HB0509

HOUSE BILL 509

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Roberto "Bobby" J. Gonzales and Carl Trujillo

and Patricio Ruiloba

AN ACT

RELATING TO TAXATION; REPLACING THE GASOLINE TAX ACT AND THE SPECIAL FUELS SUPPLIER TAX ACT WITH THE MOTOR FUEL TAXES ACT TO IMPOSE TAX ON GASOLINE AND SPECIAL FUELS REMOVED FROM THE RACK OR TERMINAL EFFECTIVE JULY 1, 2018; PROVIDING LICENSING REQUIREMENTS; PROVIDING EXEMPTIONS AND PROCEDURES FOR FILING CREDITS TO REFUNDS; REQUIRING INFORMATION RETURNS; INCREASING THE TAX ON GASOLINE AND THE TAX ON SPECIAL FUEL BY FIVE CENTS ($.05) EFFECTIVE JULY 1, 2017; DISTRIBUTING A PORTION OF THE GASOLINE AND SPECIAL FUEL EXCISE TAX TO THE DEPARTMENT OF TRANSPORTATION FOR MAINTAINING REST STOPS FOR FIVE YEARS, A PORTION TO THE TAX STABILIZATION RESERVE UNTIL STATE RESERVES REACH EIGHT PERCENT AND THE REMAINDER TO THE STATE ROAD FUND AND THE LOCAL GOVERNMENTS ROAD FUND; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 43 of this act may be cited as the "Motor Fuel Taxes Act".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Motor Fuel Taxes Act:

A. "aviation fuel" means gasoline sold for use in aircraft propelled by engines other than turbo-prop or jet-type engines;

B. "biodiesel" means a renewable, biodegradable, mono alkyl ester combustible liquid fuel that is derived from agricultural plant oils or animal fats and that meets the American society for testing and materials specifications for biodiesel fuel, B100 or B99 blend stock for distillate fuels;

C. "blended biodiesel" means a diesel engine fuel that contains at least two percent biodiesel;

D. "blender" means a person who produces blended motor fuel outside the bulk transfer-terminal system;

E. "blending" means the mixing together of liquids that produces a product that is offered for sale, sold, used, or capable of use as fuel for a gasoline-powered engine or diesel-powered engine. "Blending" does not include mixing that occurs in the process of refining by the original refiner of crude petroleum or the commingling of products during transportation in a pipeline;

F. "bulk plant" means a motor fuel storage and distribution facility:

(1) that is a terminal that has not been approved as a terminal by the federal internal revenue service; and

(2) from which motor fuel may be removed at a rack;

G. "bulk storage" means a container of more than ten gallons;

H. "bulk transfer" means a transfer of motor fuel from one location to another by pipeline, including:

(1) a pipeline movement of motor fuel from a refinery or terminal to a terminal;

(2) a book transfer or intank transfer of motor fuel within a terminal between licensed suppliers before completion of removal across the rack; and

(3) a two-party exchange between licensed suppliers or between licensed suppliers and permissive suppliers;

I. "bulk transfer-terminal system" means the motor fuel distribution system consisting of refineries, pipelines and terminals approved by the federal internal revenue service. Motor fuel is in the bulk transfer-terminal system if the motor fuel is in a refinery, a pipeline or a terminal. Motor fuel is not in the bulk transfer-terminal system if the motor fuel is in a motor fuel storage facility, including:

(1) a bulk plant that is not part of a refinery or terminal;

(2) the motor fuel supply tank of an engine or a motor vehicle; or

(3) a tank car, railcar, trailer, truck or other equipment suitable for ground transportation;

J. "bulk user" means a person who maintains storage facilities for motor fuel and uses all or part of the stored motor fuel to operate a motor vehicle, vessel or aircraft and for other uses;

K. "dealer" means a person who sells motor fuel at retail or dispenses motor fuel at a retail location;

L. "department" means the taxation and revenue department, the secretary of taxation and revenue or any employee of the department exercising authority lawfully delegated to that employee by the secretary;

M. "distributor" means a person who makes sales of motor fuel at wholesale. A distributor's activities may also include sales of motor fuel at retail;

N. "dyed special fuel" means diesel fuel that is intended for off-highway use and meets the dyeing and marking requirements of Section 4082 of the Internal Revenue Code regardless of how diesel fuel is dyed;

O. "exporter" means a person that exports motor fuel from this state. The seller is the exporter of motor fuel delivered out of this state by or for the seller, and the purchaser is the exporter of motor fuel delivered out of this state by or for the purchaser;

P. "fuel supply tank" means a receptacle on a motor vehicle, non-highway equipment or stationary engine from which motor fuel is supplied for the operation of its engine;

Q. "gallon" means the quantity of liquid necessary to fill a standard United States gallon liquid measure or that same quantity adjusted to a temperature of sixty degrees Fahrenheit at the election of any distributor, but a distributor shall report on the same basis for a period of at least one year;

R. "gasoline" means any flammable liquid hydrocarbon used primarily as fuel for the propulsion of motor vehicles, motorboats or aircraft except for diesel engine fuel, kerosene, liquefied petroleum gas, compressed or liquefied natural gas and products specially prepared and sold for use in aircraft propelled by turbo-prop or jet-type engines;

S. "highway" means every road, highway, thoroughfare, street or way, including toll roads, generally open to the use of the public as a matter of right for the purpose of motor vehicle travel and notwithstanding that the same may be temporarily closed for the purpose of construction, reconstruction, maintenance or repair;

T. "importer" means a person that imports motor fuel into this state. A seller is the importer for motor fuel delivered into this state from outside of this state by or for the seller, and the purchaser is the importer for motor fuel delivered into this state from outside of this state by or for the purchaser;

U. "Internal Revenue Code" means the Internal Revenue Code of 1986, as that code may be amended or its sections renumbered;

V. "license holder" means a person licensed pursuant to the Motor Fuel Taxes Act;

W. "motor fuel" means gasoline or special fuel;

X. "motor fuel transporter" means a person who transports gasoline, diesel fuel, gasoline blended fuel, aviation fuel or any other motor fuel, except liquefied gas, compressed natural gas or liquefied natural gas outside the bulk transfer-terminal system. "Motor fuel transporter" does not include a person who:

(1) is licensed pursuant to the Motor Fuel Taxes Act as a supplier, permissive supplier or distributor; and

(2) exclusively transports gasoline, diesel fuel, gasoline blended fuel, aviation fuel or any other motor fuel to which the person retains ownership while the fuel is being transported by the person;

Y. "motor vehicle" means any self-propelled vehicle or device that is either subject to registration pursuant to Section 66-3-1 NMSA 1978 or is used or may be used on the public highways in whole or in part for the purpose of transporting persons or property and includes any connected trailer or semitrailer;

Z. "net gallons" means the amount of motor fuel measured in gallons when adjusted to a temperature of sixty degrees Fahrenheit and a pressure of fourteen and seven-tenths pounds per square inch;

AA. "permissive supplier" means a person who elects, but is not required, to have a supplier's license and who:

(1) is registered under Section 4101 of the Internal Revenue Code for transactions in motor fuel in the bulk transfer-terminal system; and

(2) is a position holder in motor fuel located only in another state or a person who receives motor fuel only in another state under a two-party exchange;

BB. "person" means an individual or any other entity, including, to the extent permitted by law, any federal, state or other government or any department, agency, instrumentality or political subdivision of any federal, state or other government;

CC. "position holder" means the person who holds the inventory position in motor fuel in a terminal, as reflected on the records of the terminal operator. A person holds the inventory position in motor fuel when that person has a contract with the terminal operator for the use of storage facilities and terminaling services for motor fuel at the terminal. "Position holder" includes a terminal operator who owns motor fuel in the terminal;

DD. "rack" means a mechanism for delivering motor fuel from a refinery, terminal or bulk plant into a transport vehicle, railroad tank car or other means of transfer that is outside the bulk transfer-terminal system;

EE. "refinery" means a facility for the manufacture or reprocessing of finished or unfinished petroleum products usable as motor fuel and from which motor fuel may be removed by pipeline or at a rack;

FF. "removal" means a physical transfer other than by evaporation, loss or destruction. A physical transfer to a transport vehicle or other means of conveyance outside the bulk transfer-terminal system is complete on delivery into the means of conveyance;

GG. "sale" means any delivery, exchange, gift or other disposition;

