Chapter 769 Oregon Laws 1999

Session Law

AN ACT

HB 2190

Relating to fuel taxes; creating new provisions; and amending ORS 319.040, 319.050, 319.090, 319.120, 319.180, 319.560, 319.611, 319.694 and 319.990.

Be It Enacted by the People of the State of Oregon:

COLLECTION OF DELINQUENT TAXES

SECTION 1. Sections 2 to 4 of this 1999 Act are added to and made a part of ORS 319.010 to 319.430.

SECTION 2. (1) If a person fails to pay in full any tax, interest or penalty due under ORS 319.010 to 319.430, the Department of Transportation may issue a warrant under the department's official seal 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 person found within that county, for payment of the amount due, with the added penalties or charges, interest and the cost of executing the warrant, and to return the warrant to the department and pay to the department the money collected from the sale by the time specified in the warrant, 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 of the warrant. The clerk shall enter in the County Clerk Lien Record the name of the person mentioned in the warrant, the amount of the tax or portion of the tax and penalties or charges for which the warrant is issued and the date when the copy is recorded. The amount of the warrant shall become a lien upon the title to and interest in property of the person against whom it is issued in the same manner as a judgment duly docketed.

(3) The sheriff shall proceed upon the warrant 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.

(4) In the discretion of the Department of Transportation, a warrant of like terms, force and effect to levy upon funds of the person in possession of the Department of Revenue may be issued and directed to any agent authorized by the Department of Transportation to collect taxes payable under ORS 319.010 to 319.430, and in the execution thereof the agent shall have all of 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.

SECTION 3. (1) The Department of Transportation may engage the services of a collection agency to collect any of the taxes, interest and penalties due to the state under ORS 319.010 to 319.430. The department may engage the services by entering into agreements to pay reasonable charges on a contingent fee or other basis.

(2) The department may assign to the collection agency, for collection purposes only, any of the taxes, interest and penalties due the state under ORS 319.010 to 319.430.

(3) The collection agency may bring such actions or take such proceedings, including attachment and garnishment proceedings, as may be necessary.

SECTION 4. (1) Any tax, interest or penalty due the state assigned to a collection agency pursuant to section 3 of this 1999 Act that remains uncollected for two years after the date of such assignment meets the criteria for uncollectibility formulated pursuant to ORS 293.240, and may be assigned to the Secretary of State.

(2) ORS 293.245 applies to any tax, interest or penalty due the state assigned to the Secretary of State pursuant to subsection (1) of this section.

SECTION 5. ORS 319.090 is amended to read:

319.090. (1) If any dealer sells, distributes or uses any motor vehicle fuel without first filing the certificate and bond and securing the license required by ORS 319.030, the license tax provided in ORS 319.020 shall immediately be due and payable on account of all motor vehicle fuel so sold, distributed or used.

(2) Except as otherwise provided in this subsection, the Department of Transportation shall proceed forthwith to determine, from the best available sources, the amount of such tax, and it shall immediately assess the tax and interest in the amount found due, together with a penalty of 100 percent of the tax, and shall make its certificate of such assessment and penalty. The department may waive all or part of a penalty imposed under this subsection if the department determines that a violation of the requirement under this section to file the certificate and bond or to secure the license was due to reasonable cause and without intent to avoid payment of the tax. In any suit or proceeding to collect such tax, interest or penalty, the certificate is prima facie evidence that the dealer therein named is indebted to the State of Oregon in the amount of the tax, interest and penalty therein stated.

[(3) Any tax, interest or penalty so assessed may be collected in the manner prescribed in ORS 319.180 with reference to delinquency in payment of the tax or by an action at law, which the Attorney General shall commence and prosecute to final determination at the request of the department.]

SECTION 6. ORS 319.180 is amended to read:

319.180. (1) The license tax imposed by ORS 319.020 shall be paid on or before the 25th day of each month to the Department of Transportation which, upon request, shall receipt the dealer therefor.

(2) Except as provided in subsection (4) of this section, to any license tax not paid as required by subsection (1) of this section there shall be added a penalty of one percent of such license tax.

(3) Except as provided in subsection (4) of this section, if the tax and penalty required by subsection (2) of this section are not received on or before the close of business on the last day of the month in which the payment is due, a further penalty of 10 percent shall be paid in addition to the penalty provided for in subsection (2) of this section.

