferred-payment purchases [which] that the distributor may make within each monthly period at the
designated sales location.
SECTION 6.
ORS 323.180 is amended to read:
323.180. A distributor shall authorize in writing those persons
who may order purchases of stamps [or
meter register settings] for the account of the distributor at a location
where stamps [or meter register settings]
are sold. The authorization shall continue in effect until written notice of
revocation of the authority is delivered at the sales location in [such] a manner [as may be]
prescribed by the Department of Revenue.
SECTION 7.
ORS 323.185 is amended to read:
323.185. (1) Amounts owing for stamps [and meter register settings] purchased on the deferred-payment
basis for a calendar month shall be due and payable on or before the 20th day
of the next calendar month. Payments shall be made by a remittance payable to
the Department of Revenue.
(2) The department for good cause may extend [for not to exceed five days] the time
for paying any amount owing for stamps [or
meter register settings] purchased on the deferred-payment basis. The extension may not exceed five days.
The extension may not be granted unless [provided] a request for the extension is filed with the department
within or prior to the period for which the extension may be granted.
SECTION 8.
ORS 323.190 is amended to read:
323.190. The Department of Revenue may suspend without prior
notice a distributor's privilege to purchase stamps [or meter register settings] on the deferred-payment basis or may
reduce the amount of permissible monthly purchases fixed for the distributor,
if the distributor fails to pay promptly for stamps [or meter register settings] when payment is due, if the bond or
bonds of the distributor are canceled, become void, impaired, or unenforceable
for any reason, or if in the opinion of the department, collection of any
amounts unpaid or due from the distributor under ORS 323.005 to 323.455 and
323.990 are jeopardized.
SECTION 9.
ORS 323.195 is amended to read:
323.195. Any distributor who fails to pay any amount owing to
the purchase of stamps [or meter register
settings] within the time required, shall pay a penalty of 10 percent of
the amount due in addition to the amount plus interest at the rate established
under ORS 305.220 for each month, or fraction thereof, from the date on which
the amount became due and payable until the date of payment.
SECTION 10.
ORS 323.305 is amended to read:
323.305. If a distributor fails to make payment for stamps [or meter register settings] when payment
is due, the Department of Revenue may compute and determine from any available
records and information the amount required to be paid, including interest and
penalties. One or more determinations may be made of the amount due for one or
for more than one purchase. In making a determination the department may offset
overpayments with respect to purchases of stamps [or meter register settings] against underpayments for purchases and
interest and penalties on the underpayments. The department shall give the
distributor written notice of its determination in the manner [provided by ORS 323.380 (6)] required pursuant to section 21 of this
1999 Act. Except in the case of fraud, every notice of a determination made
under ORS 323.005 to 323.455 and 323.990 shall be given within three years of
the due date for payment of the purchase of stamps [or a meter register setting].
SECTION 11.
ORS 323.320 is amended to read:
323.320. (1) The Department of Revenue shall, pursuant to [regulations prescribed by it] rule, refund or credit to a
distributor the denominated values, less the discount given on their purchase,
of:
(a) Any unused or damaged stamps [or meter register settings.];
or
(b) Stamps [or meter
impressions] affixed to packages of cigarettes [which have] that, prior
to or after distribution, have become unfit for use, unsalable, [or
have been] destroyed, [or which after
distribution have become unfit for use or unsalable and have been] returned
for credit or [have been] replaced,
and the department has proof of the cigarettes not being used for smoking in
the State of Oregon.
[(2) Notwithstanding the
provisions of ORS 323.330, no interest shall be paid with respect to refunds
made under this section.]
(2) Interest shall be
computed, allowed and paid with respect to a refund made under this section, at
the rate established under ORS 305.220 for each month or fraction of a month
during a period beginning 45 days after the receipt by the department of a
claim for refund.
SECTION 12.
ORS 323.325 is amended to read:
323.325. No refund or credit for amounts overpaid for the
purchase of stamps [or meter register
settings] shall be allowed or approved after three years from the due date
for payment of the purchase for which the overpayment was made, or with respect
to a determination made pursuant to ORS 323.005 to 323.455 and 323.990, after
six months from the date the determination becomes final, or after six months
from the date of overpayment, whichever period expires the later, unless a
claim therefor is filed with the Department of Revenue within [such] the applicable period.
SECTION 13.
ORS 323.330 is amended to read:
323.330. [Except as
provided] Unless the refund is one
described in ORS 323.320, interest shall be computed, allowed and paid upon
any overpayment for the purchase of stamps [or
meter register settings] at the rate established under ORS 305.220 for each
month or fraction of a month during a period beginning 45 days after the due
date for payment of the purchase for which the overpayment was made or the date
of the payment, whichever is the later, to the time the refund is made. No
refund or credit shall be made of any interest imposed upon the claimant with
respect to the amount being refunded or credited.