HH. "special fuel" means any diesel-engine fuel, biodiesel, blended biodiesel or kerosene used for the generation of power to propel a motor vehicle, except for gasoline, liquefied petroleum gas, compressed or liquefied natural gas and products specially prepared and sold for use in aircraft propelled by turbo-prop or jet-type engines;

II. "state" or "jurisdiction" means a state, territory or possession of the United States, the District of Columbia, the commonwealth of Puerto Rico, a foreign country or a state or province of a foreign country;

JJ. "supplier" means a person that:

(1) is subject to the general taxing jurisdiction of this state; and

(2) is registered under Section 4101 of the Internal Revenue Code, as that section may be amended or renumbered, for transactions in motor fuel in the bulk transfer-terminal distribution system, and is:

(a) a position holder in motor fuel in a terminal or refinery in this state and may concurrently also be a position holder in motor fuel in another state; or

(b) a person who receives motor fuel in this state under a two-party exchange; and

(c) may also be a terminal operator, provided that a terminal operator is not considered to also be a supplier based solely on the fact that the terminal operator handles motor fuel consigned to it within a terminal;

KK. "terminal" means a motor fuel storage and distribution facility to which a terminal control number has been assigned by the internal revenue service, to which motor fuel is supplied by pipeline and from which motor fuel may be removed at a rack;

LL. "terminal operator" means a person who owns, operates or otherwise controls a terminal; and

MM. "two-party exchange" means a transaction in which motor fuel is transferred from one licensed supplier or permissive supplier to another licensed supplier or permissive supplier under an exchange agreement, including a transfer from the person who holds the inventory position in taxable motor fuel in the terminal as reflected on the records of the terminal operator, and that is:

(1) completed before removal of the product from the terminal by the receiving exchange partner; and

(2) recorded on the terminal operator's books and records with the receiving exchange partner as the supplier that removes the motor fuel across the terminal rack for purposes of reporting the transaction to this state.

SECTION 3. [NEW MATERIAL] POINT OF IMPOSITION OF MOTOR FUELS TAXES.--

A. A tax is imposed on the removal of motor fuel from the terminal using the terminal rack other than by bulk transfer. The supplier or permissive supplier is liable for and shall collect the tax imposed by this section from the person who orders the withdrawal at the terminal rack.

B. A tax is imposed at the time motor fuel is imported into this state, other than by a bulk transfer, for delivery to a destination in this state. The supplier or permissive supplier is liable for and shall collect the tax imposed by this section from the person who imports the motor fuel into this state. If the seller is not a supplier or permissive supplier, the person who imports the motor fuel into this state is liable for and shall pay the tax.

C. A tax is imposed on the removal of motor fuel from the bulk transfer-terminal system in this state. The supplier is liable for and shall collect the tax imposed by this section from the person who orders the removal from the bulk transfer-terminal system.

D. A tax is imposed on the blending of motor fuel at the point blended motor fuel is made in this state outside the bulk transfer-terminal system. The blender is liable for and shall pay the tax. The number of gallons of blended motor fuel on which the tax is imposed is equal to the difference between the number of gallons of blended motor fuel made and the number of gallons of previously taxed motor fuel used to make the blended motor fuel.

E. The terminal operator in this state is considered a supplier for the purpose of the tax imposed under this section unless at the time of removal:

(1) the terminal operator has a terminal operator's license issued for the facility from which the motor fuel is withdrawn;

(2) the terminal operator verifies that the person who removes the motor fuel has a supplier's license; and

(3) the terminal operator does not have a reason to believe that the supplier's license is not valid.

F. In each subsequent sale of motor fuel on which the tax has been paid, the amount of the tax shall be added to the selling price so that the tax is paid ultimately by the person using or consuming the motor fuel. Motor fuel is considered to be used when it is delivered into a fuel supply tank.

SECTION 4. [NEW MATERIAL] TAX RATES--DENOMINATION AS "GASOLINE TAX" AND "SPECIAL FUEL EXCISE TAX".--

A. The tax rate on gasoline is twenty-two cents ($.22) for each net gallon or fractional part on which the tax is imposed pursuant to Section 3 of the Motor Fuel Taxes Act. The tax imposed on gasoline may be referred to as the "gasoline tax".

B. The tax rate on special fuels is twenty-six cents ($.26) for each net gallon or fractional part on which the tax is imposed pursuant to Section 3 of the Motor Fuel Taxes Act. The tax imposed on special fuel may be referred to as the "special fuel excise tax".

SECTION 5. [NEW MATERIAL] ADDITIONAL TAX APPLIES TO INVENTORIES.--

A. On the effective date of an increase in the rates of the taxes imposed by the Motor Fuel Taxes Act, a distributor or dealer that possesses, for the purpose of sale, two thousand or more gallons of gasoline or special fuel at each business location on which the taxes imposed at a previous rate have been paid shall report to the department the volume of that gasoline and special fuel and at the time of the report shall pay a tax on that gasoline and special fuel at a rate equal to the rate of the tax increase.

B. On the effective date of a reduction of the rates of taxes imposed by the Motor Fuel Taxes Act, a distributor or dealer that possesses, for the purpose of sale, two thousand or more gallons of gasoline or special fuel at each business location on which the taxes imposed at the previous rate have been paid becomes entitled to a refund in an amount equal to the difference in the amount of taxes paid on that gasoline or special fuel at the previous rate and at the rate in effect on the effective date of the reduction in the tax rates. The rules of the department shall provide for the method of claiming a refund pursuant to the Motor Fuel Taxes Act and may require that the refund for the dealer be paid through the distributor or supplier from whom the dealer received the motor fuel.

SECTION 6. [NEW MATERIAL] SEPARATE STATEMENT OF TAX COLLECTED FROM PURCHASER.--

A. In each subsequent sale of motor fuel on which tax has been paid, the tax imposed shall be collected from the purchaser so that the tax is paid ultimately by the person who uses the motor fuel. Motor fuel is considered to be used when it is delivered into a fuel supply tank.

B. The tax imposed shall be stated separately from the sale price of motor fuel and identified as gasoline tax or special fuel excise tax on the invoice or receipt issued to a purchaser. The tax shall be separately stated and identified in the same manner on a shipping document if the shipping document includes the sale price of the motor fuel.

C. Except as provided by Subsection D of this section, the sale price of motor fuel stated on an invoice, receipt or shipping document is presumed to be exclusive of the tax imposed by the Motor Fuel Taxes Act. The seller or purchaser may overcome the presumption by using the seller's records to show that the tax was included in the sale price.

D. Subsection B of this section does not apply to a sale of motor fuel by a licensed dealer to a person who delivers the motor fuel at the dealer's place of business into a fuel supply tank or into a container having a capacity of not more than ten gallons.

SECTION 7. [NEW MATERIAL] TRANSACTIONS NOT SUBJECT TO TAX.--

A. The taxes imposed by the Motor Fuel Taxes Act do not apply to:

(1) motor fuel sold to the United States or any agency or instrumentality thereof for the exclusive use of, and not the resale by, the United States or any agency or instrumentality thereof. Motor fuel sold to the United States includes motor fuel delivered into the supply tank of a government-licensed vehicle;

(2) motor fuel sold to the state of New Mexico or any political subdivision, agency or instrumentality thereof for the exclusive use of, and not the resale by, the state of New Mexico or any political subdivision, agency or instrumentality thereof. Motor fuel sold to the state of New Mexico includes motor fuel delivered into the supply tank of a government-licensed vehicle;

(3) motor fuel sold to an Indian nation, tribe or pueblo or any agency or instrumentality thereof for the exclusive use of, and not the resale by, the Indian nation, tribe or pueblo or any agency or instrumentality thereof. Motor fuel sold to an Indian nation, tribe or pueblo includes motor fuel delivered into the supply tank of a government-licensed vehicle;

(4) twenty percent of motor fuel sold by a retail station within the sovereign territory of an Indian nation, tribe or pueblo, less the amount exempted pursuant to Paragraph (3) of this subsection;

(5) motor fuel for which proof of export is available in the form of a terminal-issued destination state shipping paper or bill of lading and that is either:

(a) exported by a supplier who is licensed in the destination state; or

(b) sold by a supplier to a distributor for immediate export;

(6) motor fuel moved by truck or railcar between licensed suppliers or licensed permissive suppliers and in which the motor fuel removed from the first terminal comes to rest in the second terminal, provided that the removal from the second terminal rack is subject to tax imposed by the Motor Fuel Taxes Act;

(7) motor fuel exported to a foreign country if the bill of lading indicates the foreign destination and the motor fuel is actually exported to the foreign country;

(8) dyed special fuel sold or delivered by a supplier to another supplier and dyed special fuel sold or delivered by a supplier or distributor into the bulk storage facility of a dyed special fuel bonded user or to a purchaser who provides a signed statement as provided by Section 9 of the Motor Fuel Taxes Act;

(9) dyed special fuel sold by a supplier or permissive supplier to a distributor or by a distributor to another distributor; and

(10) dyed special fuel delivered by a license holder into the fuel supply tanks of railway engines, motorboats or refrigeration units or other stationary equipment powered by a separate motor from a separate fuel supply tank.