(4) If the department determines that the delinquency was due to reasonable cause and without any intent to avoid payment, the penalties provided by subsections (2) and (3) of this section may be waived. Penalties imposed by this section shall not apply when the penalty provided in ORS 319.090 has been assessed and paid.

(5)(a) If the license tax imposed by ORS 319.020 is not paid as required by subsection (1) of this section, interest shall be charged at the rate of .0329 percent per day until the tax and interest have been paid in full.

(b) If the license tax imposed by ORS 319.020 is overpaid, the department may credit interest to the account of the taxpayer in the amount of .0329 percent per day up to a maximum amount that equals any interest assessed against the taxpayer under paragraph (a) of this subsection in any given audit period.

[(6) If any person fails to pay the license tax as required by ORS 319.010 to 319.430, or any penalty provided in ORS 319.010 to 319.430 and 319.990 (1) to (3), the amounts thereof shall be collected from such person for the use of this state. The Attorney General shall commence and prosecute to final determination in any court of competent jurisdiction an action at law to collect the same.]

[(7)] (6) No dealer who incurs a tax liability as provided for in ORS 319.010 to 319.430, shall knowingly and willfully fail to report and pay the same to the department as required by ORS 319.010 to 319.430.

SECTION 7. ORS 319.120 is amended to read:

319.120. Except as otherwise provided in ORS 319.180 and 319.200, the remedies of the state provided in ORS 319.090, 319.100 and [to] 319.110 are cumulative. No action taken pursuant to those statutes shall relieve any person from the penal provisions of ORS 319.010 to 319.430 and 319.990.

SECTION 8. Sections 9 to 11 of this 1999 Act are added to and made a part of ORS 319.510 to 319.880.

SECTION 9. (1) If a person fails to pay in full any obligation due under ORS 319.510 to 319.880, the Department of Transportation may issue a warrant under the department's official seal 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 person found within that county, for payment of the amount of the obligation and the cost of executing the warrant, and to return the warrant to the department and pay to the department the money collected from the sale by the time specified in the warrant, 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 of the warrant. The clerk shall enter in the County Clerk Lien Record the name of the person mentioned in the warrant, the amount of the obligation for which the warrant is issued and the date when the copy is recorded. The amount of the warrant shall become a lien upon the title to and interest in property of the person against whom it is issued in the same manner as a judgment duly docketed.

(4) In the discretion of the Department of Transportation, a warrant of like terms, force and effect to levy upon funds of the person in possession of the Department of Revenue may be issued and directed to any agent authorized by the Department of Transportation to collect taxes payable under ORS 319.510 to 319.880, and in the execution thereof the agent shall have all of 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.

SECTION 10. (1) The Department of Transportation may engage the services of a collection agency to collect any obligation due to the state under ORS 319.510 to 319.880. The department may engage the services by entering into agreements to pay reasonable charges on a contingent fee or other basis.

(2) The department may assign to the collection agency, for collection purposes only, any of the obligations due the state under ORS 319.510 to 319.880.

(3) The collection agency may bring such actions or take such proceedings, including attachment and garnishment proceedings, as may be necessary.

SECTION 11. (1) Any obligation due the state assigned to a collection agency pursuant to section 10 of this 1999 Act that remains uncollected for two years after the date of such assignment meets the criteria for uncollectibility formulated pursuant to ORS 293.240, and may be assigned to the Secretary of State.

(2) ORS 293.245 applies to any obligation due the state assigned to the Secretary of State pursuant to subsection (1) of this section.

SECTION 11a. (1) The Department of Transportation may not collect taxes, interest or penalties owed under ORS 319.510 to 319.880 for any year prior to 1996 from a person who, at the time the tax liability was incurred:

(a) Was required to pay the taxes described in ORS 825.474 and 825.476;

(b) Held a vehicle transporter certificate issued under ORS 822.310 and transported manufactured structures or held a towing business certificate issued under ORS 822.205;

(c) Complied with all applicable requirements of ORS chapters 825 and 826 regarding taxes and fees; and

(d) Failed to file a report under ORS 319.510 to 319.880.

(2) The department may collect taxes but not penalties and interest owed under ORS 319.510 to 319.880 for the years 1996 through 1998 from a person described in subsection (1) of this section.

