12B-5.130: Refunds
12B-5.150: Public Use Forms
PURPOSE AND EFFECT: Section 206.8745(6), F.S., grants a refund for undyed tax-paid diesel fuel that is consumed by a power take-off unit or engine exhaust for the purpose of unloading bulk cargo by pumping. Subparagraph (2)(a)2. of Rule 12B-5.130, F.A.C. (Refunds), implements this statute and provides for refunds of the fuel tax paid on 10 gallons per full load pump-off of diesel fuel consumed by a power take-off unit or engine exhaust for the purpose of unloading bulk cargo from a pneumatic tank by pumping. Taxpayers are required to complete Form DR-309639 (Application for Refund of Tax Paid on Undyed Diesel Used for Off-road or Other Exempt Purposes) to apply for such refunds of fuel tax paid.
In Pritchett Trucking, Inc. v. Department of Revenue (Case No. 04-3093 CA, 2nd Circuit, July 3, 2008), the judge held that Section 206.8745, F.S., and subparagraph 12B-5.130(2)(a)2., F.S., requires only pumping is essential to the unloading of bulk cargo, and not whether the means of pumping is by pneumatics, hydraulics, or any other method. The purpose of this rulemaking is to remove the provisions of subparagraph (2)(a)2. of Rule 12B-5.130, F.A.C. (Refunds), and to adopt, by reference, changes to Form DR-309639 which reflect the court's decision. The changes to this rule and form will remove the requirement that a pneumatic pump is necessary to qualify for such refund.
SUMMARY: The proposed amendments to Rule 12B-5.130, F.A.C. (Refunds), removes subparagraph (2)(a)2., which provides for refunds of the fuel tax paid on 10 gallons per full load pump-off of diesel fuel consumed by a power take-off unit or engine exhaust for the purpose of unloading bulk cargo from a pneumatic tank by pumping authorized by Section 206.8745, F.S. The proposed amendments to Rule 12B-5.150, F.A.C. (Public Use Forms), adopt, by reference, changes to Form DR-309639 (Application for Refund of Tax Paid on Undyed Diesel Used for Off-road or Other Exempt Purposes) regarding the refund of fuel tax paid authorized by Section 206.8745, F.S.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 206.14(1), 206.59(1), 206.8745(6), 213.06(1) FS.
LAW IMPLEMENTED: 206.02, 206.021, 206.022, 206.025, 206.026, 206.027, 206.028, 206.05, 206.055, 206.095, 206.404, 206.41(4), (5), 206.43, 206.64, 206.86, 206.8745, 206.877, 206.90, 206.91, 206.92, 206.9931, 206.994, 206.97 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: November 5, 2008, 10:00 a.m.
PLACE: Room 118, Carlton Building, 501 S. Calhoun Street, Tallahassee, Florida
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 48 hours before the workshop/meeting by contacting: Larry Green at (850)922-4830. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Ron Gay, Tax Law Specialist, Technical Assistance and Dispute Resolution, Department of Revenue, P. O. Box 7443, Tallahassee, Florida 32314-7443, telephone (850)922-4732
THE FULL TEXT OF THE PROPOSED RULE IS:
12B-5.130 Refunds.
(1) No change.
(2) UNDYED DIESEL FUEL USED FOR OFF-ROAD PURPOSES OR OTHER EXEMPT PURPOSES.
(a) When undyed diesel fuel is consumed by a power take-off unit or engine exhaust for the purpose of turning a concrete mixer drum, for compacting solid waste, or for unloading bulk cargo by pumping, and such power take-off unit or engine exhaust is mounted on a motor vehicle that has no separate fuel tank, tax paid on the diesel fuel will be subject to a refund. refunded as follows:
1. A refund of tax paid on undyed diesel fuel will be granted on thirty-five percent of the gallons consumed by vehicles that use fuel to turn a concrete mixer drum or for compacting solid waste. Sales tax imposed under Section 212.0501, F.S., plus any applicable discretionary sales surtax, is due on the average cost per gallon that is eligible for a refund of fuel tax paid. The Department will reduce the amount of refund due on fuel tax paid by the amount of sales tax, plus any applicable discretionary sales surtax, due. The net amount of the refund will be granted to the qualified applicant.
2.a. A refund of the tax paid on undyed diesel fuel will be granted on 10 gallons per full load pump-off of diesel fuel consumed by a power take-off or engine exhaust for the purpose of unloading bulk cargo from a pneumatic tank by pumping. Sales tax imposed under Section 212.0501, F.S., plus any applicable discretionary sales surtax, is due on the average cost per gallon that is eligible for a refund. The Department will reduce the amount of refund due on fuel tax paid by the amount of sales tax, plus any applicable discretionary sales surtax, due. The net amount of the refund will be granted to the qualified applicant.
b. For purposes of this section, a full load pump-off means the unloading of at least 54,000 pounds of dry bulk cargo or its equivalent in gallons using a power take-off or engine exhaust. Persons subject to refund under this sub-subparagraph will use Schedule D1 (Full Load Pump-off Product List), of Form DR-309639, Application for Refund of Tax Paid on Undyed Diesel Used for Off-Road or Other Exempt Purposes (incorporated by reference in Rule 12B-5.130, F.A.C.) to determine the number of gallons that would be considered a full load for a given product. Initial refunds for products that are not incorporated into Schedule D1 will require documentation to verify the number of gallons that make up a full load to be submitted to the Department with Form DR-309639.
c. The number of pump-offs will be determined by using the following formula:
Gallons or Pounds Unloaded ÷ Full Load Pump Off (as defined above) = Number of Pump-Offs.
d. Vehicles using gasoline do not qualify for this refund.
(b) through (e) No change.
(3) through (5) No change.
Cross Reference – Rules 12A-1.059 and 12A-1.0641, F.A.C.
Specific Authority 206.14(1), 206.59(1), 206.8745(6), 213.06(1) FS. Law Implemented 206.41(4), (5), 206.43(5), (6), 206.64, 206.8745, 206.97 FS. History–New 7-1-96, Amended 11-21-96, 10-27-98, 5-1-06,________.
12B-5.150 Public Use Forms.
(1)(a) The following public use forms and instructions are utilized by the Department and are hereby incorporated by reference in this rule.
(b) No change.
Form Number Title Effective Date
(2) through (35) No change.
(36) DR-309639 Application for Refund
of Tax Paid on Undyed
Diesel Used for Off-Road
or Other Exempt Purposes
(R. ___ 01/08) ____01/08
(37) through (39) No change.
Specific Authority 206.14(1), 206.59(1), 213.06(1) FS. Law Implemented 206.02, 206.021, 206.022, 206.025, 206.026, 206.027, 206.028, 206.05, 206.055, 206.095, 206.404, 206.43, 206.86, 206.877, 206.90, 206.91, 206.92, 206.9931, 206.9943 FS. History– New 11-21-96, Amended 10-27-98, 5-1-06, 4-16-07, 1-1-08, _________.