B. Paragraph (5) of Subsection A of this section does not apply to motor fuel that is transported and delivered outside this state in the motor fuel supply tank of a motor vehicle.

C. If an exporter described by Subparagraph (b) of Paragraph (5) of Subsection A of this section does not have an exporter's license, the supplier shall collect the tax imposed by the Motor Fuel Taxes Act.

D. Subparagraph (b) of Paragraph (5) of Subsection A of this section does not apply to a sale by a distributor.

SECTION 8. [NEW MATERIAL] PERSONS REQUIRED TO BE LICENSED.--

A. A person shall obtain the appropriate license issued by the department before conducting the activities of:

(1) a supplier, who may also act as a distributor, importer, exporter, blender or motor fuel transporter without securing a separate license, but who is subject to all other conditions, requirements and liabilities imposed on those license holders;

(2) a permissive supplier, who may also act as a distributor, importer, exporter, blender or motor fuel transporter without securing a separate license, but who is subject to all other conditions, requirements and liabilities imposed on those license holders;

(3) a distributor, who may also act as an importer, exporter, blender or motor fuel transporter without securing a separate license, but who is subject to all other conditions, requirements and liabilities imposed on those license holders;

(4) an importer, who may also act as an exporter, blender or motor fuel transporter without securing a separate license, but who is subject to all other conditions, requirements and liabilities imposed on those license holders;

(5) a terminal operator;

(6) an exporter;

(7) a blender;

(8) a motor fuel transporter; and

(9) a dyed special fuel bonded user.

B. A person shall obtain a license as a dyed special fuel bonded user to purchase dyed special fuel in amounts that exceed the limitations prescribed by Subsection C of Section 9 of the Motor Fuel Taxes Act. The requirements of this subsection do not affect the right of a purchaser to purchase not more than the number of gallons of dyed special fuel prescribed by Subsection C of Section 9 of the Motor Fuel Taxes Act each month for the purchaser's own use using a signed statement.

SECTION 9. [NEW MATERIAL] STATEMENT OF PURCHASE OF DYED SPECIAL FUEL.--

A. The first removal of motor fuel from a terminal in this state is taxable, except the sale of dyed special fuel may be made without collecting the tax if the purchaser furnishes to a licensed supplier or distributor a signed statement that includes an end user number issued by the department. A person who wants to use a signed statement to purchase dyed special fuel shall apply to the department for an end user number to be used in conjunction with a signed statement. A licensed supplier or distributor shall not make a tax-exempt sale of any special fuel to a purchaser using a signed statement unless the purchaser has an end user number issued by the department pursuant to this section. A taxable sale or removal of dyed special fuel shall not be made except as prescribed by Subsection E of this section.

B. A sale of dyed special fuel may be made without collecting the special fuel excise tax if the purchaser furnishes to a licensed supplier or distributor a signed statement, including an end user number issued by the department, that stipulates that:

(1) all of the dyed special fuel purchased on the signed statement will be consumed by the purchaser and will not be resold; and

(2) none of the dyed special fuel purchased on the signed statement will be delivered or permitted to be delivered into the fuel supply tank of a motor vehicle operated on the public highways of this state.

C. A person shall not make a tax-exempt purchase and a licensed supplier or distributor shall not make a tax-exempt sale to a purchaser of any dyed special fuel pursuant to this section using a signed statement for the first sale or purchase and for any subsequent sale or purchase in a calendar month for more than ten thousand gallons of dyed special fuel.

D. The limitations provided in Subsection C of this section apply regardless of whether the dyed special fuel is purchased in a single transaction during that month or in multiple transactions during that month.

E. Any gallons purchased or sold in excess of the limitations prescribed by Subsection C of this section constitute a taxable purchase or sale. A purchaser that exceeds the limitations provided in Subsection C of this section shall be required to obtain a dyed special fuel bonded user license.

F. The signed statement and end user number from the purchaser relieves the licensed supplier or distributor from the burden of proof that the sale of dyed special fuel for a non-highway purpose was not taxable to the purchaser and remains in effect unless:

(1) the statement is revoked in writing by the purchaser or licensed supplier or distributor;

(2) the department notifies the licensed supplier or distributor in writing that the purchaser may no longer make tax-exempt purchases; or

(3) the licensed supplier or distributor is put on notice by making taxable sales of dyed special fuel to a purchaser who has previously furnished a signed statement to the licensed supplier or distributor.

G. For purposes of Paragraph (3) of Subsection F of this section, a licensed supplier or distributor is not put on notice when taxable sales of dyed special fuel are made in accordance with Subsection E of this section.

H. The statement shall be signed by the purchaser or the purchaser's representative.

I. For purposes of this section, the purchaser is considered to have temporarily furnished the signed statement to the licensed supplier or distributor if the supplier or distributor verifies that the purchaser has an end user number issued by the department. The licensed supplier or distributor shall use the department's website or other materials provided or produced by the department to verify this information until the purchaser provides to the supplier or distributor a completed signed statement.

J. The department, by rule, may allow separate operating divisions of a corporation to give separate signed statements as if the divisions were different legal entities.

K. The department may adopt necessary forms and rules to administer and enforce this section.

L. A taxable use of any part of dyed special fuel purchased under a signed statement shall, in addition to application of any criminal penalty, forfeit the right of the person to purchase tax-exempt dyed special fuel for a period of one year from the date of the offense. Any tax, interest and penalty found to be due through false or erroneous execution or continuance of a promissory statement by the purchaser, if assessed to the licensed supplier or distributor, is a debt of the purchaser to the licensed supplier or distributor until paid and is recoverable at law in the same manner as the purchase price of the fuel.

M. Properly completed signed statements shall be in the possession of the licensed supplier or distributor at the time the sale of dyed special fuel occurs. If the licensed supplier or distributor is not in possession of the signed statements within sixty days after the date written notice requiring possession of them is given to the licensed supplier or distributor by the department, exempt sales claimed by the licensed supplier or distributor that require delivery of the signed statements shall be disallowed. If the licensed supplier or distributor delivers the signed statements to the department within the sixty-day period, the department may verify the reason or basis for the signed statements before allowing the exempt sales. An exempt sale shall not be granted on the basis of signed statements delivered to the department after the sixty-day period.

N. On receipt of notice transmitted by an electronic means of a final judgment entered by a court against a purchaser of dyed special fuel for failure to pay an amount owed to a licensed supplier or distributor for the purchase of dyed special fuel, the department shall revoke the end user number issued to the purchaser. The department shall provide the notice described by Paragraph (2) of Subsection F of this section to the licensed supplier or distributor if the purchaser's end user number is revoked.

O. The department may reinstate an end user number that is revoked pursuant to Subsection N of this section on receipt of proof transmitted by an electronic means and satisfactory to the department that the purchaser whose end user number was revoked has satisfied the judgment described by Subsection N of this section, including all costs and other amounts awarded in the judgment.

SECTION 10. [NEW MATERIAL] PERMISSIVE SUPPLIER REQUIREMENTS ON OUT-OF-STATE REMOVAL.--

A. A person may obtain a permissive supplier license to collect the taxes imposed by the Motor Fuel Taxes Act for motor fuel that is removed at a terminal in another state and has this state as the destination state.

B. With respect to motor fuel that is removed by the licensed permissive supplier at a terminal located in another state and that has this state as the destination state, a licensed permissive supplier shall:

(1) collect the tax due to this state on the motor fuel;

(2) waive any defense that this state lacks jurisdiction to require the supplier to collect the tax due to this state on the motor fuel pursuant to the Motor Fuel Taxes Act;

(3) report and pay the taxes due on the motor fuel in the same manner as if the removal had occurred at a terminal located in this state;

(4) keep records of the removal of the motor fuel and submit to audits concerning the motor fuel as if the removal had occurred at a terminal located in this state; and

(5) report sales by the permissive supplier to a person who is not licensed in this state.