SECTION 14.
ORS 323.335 is amended to read:
323.335. (1) Each
distributor shall, along with the report filed as prescribed under ORS 323.340,
submit quarterly a remittance payable to the Department of Revenue for the
amount of tax due, but not yet paid, under ORS 323.005 to 323.455 and 323.990.
(2) For taxpayers other than
licensed distributors, when the tax imposed under ORS 323.005 to 323.455 and 323.990 is not
paid through the use of stamps [or meter
impressions], the tax shall be due and payable monthly on or before the
20th day of the month following the calendar month in which a distribution of
cigarettes occurs[, or].
(3) In the case of a sale of
cigarettes on the facilities of a common carrier for which the tax is imposed
pursuant to ORS 323.040, the tax shall be due and payable monthly on or before
the 20th day of the month following the calendar month in which a sale of
cigarettes on the facilities of the carrier occurs.
SECTION 15.
ORS 323.340 is amended to read:
323.340. (1) On or before the 20th day of [each month] January, April,
July and October, every distributor shall file on forms prescribed by the
Department of Revenue a report containing [such] any information [as] the department may require to carry out the purposes of ORS
323.005 to 323.455 and 323.990.
[(2) When any distributor
regularly maintains and closes the books and records of the distributor
pursuant to a method utilizing periods ending each four calendar weeks, the
department by regulation may require different reporting and payment date for
such distributor, conforming as nearly as practicable with the reporting and
payment dates of other distributors.]
[(3)] (2) A distributor holding more than
one distributor's license and having centralized accounting may file one
composite report combining the information required of each license location
under subsection (1) of this section.
SECTION 16. ORS 323.380 is repealed and section 17 of
this 1999 Act is enacted in lieu thereof.
SECTION 17. The provisions of ORS 314.400 apply to a
person required to pay a tax due or file a report or return under ORS 323.005
to 323.455 and 323.990 who fails to timely pay the tax due or who fails to timely
file the report or return required.
SECTION 18.
ORS 323.385 is amended to read:
323.385. (1) If the Department of Revenue believes that the
collection of any amount of tax required to be paid by any person under ORS
323.005 to 323.455 and 323.990 will be jeopardized by delay, it shall thereupon
make a determination of the amount of tax, noting that fact upon the
determination. The amount determined is immediately due and payable, with
interest and penalty as provided in ORS 323.380.
(2) If the amount of the tax, interest, and penalty specified
in the jeopardy determination is not paid within 20 days after service upon the
person of notice of the determination, the determination becomes final, unless
a petition for redetermination is filed within the 20 days.
(3) The person against whom a jeopardy determination is made
may petition for the redetermination thereof pursuant to ORS 323.416. The
person shall, however, file the petition for redetermination with the
department within 20 days after the service upon the person of notice of the
determination. The person shall at the time of filing the petition for
redetermination deposit with the department such security as it may deem
necessary to insure compliance with ORS 323.005 to 323.455 and 323.990. The security
may be sold by the department at public sale if it becomes necessary in order
to recover any amount due. Notice of the sale may be served upon the person who
deposited the security personally or by mail in the same manner as prescribed [for service of notice by ORS 323.380 (6)] pursuant to section 21 of this 1999 Act.
Upon any such sale, the surplus, if any, above the amount due under ORS 323.005
to 323.455 and 323.990 shall be returned to the person who deposited the
security.
SECTION 19.
ORS 323.390 is amended to read:
323.390. (1) If any tax imposed by ORS 323.005 to 323.455 and
323.990 or any portion of such tax is not paid within 30 days after notice of a
deficiency determination is given [under
ORS 323.380 (6)] pursuant to section
21 of this 1999 Act or of a tax determined under ORS 323.385, and no
provision is made to secure the payment thereof by bond, deposit or otherwise,
pursuant to regulations promulgated by the Department of Revenue, the
department shall:
(a) Assess a collection charge of $5 if the sum of the tax,
penalty and interest then due exceeds $10.
(b) Issue a warrant directed to the sheriff of any county of
the state commanding the sheriff to levy upon and sell the real and personal
property of the taxpayer found within that county, for the payment of the
amount of the tax, with the added penalties, interest, collection charge and
the sheriff's cost of executing the warrant, and to return such warrant to the
department and pay to it the money collected by virtue thereof by a time to be
therein specified, not less than 60 days from the date of the warrant.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy thereof, and thereupon
the clerk shall enter in the County Clerk Lien Record the name of the taxpayer
mentioned in the warrant, and the amount of the tax or portion thereof and
penalties and interest for which the warrant is issued and the date when such
copy is recorded. Thereupon the amount of the warrant so recorded shall become
a lien upon the title to and interest in property of the taxpayer against whom
it is issued in the same manner as a judgment duly docketed. The sheriff
thereupon shall proceed upon the same in all respects, with like effect and in
the same manner prescribed by law in respect to executions issued against
property upon judgment of a court of record, and shall be entitled to the same
fees for services in executing the warrant, to be added to and collected as a
part of the warrant liability.