(3) If the department collects taxes owed by a person described in subsection (1) of this section for the years 1996 through 1998, the person shall have five years from the date the department gives written notice to the person under ORS 319.760 (3) to pay the full amount due and payable.

(4) A person described in subsection (1) of this section who has paid taxes and penalties under ORS 319.510 to 319.880 prior to the effective date of this 1999 Act may claim a credit for the amount of taxes paid for the years 1993 through 1995.

BONDS

SECTION 12. ORS 319.050 is amended to read:

319.050. (1) At the time of filing the certificate and application for a dealer's license, the Department of Transportation must require the dealer to file with the department, in such form as shall be prepared by the department, a bond duly executed by the dealer as principal with a corporate surety authorized to transact business in this state. The bond shall be payable to the State of Oregon conditioned upon faithful performance of all the requirements of ORS 319.010 to 319.430 and 319.990 (1) to (3), including the payment of all taxes, penalties and other obligations of the dealer, arising out of ORS 319.010 to 319.430 and 319.990 (1) to (3).

(2) The total amount of the bond or bonds required of any dealer shall be fixed by the department and may be increased or reduced by the department at any time subject to the limitations provided in this section. The total amount of the bond or bonds required of any dealer shall be equivalent to twice the estimated monthly license tax, determined in the manner the department deems proper. However, except as provided in subsection (3) of this section, the total amount of the bond or bonds required of any dealer shall never be less than $1,000 nor more than $100,000.

(3) The total amount of the bond or bonds required of persons described in this subsection shall never be less than $1,000 nor more than $250,000. This subsection applies to the following:

(a) A person who first applies for a dealer's license.

(b) A person who has not faithfully performed, as determined by the department, for the last three years, the requirements of ORS 319.010 to 319.430 and 319.990 (1) to (3), as required by subsection (1) of this section. If the department determines that the person has not faithfully performed the requirements, and that the lack of faithful performance was due to reasonable cause and was without any intent to avoid payment, the department may waive the additional bond requirement imposed under this subsection.

(4) Any bond given in connection with ORS 319.010 to 319.430 shall be a continuing instrument and shall cover any and all periods of time including the first and all subsequent periods for which a license may be granted in consequence of the giving of the bond. The liability of the surety on the bond for the aggregate of all claims which arise thereunder shall not exceed the amount of the penalty of the bond. No recoveries on any bond or any execution of any new bond shall invalidate any bond, but the total recoveries under any one bond shall not exceed the amount of the bond.

(5) A dealer required under this section to obtain a bond may demand by proper petition a hearing on the necessity of such bond or the reasonableness of the amount required. A hearing shall be granted and held within 10 days after the demand therefor. The decision of the department shall become final 10 days after service of the order on the dealer.

SECTION 12a. A person who, on the effective date of this 1999 Act, holds a valid dealer's license issued under ORS 319.010 to 319.430 need not obtain a new bond because of the amendments to ORS 319.050 by section 12 of this 1999 Act if the person has been a dealer for the three years immediately preceding the effective date of this 1999 Act and during that time has faithfully performed, as determined by the department, the requirements of ORS 319.010 to 319.430 and 319.990 (1) to (3), as required by ORS 319.050 (1). If the department determines that the person has not faithfully performed the requirements, and that the lack of faithful performance was due to reasonable cause and was without any intent to avoid payment, the department may waive the additional bond requirement imposed under ORS 319.050 (3).

PENALTIES

SECTION 13. ORS 319.611 is amended to read:

319.611. (1) If any person required to be licensed under ORS 319.550 uses fuel in a motor vehicle in this state at a time when the person does not hold a valid user's license or does not display a valid authorization or user's emblem issued by the Department of Transportation, a penalty of 25 percent of the tax applicable to the fuel so used shall be imposed. The penalty so imposed shall be in addition to any other penalty imposed under the provisions of ORS 319.510 to 319.990.

(2) The department may waive any penalty provided by subsection (1) of this section that is imposed after January 1, 1998, if the department determines that there was reasonable cause for the failure to hold a valid user's license or display a valid authorization or user's emblem issued by the department and finds that there was no intent to avoid payment.

SECTION 13a. As soon as practicable, but not later than December 31, 1999, the Department of Transportation shall give notice to all persons licensed under ORS 319.550 and to other interested persons that the department may waive the penalty imposed under ORS 319.611 (1). The notice shall indicate that the department will consider refund claims based on waiver of penalties that were imposed and paid under ORS 319.611 (1) between January 1, 1998, and the effective date of this 1999 Act.