C. A permissive supplier shall acknowledge in the supplier's license application that this state imposes the requirements listed in Subsection B of this section under this state's general police power and that the permissive supplier submits to the jurisdiction of this state only for purposes related to the administration of the Motor Fuel Taxes Act.

SECTION 11. [NEW MATERIAL] LICENSE APPLICATION PROCEDURE.--

A. To obtain a license required by the Motor Fuel Taxes Act, an applicant shall file an application using a form adopted by the department. The application shall contain:

(1) the name under which the applicant transacts or intends to transact business;

(2) the applicant's principal office, residence, place of business in this state or other location of the applicant;

(3) if the applicant is not an individual, the names of the principal officers of an applicant corporation, or the names of the members of an applicant partnership, and the office, street or post office addresses of each; and

(4) other information that may be required by the department.

B. An applicant for a license as a supplier, permissive supplier or terminal operator shall have a federal certificate of registry issued pursuant to Section 4101 of the Internal Revenue Code that authorizes the applicant to enter into federal tax-exempt transactions of motor fuel in the bulk terminal-transfer system. An applicant that is required to have a federal certificate of registry shall include the registration number of the certificate on the application for a license. An applicant for a license as an importer, exporter or distributor who has a federal certificate of registry issued pursuant to Section 4101 of the Internal Revenue Code shall include the registration number of the certificate on the application for a license.

C. An applicant for a license as an importer or distributor shall list on the application each state from which the applicant intends to import motor fuel and, if required by a listed state, shall be licensed or registered for purposes of taxing motor fuel in that state. If a listed state requires the applicant to be licensed or registered, the applicant shall provide the applicant's license or registration number from that state.

D. An applicant for a license as an exporter shall designate an agent located in this state for service of process and provide the agent's name and address. An applicant for a license as an exporter or distributor shall list on the application each state to which the applicant intends to export motor fuel received in this state by means of a transfer that is outside the bulk terminal-transfer system and shall be licensed or registered for purposes of taxing motor fuel in that state. The applicant shall provide the applicant's license or registration number from that state.

E. An applicant for a license as a motor fuel transporter shall list on the application each state from which and to which the applicant intends to transport motor fuel and, if required by a listed state, shall be licensed or registered for purposes of taxing motor fuel in that state. If a listed state requires the applicant to be licensed or registered, the applicant shall provide the applicant's license or registration number from that state.

SECTION 12. [NEW MATERIAL] ISSUANCE AND DISPLAY OF LICENSE.--If the department approves a license application, the department shall issue a license to the applicant. A license shall be posted in a conspicuous place or kept available for inspection at the principal place of business of the license holder. A copy of the license shall be kept at each place of business or other place of storage from which motor fuel is sold, distributed or used and in each motor vehicle used by the license holder to transport motor fuel purchased by the license holder for resale, distribution or use.

SECTION 13. [NEW MATERIAL] LICENSES--PERIODS OF VALIDITY.--

A. A license issued to a supplier, permissive supplier, distributor, importer, terminal supplier, exporter, blender, motor fuel transporter or dyed special fuel bonded user is permanent and is valid during the period the license holder has in force and effect the required bond or security and furnishes timely reports and supplements as required, or until the license is surrendered by the holder or canceled by the department. The department shall cancel a license if a purchase, sale or use of motor fuel has not been reported by the license holder during the previous nine months.

B. A license issued pursuant to this section is not transferable.

SECTION 14. [NEW MATERIAL] BOND AND OTHER SECURITY FOR TAXES.--

A. The department shall determine the amount of security required of a supplier, permissive supplier, distributor, exporter, importer, blender or dyed special fuel bonded user, taking into consideration the amount of tax that has or is expected to become due from the person, any past history of the person as a license holder and its predecessor and the necessity to protect this state against the failure to pay the tax as the tax becomes due.

B. If it is determined that the posting of security is necessary to protect this state, the department may require a license holder to post a bond. A license holder shall post a bond equal to two times the maximum amount of tax that could accrue on tax-exempt motor fuel purchased or acquired during a reporting period. The minimum bond is one thousand dollars ($1,000).

C. A license holder who has filed a bond or other security pursuant to this section is entitled, on request, to have the department return, refund or release the bond or security if in the judgment of the department the person has for four consecutive years continuously complied with the conditions of the bond or other security filed pursuant to this section. However, if the department determines that the revenues of this state would be jeopardized by the return, refund or release of the bond or security, the department may elect not to return, refund or release the bond or security and may reimpose a requirement of a bond or other security as the department determines necessary to protect the revenues of this state.

D. A bond shall be a continuing instrument, shall constitute a new and separate obligation in the penal sum named in the bond for each calendar year or portion of a year while the bond is in force and shall remain in effect until the surety on the bond is released and discharged.

E. Instead of filing a surety bond, an applicant for a license may substitute the following security:

(1) cash in the form of United States currency in an amount equal to the required bond to be deposited in a suspense account of the state treasury;

(2) an assignment to the department of a certificate of deposit in any bank or savings and loan association in this state that is a member of the federal deposit insurance corporation in an amount at least equal to the bond amount required; or

(3) an irrevocable letter of credit to the department from any bank or savings and loan association in this state that is a member of the federal deposit insurance corporation in an amount of credit at least equal to the bond amount required.

F. If the amount of an existing bond becomes insufficient or a security becomes unsatisfactory or unacceptable, the department may require the filing of a new or additional bond or security.

G. A surety bond or other form of security shall not be released until it is determined by examination or audit that a tax, penalty or interest liability does not exist. The cash or securities shall be released within sixty days after the department determines that liability does not exist.

H. The department may use the cash or certificate of deposit security to satisfy a final determination of delinquent liability or a judgment secured in any action by this state to recover taxes, costs, penalties and interest found to be due to this state by a person in whose behalf the cash or certificate security was deposited.

I. A surety on a bond furnished by a license holder shall be released and discharged from liability to this state accruing on the bond on the thirty-first day after the date the surety files with the department a written request to be released and discharged. The request does not relieve, release or discharge the surety from a liability already accrued, or that accrues before the expiration of the thirty-day period. The department, promptly on receipt of the request, shall notify the license holder who furnished the bond, and unless the license holder, before the expiration date of the existing security, files with the department a new bond with a surety company duly authorized to do business under the laws of this state, or other authorized security, in the amount required in this section, the department shall cancel the license pursuant to the Motor Fuel Taxes Act.

J. The department shall immediately notify the issuer of a letter of credit of a final determination of the license holder's delinquent liability or a judgment secured in any action by this state to recover taxes, costs, penalties and interest found to be due this state by a license holder in whose behalf the letter of credit was issued. The letter of credit allowed as security for the remittance of taxes pursuant to the Motor Fuel Taxes Act shall contain a statement that the issuer agrees to respond to the department's notice of liability with amounts to satisfy the department's delinquency claim against the license holder.

K. A license holder may request an examination or audit to obtain release of the security when the license holder relinquishes the license or when the license holder wants to substitute one form of security for an existing one.

SECTION 15. [NEW MATERIAL] REMITTANCE OF TAX TO SUPPLIER OR PERMISSIVE SUPPLIER.--

A. Each licensed distributor and licensed importer shall remit to the supplier or permissive supplier, as applicable, the taxes imposed pursuant to Section 3 of the Motor Fuel Taxes Act for motor fuel removed at a terminal rack. A licensed distributor or licensed importer may elect to defer payment of the tax to the supplier or permissive supplier until two days before the date the supplier or permissive supplier is required to remit the tax to this state. The distributor or importer shall pay the taxes by electronic funds transfer.

B. A supplier, a permissive supplier or its representative that conducts electronic transactions to draft an account of a licensed distributor or licensed importer for the payment of taxes due pursuant to the Motor Fuel Taxes Act shall provide at least two days' notice using an electronic means of the amount to be drafted from the account of the licensed distributor or licensed importer and the number of the account to be drafted from.

C. If the supplier or permissive supplier cannot secure from the licensed distributor or licensed importer payment of taxes due for motor fuel removed from the terminal during the previous reporting period and the supplier elects to take a credit against a subsequent payment of tax on motor fuel to this state for the taxes not remitted to the supplier or permissive supplier by the licensed distributor or licensed importer, the supplier or permissive supplier shall notify the department of the licensed distributor's or licensed importer's failure to remit tax in conjunction with the report requesting a credit.