(3) In the discretion of the department a warrant of like
terms, force and effect may be issued and directed to any agent authorized to
collect income taxes, and in the execution thereof the agent shall have all the
powers conferred by law upon sheriffs, but is entitled to no fee or
compensation in excess of actual expenses paid in the performance of such duty.
(4) If a warrant is returned not satisfied in full, the
department shall have the same remedies to enforce the claim for taxes against
the taxpayer as if the people of the state had recovered judgment against the
taxpayer for the amount of the tax.
SECTION 20. Section 21 of this 1999 Act is added to and
made a part of ORS 323.005 to 323.455.
SECTION 21. Except as otherwise provided in ORS 323.005
to 323.455 and 323.990 or where the context requires otherwise, the provisions
of ORS chapters 305 and 314 as to the audit and examination of returns, periods
of limitation, determination of and notices of deficiencies, assessments,
liens, delinquencies, claims for refund and refunds, conferences, appeals to
the Oregon Tax Court, stays of collection pending appeal, confidentiality of
returns and the penalties relative thereto, and the procedures relating
thereto, shall apply to the determinations of taxes, penalties and interest
under ORS 323.005 to 323.455 and 323.990.
SECTION 22.
ORS 305.992 is amended to read:
305.992. (1) If any returns required to be filed under ORS
chapter 118, 314, 316, 317, 318, [or] 321 or 323 or under a local tax administered by the Department of
Revenue under ORS 305.620 are not filed for three consecutive years by the due
date (including extensions) of the return required for the third consecutive
year, there shall be a penalty for each year of 100 percent of the tax
liability determined after credits and prepayments for each such year.
(2) The penalty imposed under this section is in addition to
any other penalty imposed by law. However, the total amount of penalties
imposed for any taxable year under this section, ORS 305.265 (13) [and],
314.400, 323.585 or section 21 of this
1999 Act shall not exceed 100 percent of the tax liability.
SECTION 23. Sections 17, 20 and 21 of this 1999 Act,
the amendments to statutes by sections 1 to 15, 18, 19 and 22 of this 1999 Act
and the repeal of ORS 323.380 by section 16 of this 1999 Act apply to cigarette
tax reporting periods beginning on or after January 1, 2000.
SECTION 24. (1) ORS 323.350 is repealed on January 1,
2000.
(2) The repeal of ORS
323.350 by subsection (1) of this section shall not alter or affect the
validity of any outstanding tax liability arising from a distribution of
cigarettes occurring before January 1, 2000.
SECTION 25.
ORS 323.585 is amended to read:
323.585. [(1)] The provisions of ORS 314.400 apply to a
person who fails [if there is a
failure] to file a return required under the Tobacco Products Tax Act or [a failure] who fails to pay a tax at the time the tax becomes due, and no
extension is granted under ORS 323.510, or if the time granted as an extension
has expired and [there is a failure] the person fails to file a return or
pay a tax[, there shall be added to the
amount of tax required to be shown on the return a delinquency penalty of five
percent of the amount of the tax].
[(2) If the failure to
file a return continues for a period in excess of three months after the due
date:]
[(a) There shall be added
to the amount of tax required to be shown on the return a failure to file
penalty of 20 percent of the amount of such tax; and]
[(b) Thereafter, the
Department of Revenue may send a notice and demand to the person to file a
return within 30 days of the mailing of the notice. If after such notice and
demand no return is filed within the 30 days, the department may determine the
tax according to the best of its information and belief, assess the tax with
appropriate penalty and interest, plus an additional penalty of 25 percent of
the tax deficiency determined by the department, and give written notice of the
determination and assessment to the person required to make the filing.]
[(3) A penalty equal to
100 percent of any deficiency determined by the department shall be assessed
and collected if:]
[(a) There is a failure
to file a return with intent to evade the tax; or]
[(b) A return was falsely
prepared and filed with intent to evade the tax.]
[(4) Interest shall be
collected on the unpaid tax at the rate established under ORS 305.220, for each
month or fraction of a month, computed from the time the tax became due, during
which the tax remains unpaid.]
[(5) Each penalty imposed
under this section is in addition to any other penalty imposed under this
section. However, the total amount of penalty imposed under this section with
respect to any deficiency shall not exceed 100 percent of the deficiency.]
SECTION 26. The amendments to ORS 323.585 by section 25
of this 1999 Act apply to failures to file returns or make payments for tobacco
product tax reporting periods beginning on or after January 1, 2000.
Approved by the Governor
April 20, 1999
Filed in the office of
Secretary of State April 20, 1999
Effective date October 23,
1999
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