SECTION 14. ORS 319.694 is amended to read:

319.694. (1) Except as provided in subsection (2) of this section, if any user or seller is delinquent in remitting the tax provided by ORS 319.530 on the date specified in ORS 319.690, 319.675, 319.681 or 319.692, a penalty of 10 percent of the amount of the tax due shall be added to the amount due and the total shall immediately be due and payable.

(2) If the Department of Transportation determines that the delinquency was due to reasonable cause and without any intent to avoid payment, the penalty provided by subsection (1) of this section may be waived.

(3)(a) If the excise tax imposed by ORS 319.530 is not paid as required by ORS 319.690, 319.675, 319.681 or 319.692, interest shall be charged at the rate of .0329 percent per day until the tax and interest have been paid in full.

(b) If the excise tax imposed by ORS 319.530 is overpaid, the department may credit interest to the account of the taxpayer in the amount of .0329 percent per day up to a maximum amount that equals any interest assessed against the taxpayer under paragraph (a) of this subsection in any given audit period.

(4) No seller or user who incurs a tax liability as provided in ORS 319.510 to 319.880 shall knowingly and willfully fail to report and pay the tax liability to the department as required by ORS 319.510 to 319.880.

SECTION 15. ORS 319.990 is amended to read:

319.990. (1) Any person who violates any of the provisions of ORS 319.010 to 319.430, or any person who makes any false statement in any statement required by ORS 319.010 to 319.430 for the refund of any money or tax as provided in ORS 319.010 to 319.430, or who collects or causes to be repaid to the person or any person any tax, without being entitled to it under the provisions of ORS 319.010 to 319.430, shall, upon conviction, be punished by a fine of not more than $1,000, or by imprisonment in the county jail not more than six months, or both.

(2) Violation of ORS 319.180 [(7)] (6) or 319.694 (4) is theft of public money and, upon conviction, is punishable as provided in ORS 164.043 to 164.057.

(3) Violation of any provision of ORS 319.240 (4) and (5) is punishable, upon conviction, by a fine of not more than $5,000, or by imprisonment in the county jail not exceeding six months, or both.

(4) Violation of any provision of ORS 319.510 to 319.880 is a misdemeanor.

(5) Justice courts have concurrent jurisdiction with the circuit court of all violations under the provisions of ORS 319.010 to 319.125 and 319.190 to 319.430, 319.510 to 319.880 or this section.

LICENSES

SECTION 16. Section 17 of this 1999 Act is added to and made a part of ORS 319.010 to 319.430.

SECTION 17. (1) The Department of Transportation may refuse to issue a dealer license to a person who applies as provided in ORS 319.040 if the department finds that the person:

(a) Was the holder of a license revoked under ORS 319.100;

(b) Is applying for a license on behalf of a real party in interest whose license was revoked under ORS 319.100;

(c) Was an officer, director, owner or managing employee of a nonindividual licensee whose license was revoked under ORS 319.100;

(d) Owes a debt to the state under ORS 319.010 to 319.430;

(e) Had a license issued by a jurisdiction other than Oregon to sell or buy untaxed motor vehicle fuel that was revoked or canceled for cause, whether the license was held by the person as an individual or as an officer, director, owner or managing employee or on behalf of a real party in interest;

(f) In any jurisdiction, pleaded guilty to or was convicted of a crime directly related to the sale, use or distribution of motor vehicle fuel, whether as an individual or as an officer, director, owner or managing employee of a business engaged in the sale or distribution of motor vehicle fuel;

(g) Had a civil judgment imposed for conduct involving fraud, misrepresentation, conversion or dishonesty, as an individual or as an officer, director, owner or managing employee of a business engaged in the sale or distribution of motor vehicle fuel;

(h) Misrepresented or concealed a material fact in obtaining a license or in the reinstatement thereof;

(i) Violated a statute or administrative rule regarding fuel taxation or distribution;

(j) Failed to cooperate with the department's investigations by:

(A) Not furnishing requested documents;

(B) Not furnishing when requested to do so a full and complete written explanation of a matter under investigation by the department; or

(C) Not responding to a subpoena issued by the department; or

(k) Failed to comply with an order issued by the department.