D. The supplier or permissive supplier, after requesting a credit under this section, shall terminate the ability of the licensed distributor or licensed importer to defer the payment of the tax. The supplier or permissive supplier shall not reinstate the right of the licensed distributor or licensed importer to defer the payment of the tax until the first anniversary of the date the supplier or permissive supplier requested the credit, subject to Subsection E of this section.

E. A supplier or permissive supplier may reinstate the right of a licensed distributor or licensed importer to defer the payment of the tax before the date prescribed by Subsection D of this section if the department determines that:

(1) the supplier or permissive supplier erroneously requested the credit that resulted in the termination of the licensed distributor's or licensed importer's right to defer payment; or

(2) the licensed distributor or licensed importer failed to pay the amount of tax due because of circumstances that may have been outside the distributor's or importer's control.

F. A licensed distributor or licensed importer that makes timely payments of the taxes imposed pursuant to the Motor Fuel Taxes Act is entitled to retain an amount equal to one and seventy-five thousandths percent of the total taxes to be paid to the supplier or permissive supplier to cover administrative expenses.

G. The license of a distributor, exporter or importer who fails to pay the full amount of tax due is subject to cancellation as provided by Section 36 of the Motor Fuel Taxes Act.

SECTION 16. [NEW MATERIAL] RETURNS AND PAYMENT.--

A. Except as provided by Subsection B of this section, each person who is liable for the tax imposed by the Motor Fuel Taxes Act, a terminal operator and a licensed distributor shall file a return on or before the twenty-fifth day of the month following the end of each calendar month.

B. A motor fuel transporter and dyed special fuel bonded user shall file a return on or before the twenty-fifth day of the month following the end of the calendar quarter.

C. The return required by this section shall be accompanied by a payment for the amount of tax reported due.

SECTION 17. [NEW MATERIAL] RECORDS.--

A. A supplier and permissive supplier shall keep:

(1) a record including the number of gallons of:

(a) all motor fuel inventories on hand at the first of each month;

(b) all motor fuel refined, compounded or blended;

(d) all motor fuel sold, distributed or used, including the name of the purchaser and the date of the sale, distribution or use; and

(e) all motor fuel lost by fire, theft or accident; and

(2) an itemized statement including by load the number of gallons of all motor fuel:

(a) received during the preceding calendar month for export and the location of the loading;

(b) exported from this state by destination state or country; and

B. A distributor shall keep:

(1) a record including the number of gallons of:

(a) all motor fuel inventories on hand at the first of each month;

(b) all motor fuel blended;

(d) all motor fuel sold, distributed or used, including the name of the purchaser and the date of the sale, distribution or use; and

(e) all motor fuel lost by fire, theft or accident;

(2) an itemized statement including by load the number of gallons of all motor fuel:

(a) received during the preceding calendar month for export and the location of the loading;

(b) exported from this state by destination state or country; and

(3) for motor fuel exported outside this state, proof of payment of tax to the destination state, in a form acceptable to the department.

C. An importer shall keep:

(1) a record including the number of gallons of:

(a) all motor fuel inventories on hand at the first of each month;

(b) all motor fuel compounded or blended;

(d) all motor fuel sold, distributed or used, including the name of the purchaser and the date of the sale, distribution or use; and

(e) all motor fuel lost by fire, theft or accident; and

(2) an itemized statement including by load the number of gallons of all motor fuel:

(a) received during the preceding calendar month for export and the location of the loading;

(b) exported from this state, by destination state or country; and

D. An exporter shall keep:

(1) a record including the number of gallons of:

(a) all motor fuel inventories on hand at the first of each month;

(b) all motor fuel compounded or blended;

(d) all motor fuel sold, distributed or used, including the name of the purchaser and the date of the sale or use; and

(e) all motor fuel lost by fire, theft or accident;

(2) an itemized statement including by load the number of gallons of all motor fuel:

(a) received during the preceding calendar month for export and the location of the loading; and

(b) exported from this state, by destination state or country;

(3) proof of payment of tax to the destination state in a form acceptable to the department; and

(4) if an exemption pursuant to Subparagraph (b) of Paragraph (5) of Subsection A of Section 7 of the Motor Fuel Taxes Act is claimed, proof of payment of tax to the destination state or proof that the transaction was exempt in the destination state, in a form acceptable to the department.

E. A blender shall keep a record including the number of gallons of:

(1) all motor fuel inventories on hand at the first of each month;

(2) all motor fuel compounded or blended;

(3) all motor fuel purchased or received, including the name of the seller and the date of each purchase or receipt;

(4) all motor fuel sold, distributed or used, including the name of the purchaser and the date of the sale, distribution or use; and

(5) all motor fuel lost by fire, theft or accident.

F. A terminal operator shall keep:

(1) a record including the number of gallons of:

(a) all motor fuel inventories on hand at the first of each month, including the name and license number of each owner and the amount of motor fuel held for each owner;

(b) all motor fuel received, including the name of the seller and the date of each purchase or receipt;

(c) all motor fuel sold, distributed or used, including the name of the purchaser and the date of the sale, distribution or use; and

(d) all motor fuel lost by fire, theft or accident; and

(2) an itemized statement including by load the number of gallons of all motor fuel:

(a) received during the preceding calendar month for export and the location of the loading;

(b) exported from this state, by destination state or country; and

G. A motor fuel transporter shall keep a complete and separate record of each intrastate and interstate transportation of motor fuel, including:

(1) the date of transportation;

(2) the name of the consignor and consignee;

(3) the method of transportation;

(4) the quantity and kind of motor fuel transported;

(5) full data concerning the diversion of shipments, including the number of gallons diverted from interstate to intrastate and intrastate to interstate commerce; and

(6) the points of origin and destination, the number of gallons shipped or transported, the date, the consignee and the consignor, and the kind of motor fuel that has been diverted.

H. A dealer shall keep a record including the number of gallons of:

(1) motor fuel inventories on hand at the first of each month;

(2) all motor fuel purchased or received, including the name of the seller and the date of each purchase or receipt;

(3) all motor fuel sold or used, including the date of the sale or use; and

(4) all motor fuel lost by fire, theft or accident.

I. A dyed special fuel bonded user shall keep a record including the number of gallons of:

(1) dyed and undyed special fuel inventories on hand at the first of each month;

(2) dyed and undyed special fuel purchased or received, including the name of the seller and the date of each purchase or receipt;

(3) dyed and undyed special fuel delivered into the fuel supply tanks of motor vehicles;

(4) dyed and undyed special fuel used in off-highway equipment or for other non-highway purposes; and

(5) dyed and undyed special fuel lost by fire, theft or accident.

J. The department may require selective schedules from a supplier, permissive supplier, distributor, importer, exporter, blender, terminal operator, motor fuel transporter, dealer and dyed special fuel bonded user for any purchase, sale or delivery of special fuel if the schedules are not inconsistent with the requirements of this section.

K. The records required by this section shall be kept until the fourth anniversary of the date they are created and are open to inspection at all times by the department and the attorney general.

L. In addition to the records specifically required by this section, a license holder, dealer or person required to hold a license shall keep any other record required by the department.

SECTION 18. [NEW MATERIAL] INFORMATION REQUIRED ON SUPPLIER'S AND PERMISSIVE SUPPLIER'S RETURN--CREDITS.--

A. The monthly return and supplements of each supplier and permissive supplier shall contain for the period covered by the return:

(1) the number of net gallons of motor fuel received by the supplier or permissive supplier during the month, sorted by product code, seller, point of origin, destination state, carrier and receipt date;

(2) the number of net gallons of motor fuel removed at a terminal rack during the month from the account of the supplier, sorted by product code, person receiving the diesel fuel, terminal code and carrier;

(3) the number of net gallons of motor fuel removed during the month for export, sorted by product code, person receiving the diesel fuel, terminal code, destination state and carrier;

(4) the number of net gallons of motor fuel removed during the month from a terminal located in another state for conveyance to this state, as indicated on the shipping document for the diesel fuel, sorted by product code, person receiving the diesel fuel, terminal code and carrier;

(5) the number of net gallons of motor fuel the supplier or permissive supplier sold during the month in transactions exempt pursuant to Section 7 of the Motor Fuel Taxes Act, sorted by product code, carrier, purchaser and terminal code;

(6) the number of net gallons of motor fuel sold in the bulk transfer-terminal system in this state to any person not holding a supplier's or permissive supplier's license; and

(7) any other information as required by the department.

B. A supplier or permissive supplier may take a credit for any taxes that were not remitted in a previous period to the supplier or permissive supplier by a licensed, distributor or licensed importer as required by Section 15 of the Motor Fuel Taxes Act. The supplier or permissive supplier is eligible to take this credit if the department is notified of the default within fifteen days after the default occurs. If a license holder pays to a supplier or permissive supplier the tax owed, but the payment occurs after the supplier or permissive supplier has taken a credit on its return, the supplier or permissive supplier shall remit the payment to the department with the next monthly return after receipt of the tax, plus a penalty of ten percent of the amount of unpaid taxes and interest at the rate provided by Section 7-1-69 NMSA 1978 beginning on the date the credit is taken.

SECTION 19. [NEW MATERIAL] DUTIES OF SELLER OF MOTOR FUEL.--

A. A seller who receives or collects tax holds the amount received or collected in trust for the benefit of this state and has a fiduciary duty to remit to the department the amount of tax received or collected.

B. A seller shall furnish the purchaser with an invoice, bill of lading or other documentation as evidence of the number of gallons received by the purchaser.

C. A seller who receives a payment of tax shall not apply the payment of tax to a debt that the person making the payment owes for motor fuel purchased from the seller.

D. A person required to receive or collect a tax pursuant to the Motor Fuel Taxes Act is liable for and shall pay the tax in the manner provided by that act.

SECTION 20. [NEW MATERIAL] INFORMATION REQUIRED ON DISTRIBUTOR'S RETURN.--The monthly return and supplements of each distributor shall contain for the period covered by the return:

A. the number of net gallons of motor fuel received by the distributor during the month, sorted by product code, seller, point of origin, destination state, carrier and receipt date;

B. the number of net gallons of motor fuel removed at a terminal rack by the distributor during the month, sorted by product code, seller, terminal code and carrier;

C. the number of net gallons of motor fuel removed by the distributor during the month for export, sorted by product code, terminal code, bulk plant address, destination state and carrier;

D. the number of net gallons of motor fuel removed by the distributor during the month from a terminal located in another state for conveyance to this state, as indicated on the shipping document for the motor fuel, sorted by product code, seller, terminal code, bulk plant address and carrier;

E. the number of net gallons of motor fuel the distributor sold during the month in transactions exempt pursuant to Section 7 of the Motor Fuel Taxes Act, dyed special fuel sold to a purchaser under a signed statement or dyed special fuel sold to a dyed special fuel bonded user, sorted by product code and by the entity receiving the fuel; and

F. any other information as required by the department.

SECTION 21. [NEW MATERIAL] INFORMATION REQUIRED ON IMPORTER'S RETURNS.--The monthly return and supplements of an importer shall contain for the period covered by the return:

A. the number of net gallons of imported motor fuel acquired from a supplier or permissive supplier who collected the tax due this state on the motor fuel;

B. the number of net gallons of imported motor fuel acquired from a person who did not collect the tax due to this state on the motor fuel, listed by product code, source state, person and terminal;

C. the number of net gallons of imported motor fuel acquired from a bulk plant outside this state, listed by bulk plant name, address and product code; and

D. any other information as required by the department.

SECTION 22. [NEW MATERIAL] INFORMATION REQUIRED ON TERMINAL OPERATOR'S RETURN.--

A. A terminal operator shall file with the department a monthly information return and supplement showing the amount of motor fuel received and removed from the terminal during the month. The return also shall contain the following summary information:

(1) the beginning and ending inventory that relates to the applicable reporting month;

(2) the number of net gallons of motor fuel received in inventory at the terminal during the month;

(3) the number of net gallons of motor fuel removed from inventory at the terminal during the month; and

(4) any other summary information as required by the department.

B. The department may accept a terminal operator report provided to and accepted by the internal revenue service instead of the required state terminal operator report.

SECTION 23. [NEW MATERIAL] INFORMATION REQUIRED ON MOTOR FUEL TRANSPORTER'S RETURN.--The quarterly return and supplements of a motor fuel transporter shall contain for the period covered by the return:

A. the name, license number and terminal control number of each person or terminal from whom the transporter received motor fuel outside this state for delivery in this state, the gross gallons of motor fuel received, the date the motor fuel was received, the product code and the name and license number of the purchaser of the motor fuel;

B. the name, license number and terminal control number of each person or terminal from whom the transporter received motor fuel in this state for delivery outside this state, the gross gallons of motor fuel delivered, the date the motor fuel was delivered, the product code and the destination state of the motor fuel; and

C. any other information as required by the department.

SECTION 24. [NEW MATERIAL] INFORMATION REQUIRED ON EXPORTER'S RETURN AND PAYMENT OF TAX ON IMPORTS.--The monthly return and supplements of an exporter shall contain for the period covered by the return:

A. the number of net gallons of motor fuel acquired from a supplier and exported during the month, including supplier name, terminal control number and product code;

B. the number of net gallons of motor fuel acquired from a bulk plant and exported during the month, including bulk plant name and product code;

C. the number of net gallons of motor fuel acquired from a source other than a supplier or bulk plant and exported during the month, including the name of the source from which the motor fuel was acquired and the name and address of the person receiving the motor fuel;

D. the destination state of the motor fuel exported during the month; and

E. any other information as required by the department.

SECTION 25. [NEW MATERIAL] INFORMATION REQUIRED ON BLENDER'S RETURN.--The monthly return and supplements of each blender shall contain for the period covered by the return:

A. the number of net gallons of motor fuel received by the blender during the month, sorted by product code, seller, point of origin, carrier and receipt date;

B. the number of net gallons of product blended with motor fuel during the month, sorted by product code, type of blending agent if no product code exists, seller and carrier;

C. the number of net gallons of blended motor fuel sold during the month and the license number or name and address of the entity receiving the blended motor fuel; and

D. any other information as required by the department.

SECTION 26. [NEW MATERIAL] INFORMATION REQUIRED ON DYED SPECIAL FUEL BONDED USER'S RETURN.--The quarterly return and supplements of each dyed special fuel bonded user shall contain for the period covered by the return:

A. the number of net gallons of tax-exempt dyed special fuel received by the dyed special fuel bonded user during the quarter, sorted by product code and receipt date;

B. the number of net gallons of dyed special fuel used by the dyed special fuel bonded user during the quarter, sorted by product code; and

C. any other information as required by the department.

SECTION 27. [NEW MATERIAL] REFUND OR CREDIT FOR CERTAIN TAXES PAID.--

A. A license holder may take a credit on a return for the period in which the sale occurred if the license holder paid tax on the purchase of motor fuel and subsequently resells the motor fuel without collecting the tax to:

(1) the United States or any agency or instrumentality thereof for the exclusive use of the United States or any agency or instrumentality thereof;

(2) the state of New Mexico or any political subdivision, agency or instrumentality thereof for the exclusive use of the state of New Mexico or any political subdivision, agency or instrumentality thereof;

(3) an Indian nation, tribe or pueblo or any agency or instrumentality thereof for the exclusive use of the Indian nation, tribe or pueblo or any agency or instrumentality thereof; or

(4) an exporter licensed pursuant to the Motor Fuel Taxes Act if the seller is a licensed supplier or distributor and the exporter subsequently exports the motor fuel to another state.

B. For truck or railcar movements between licensed suppliers or licensed permissive suppliers in which the motor fuel removed from the first terminal comes to rest in the second terminal and tax was paid on the first removal, the license holder that receives the motor fuel in the second terminal may take the credit.

C. A license holder may take a credit on a return for the period in which the purchase occurred, and a person that does not hold a license pursuant to the Motor Fuel Taxes Act may file a refund claim with the department if the license holder or person paid tax on motor fuel and the license holder or person:

(1) is the United States government and the motor fuel is for its exclusive use; provided that a credit or refund is not allowed for motor fuel used by a license holder or person operating under a contract with the United States;

(2) an Indian nation, tribe or pueblo for the exclusive use of the Indian nation, tribe or pueblo; provided that the resale occurred within the sovereign territory of the Indian nation, tribe or pueblo; or

(3) a member of an Indian nation, tribe or pueblo for the exclusive use by that member; provided that the resale occurred within the sovereign territory of the Indian nation, tribe or pueblo.