(2) In addition to refusal of a license for reasons specified in subsection (1) of this section, the department may refuse to issue a dealer license for any other reason the department deems sufficient.

(3) Before refusing to issue a license under this section, the department shall grant the applicant a hearing and shall give the applicant at least 10 days' written notice of the time and place of the hearing. The hearing shall be a contested case hearing under the provisions of ORS 183.310 to 183.550.

(4) For purpose of consideration of an application for a license, the department may inspect or investigate the records of this state or of any other jurisdiction to verify the information on the application and to verify the applicant's criminal and licensing history.

SECTION 18. ORS 319.040 is amended to read:

319.040. (1) Every person, before becoming a dealer in motor vehicle fuel in this state, shall make an application to the Department of Transportation for a license authorizing such person to engage in business as a dealer.

(2) Applications for the license must be made on forms prescribed, prepared and furnished by the department.

(3) The applications shall be accompanied by a duly acknowledged certificate containing:

(a) The name under which the dealer is transacting business within Oregon.

(b) The places of business and location of distributing stations of the dealer in Oregon.

(c) The name and address of the managing agent, the names and addresses of the several persons constituting the firm or partnership and, if a corporation, the corporate name under which it is authorized to transact business and the names and addresses of its principal officers and registered agent.

(4) If the dealer is an association of persons, firm, partnership or corporation organized under the laws of another state, territory or country, if it has not already done so, it must first comply with the laws of Oregon relating to the transaction of its appropriate business in Oregon.

(5) The application for a motor vehicle fuel dealer's license having been accepted for filing, and the bond required by ORS 319.050 having been accepted and approved, the department [shall] may issue to the dealer a license in such form as the department may prescribe to transact business as a dealer in the State of Oregon. The license so issued is not assignable, and is valid only for the dealer in whose name issued.

(6) The department shall keep and file all applications and bonds with an alphabetical index thereof, together with a record of all licensed dealers.

SECTION 19. Section 20 of this 1999 Act is added to and made a part of ORS 319.510 to 319.880.

SECTION 20. (1) The Department of Transportation may refuse to issue a user's license or a seller's license to a person who applies as provided in ORS 319.560 or 319.621 if the department finds that the person:

(a) Was the holder of a license revoked under ORS 319.630;

(b) Is applying for a license on behalf of a real party in interest whose license was revoked under ORS 319.630;

(c) Was an officer, director, owner or managing employee of a nonindividual licensee whose license was revoked under ORS 319.630;

(d) Owes a debt to the state under ORS 319.510 to 319.880;

(e) Had a license issued by a jurisdiction other than Oregon to sell or use untaxed use fuel that was revoked or canceled for cause, whether the license was held by the person as an individual or as an officer, director, owner or managing employee or on behalf of a real party in interest;

(f) In any jurisdiction, pleaded guilty to or was convicted of a crime directly related to the sale, use or distribution of use fuel, whether as an individual or as an officer, director, owner or managing employee of a business engaged in the sale or distribution of use fuel;

(h) Misrepresented or concealed a material fact in obtaining a license or in the reinstatement thereof;

(i) Violated a statute or administrative rule regarding fuel taxation or distribution;

(j) Failed to cooperate with the department's investigations by:

(A) Not furnishing requested documents;

(B) Not furnishing when requested to do so a full and complete written explanation of a matter under investigation by the department; or

(C) Not responding to a subpoena issued by the department; or

(k) Failed to comply with an order issued by the department.

(2) In addition to refusal of a license for reasons specified in subsection (1) of this section, the department may refuse to issue a user's license or seller's license for any other reason the department deems sufficient.

SECTION 21. ORS 319.560 is amended to read:

319.560. A user of fuel in a motor vehicle required to be licensed under ORS 319.550 shall apply to the Department of Transportation for a user's license upon forms prescribed by the department and shall set forth such information as the department may require. On receipt of the application, the department [shall] may issue to the applicant a user's license without charge authorizing the applicant to use fuel in a motor vehicle in this state. The license is valid only for the person in whose name it is issued and is valid until canceled or revoked.

SECTION 22. The unit captions used in this 1999 Act are provided only for the convenience of the reader and do not become part of the statutory law of this state or express any legislative intent in the enactment of this 1999 Act.

Approved by the Governor July 19, 1999

Filed in the office of Secretary of State July 19, 1999

Effective date October 23, 1999

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