D. A person that paid tax on the purchase of motor fuel may claim a credit or seek a refund with the department if one hundred or more gallons of motor fuel is subsequently exported or lost by fire, theft or accident. A credit or refund claimed pursuant to this subsection shall be taken or filed within the limitations period provided by Section 30 of the Motor Fuel Taxes Act.

E. The right to receive a refund or take a credit pursuant to this section is not assignable.

F. The department may adopt rules specifying procedures and requirements that shall be followed to claim a credit or refund under this section.

G. A license holder may take a credit on a return for the tax included in the retail purchase price of motor fuel for the period in which the purchase occurred when made by one of the following purchasers; provided that the purchase was made by acceptance of a credit card not issued by the license holder, the credit card issuer did not collect the tax from the purchaser and the license holder reimbursed the credit card issuer for the amount of tax included in the retail purchase price:

(1) the United States government for its exclusive use;

(3) a member of an Indian nation, tribe or pueblo for the exclusive use by that member; provided that the resale occurred within the sovereign territory of the Indian nation, tribe or pueblo.

SECTION 28. [NEW MATERIAL] REFUND FOR BAD DEBTS--CREDIT FOR NONPAYMENT.--

A. A licensed distributor may file a refund claim with the department if:

(1) the distributor has paid the taxes imposed by the Motor Fuel Taxes Act on motor fuel sold on account;

(2) the distributor determines that the account is uncollectible and worthless; and

(3) the account is written off as a bad debt on the accounting books of the distributor.

B. A licensed supplier or permissive supplier may take a credit on the monthly report to be filed with the department if:

(1) on a previous report, the supplier or permissive supplier paid the taxes imposed by the Motor Fuel Taxes Act on motor fuel sold on account;

(2) the person to whom the supplier or permissive supplier sold the motor fuel has not remitted the tax to the supplier or permissive supplier; and

(3) at the time of the transaction, the person to whom the supplier or permissive supplier sold the motor fuel held a license issued by the department.

C. The return on which the refund is claimed or the credit is taken shall state, if applicable, the license number of the person whose account has been written off as a bad debt, or who failed to remit the tax, and any other information required by the department. The amount of the refund or credit that may be claimed under Subsection A or B of this section may equal but shall not exceed the amount of tax paid on the motor fuel to which the written-off account or unpaid taxes apply.

D. If, after a refund is received under Subsection A of this section or a credit is taken under Subsection B of this section, the account on which the refund or credit was based is paid, or if the department otherwise determines that the refund or credit was not authorized by Subsection A or B of this section, the unpaid taxes shall be paid by the distributor receiving the refund or the supplier or permissive supplier taking the credit, plus a penalty of ten percent of the amount of the unpaid tax and interest at the rate provided by Section 7-1-69 NMSA 1978 beginning on the day the refund was issued.

E. This section does not apply to a sale of motor fuel that is delivered into the fuel supply tank of a motor vehicle or motorboat and for which payment is made through the use and acceptance of a credit card.

F. A refund pursuant to this section shall be claimed at the time the account is written off as a bad debt, but may only be claimed before the expiration of the applicable limitation period as provided by Section 7-1-26 NMSA 1978.

G. The department may take action against a person in relation to whom a distributor, supplier or permissive supplier has made a refund claim or taken a credit for collection of the tax owed and for penalty and interest as provided by Section 7-1-26 NMSA 1978.

SECTION 29. [NEW MATERIAL] CLAIMS FOR REFUND.--

A. A refund claim shall be filed on a form provided by the department, be supported by the original invoice issued by the seller and contain:

(1) the stamped or preprinted name and address of the seller;

(2) the name of the purchaser;

(3) the date of delivery of the motor fuel;

(4) the date of the issuance of the invoice, if different from the date of motor fuel delivery;

(5) the number of gallons of motor fuel delivered;

(6) the amount of tax, either separately stated from the selling price or stated with a notation that the selling price includes the tax; and

(7) the type of vehicle or equipment into which the motor fuel is delivered.

B. The purchaser shall obtain the original invoice from the seller of motor fuel not later than the thirtieth day after the date the motor fuel is delivered to the purchaser. If the delivery of motor fuel is made through an automated method in which the purchase is automatically applied to the purchaser's account, one invoice may be issued at the time of billing that covers multiple purchases made during a thirty-day billing cycle.

C. A distribution log filed with the department to support the number of gallons of motor fuel removed from a bulk user's own bulk storage shall contain the name and address of the bulk user making the delivery stamped or preprinted on the log and, for each individual delivery from the bulk storage:

(1) the date of delivery;

(2) the number of gallons of motor fuel delivered;

(3) the signature of the bulk user; and

(4) the type or description of off-highway equipment into which the motor fuel was delivered, or the type of licensed motor vehicle into which the motor fuel was delivered, including the state highway license plate number or vehicle identification number and odometer or hubmeter reading.

D. A distributor or person who does not hold a license who files a valid refund claim with the department shall be paid by a warrant issued by the department. For purposes of this section, a distributor meets the requirement of filing a valid refund claim if the distributor designates the gallons of motor fuel sold or used that are the subject of the refund claim on the monthly report submitted by the distributor to the department.

E. A person who files a claim for a tax refund on motor fuel used for a purpose for which a tax refund is not authorized or who files an invoice supporting a refund claim on which the date, figures or any material information has been falsified or altered, forfeits the person's right to the entire amount of the refund claim filed unless the claimant provides proof satisfactory to the department that the incorrect refund claim filed was due to a clerical or mathematical calculation error.

F. After examination of the refund claim, the department, before issuing a refund warrant, shall deduct from the amount of the refund the two percent deducted originally by the license holder on the first sale or distribution of the motor fuel.

SECTION 30. [NEW MATERIAL] WHEN A GASOLINE OR SPECIAL FUEL EXCISE TAX REFUND OR CREDIT MAY BE FILED.--

A. Except as otherwise provided by this section, a claim for a refund shall be filed with the department before the first anniversary of the first day of the calendar month following the purchase, use, delivery or export, or loss by fire, theft or accident of motor fuel, whichever period expires latest.

B. If the department assesses a supplier or permissive supplier for a tax-exempt sale that is taxable, and the supplier or permissive supplier subsequently collects the tax from the purchaser, the purchaser may file a refund claim before the first anniversary of the date the supplier's or permissive supplier's deficiency assessment becomes final if the purchaser used the motor fuel in an exempt manner.

C. A supplier, permissive supplier, distributor, importer, exporter or blender that determines taxes were erroneously reported and remitted or that paid more taxes than were due to this state because of a mistake of fact or law may take a credit on the monthly tax report on which the error has occurred and tax payment made to the department. The credit shall be taken before the expiration of the applicable period of limitation as provided by Section 7-1-26 NMSA 1978.

SECTION 31. [NEW MATERIAL] NOTICE REGARDING DYED SPECIAL FUEL.--A notice stating "DYED SPECIAL FUEL, NONTAXABLE USE ONLY, PENALTY FOR TAXABLE USE" shall be:

A. provided by a licensed supplier, permissive supplier or distributor to a person who receives dyed special fuel;

B. provided by a seller of dyed special fuel to the person's buyers; and

C. posted by a seller on a retail pump or bulk plant at which the person sells dyed special fuel for use by the person's buyers.

SECTION 32. [NEW MATERIAL] DYED SPECIAL FUEL NOTICE REQUIRED ON SHIPPING DOCUMENTS, BILLS OF LADING AND INVOICES.--The form of notice required by Subsections A and B of Section 31 of the Motor Fuel Taxes Act shall be provided when the dyed special fuel is removed or sold and shall appear on each shipping document, bill of lading, cargo manifest and invoice accompanying the sale or removal of the dyed special fuel.

SECTION 33. [NEW MATERIAL] UNAUTHORIZED SALE OR USE OF DYED SPECIAL FUEL.--

A. A person shall not sell or hold for sale dyed special fuel for any use that the person knows or has reason to know is a taxable use of the special fuel.

B. A person shall not use or hold for use dyed special fuel for a use other than a nontaxable use if the person knows or has reason to know that the special fuel is dyed special fuel.

SECTION 34. [NEW MATERIAL] ALTERATION OF DYE OR MARKER IN DYED SPECIAL FUEL PROHIBITED.--A person, with the intent to evade payment of tax, shall not alter or attempt to alter the strength or composition of a dye or marker in dyed special fuel.

SECTION 35. [NEW MATERIAL] USE OF DYED SPECIAL FUEL PROHIBITED.--

A. A person shall not operate a motor vehicle on a public highway in this state with taxable motor fuel that contains dye in the fuel supply tank of the motor vehicle.

B. This section does not apply to a use of dyed special fuel that is lawful under the Internal Revenue Code and implementing regulations, including use in state and local government vehicles or buses, unless otherwise prohibited by the Motor Fuel Taxes Act.

SECTION 36. [NEW MATERIAL] CANCELLATION OR REFUSAL OF LICENSE.--

A. The department may cancel or refuse to issue or reissue a motor fuel license to any person who has violated or has failed to comply with a provision of the Motor Fuel Taxes Act or a rule of the department. Before the cancellation or refusal to issue or reissue a motor fuel license, the license holder shall be given ten days' notice, except as provided in Subsection B of this section.

B. The department may suspend a person's license without notice or a hearing for the person's failure to comply with the Motor Fuel Taxes Act if the person's continued operation constitutes an immediate and substantial threat to the collection of taxes imposed by the Motor Fuel Taxes Act and attributable to the person's operation.

C. Unless a more specific provision for review exists, any person may dispute the cancellation or refusal to issue or reissue a motor fuel license by filing with the department a written protest against the action or inaction by the department. Every protest shall identify the person and the action or inaction that is in dispute, the grounds for the protest and the affirmative relief requested. The statement of grounds for protest shall specify individual grounds upon which the protest is based and a summary statement of the evidence expected to be produced supporting each ground asserted, if any; provided that the person may supplement the statement at any time prior to a hearing conducted on the protest pursuant to the provisions of the Administrative Hearings Office Act. The department may, in appropriate cases, provide for an informal conference before the administrative hearings office sets a hearing of the protest.

D. Any protest by a person shall be filed within thirty days of the date of the mailing or verbal notification of the action proposed to be taken by the department. If a protest is not filed within the time required for filing a protest, the department may proceed with the action proposed by the department.

SECTION 37. [NEW MATERIAL] ENFORCEMENT OF LICENSE CANCELLATION, SUSPENSION OR REFUSAL.--

A. The department may examine any books and records incident to the conduct of the business of a person whose license has been canceled or suspended on the person's failure to file the reports required by the Motor Fuel Taxes Act or to remit all taxes due. If necessary, the department shall issue an audit deficiency determination for any tax amount due. If the amount is not paid on or before the fifteenth day after the deficiency determination becomes final, the bond or other security required pursuant to the Motor Fuel Taxes Act shall be forfeited. The demand for payment shall be addressed to both the surety or sureties and the person who owes the delinquency.

B. If the forfeiture of the bond or other security does not satisfy the delinquency, the department shall certify the taxes, penalty and interest delinquent to the attorney general, who may file suit against the person or the person's surety, or both, to collect the amount due. After being given notice of an order of cancellation or summary suspension, it is unlawful for any person to continue to operate the person's business under a canceled or suspended license. The attorney general may file suit to enjoin the person from operating under the canceled or suspended license until the department reissues a license.

C. An appeal from an order of the department canceling or suspending or refusing the issuance or reissuance of a license may be taken to a district court of Santa Fe county by the aggrieved license holder or applicant. The trial shall be de novo under the same rules as ordinary civil suits, except that:

(1) an appeal shall be perfected and filed within thirty days after the effective date of the order, decision or ruling of the department;

(2) the trial of the case shall begin within ten days after its filing; and

(3) the order, decision or ruling of the department may be suspended or modified by the court pending a trial on the merits.

SECTION 38. [NEW MATERIAL] INSPECTION OF PREMISES AND RECORDS.--For the purpose of determining the amount of tax collected and payable to this state, the amount of tax accruing and due, and whether a tax liability has been incurred pursuant to the Motor Fuel Taxes Act, the department may:

A. inspect any premises where motor fuel, crude petroleum, natural gas, derivatives or condensates of crude petroleum, natural gas or their products, methyl alcohol, ethyl alcohol or other blending agents are produced, made, prepared, stored, transported, sold or offered for sale or exchange;

B. examine the books and records required to be kept and records incident to the business of any license holder or person required to be licensed, or any person receiving, possessing, delivering or selling motor fuel, crude oil, derivatives or condensates of crude petroleum, natural gas or their products, or any blending agents;

C. examine and either gauge or measure the contents of all storage tanks, containers and other property or equipment; and

D. take samples of any and all of these products stored on the premises.

SECTION 39. [NEW MATERIAL] AUTHORITY TO STOP AND EXAMINE.--To enforce the Motor Fuel Taxes Act, the department or a peace officer may stop a motor vehicle that appears to be operating with or transporting motor fuel to examine the shipping document, cargo manifest or invoices required to be carried, examine a license or copy of a license that may be required to be carried, take samples from the fuel supply or cargo tanks and make any other investigation that could reasonably be made to determine whether the taxes have been paid or accounted for by a license holder or a person required to be licensed. The department, a peace officer, an employee of the attorney general's office or an employee of the New Mexico department of agriculture may take samples of motor fuel from a storage tank or container to:

A. determine if the fuel contains hazardous waste or is adulterated; or

B. allow the department to determine whether taxes on the fuel have been paid or accounted for to this state.

SECTION 40. [NEW MATERIAL] IMPOUNDMENT AND SEIZURE.--

A. If after examination or other investigation, the department believes that the owner or operator of a motor vehicle or cargo tank, or a person receiving, possessing, delivering or selling gasoline or diesel fuel, has not paid all taxes due, or does not have a valid license entitling that person to possess or transport tax-exempt motor fuel, the department or peace officer may impound the fuel, motor vehicle, cargo tank, storage tank, equipment, paraphernalia or other tangible personal property used for or incident to the storage, sale or transportation of that motor fuel. Unless proof is produced within three working days after the beginning of impoundment that the owner, operator or other person has paid the taxes established by the department to be due on the gasoline or diesel fuel stored, sold, used or transported and any other taxes due to this state, or that the owner, operator or other person holds a valid license to possess or transport tax-exempt motor fuel, the department may demand payment of all taxes, penalties and interest due to this state, and all costs of impoundment.

B. If the owner or operator does not produce the required documentation or required license or pay the taxes, penalties, interest and costs due within three working days after the beginning of the impoundment, the department may seize the impounded property to satisfy the tax liability.

C. The department may seize:

(1) all motor fuel on which taxes are imposed by the Motor Fuel Taxes Act that is found in the possession, custody or control of any person for the purpose of being sold, transported, removed or used by the person in violation of that act;

(2) all motor fuel that is removed or is deposited, stored or concealed in any place with intent to avoid payment of taxes;

(3) any automobile, truck, tank truck, boat, trailer conveyance or other vehicle used in the removal or transportation of the motor fuel to avoid payment of taxes; and

(4) all equipment, paraphernalia, storage tanks or tangible personal property incident to and used for avoiding the payment of taxes and found in the place, building or vehicle where the motor fuel is found.

SECTION 41. [NEW MATERIAL] SALE OF SEIZED PROPERTY.--

A. The department may sell property seized pursuant to Section 40 of the Motor Fuel Taxes Act.

B. Notice of the time and place of a sale shall be given to the delinquent person in writing by certified mail at least twenty days before the date set for the sale. The notice shall be enclosed in an envelope addressed to the person at the person's last known address or place of business. It shall be deposited in the United States mail, postage prepaid. The notice shall also be published once a week for two consecutive weeks before the date of the sale in a newspaper of general circulation published in the county in which the property seized is to be sold. If there is no newspaper of general circulation in the county, notice shall be posted in three public places in the county fourteen days before the date set for the sale. The notice shall contain a description of the property to be sold, a statement of the amount due, including interest, penalties and costs, the name of the delinquent and the further statement that unless the amount due, interest, penalties and costs are paid on or before the time fixed in the notice for the sale, the property, or as much of it as may be necessary, will be sold at public auction in accordance with the law and the notice.

C. At the sale, the department shall sell the property and shall deliver to the purchaser a bill of sale for personal property and a deed for real property sold. The bill of sale or deed vests the interest or title of the person liable for the amount in the purchaser. The unsold portion of any property seized may be left at the place of sale at the risk of the person liable for the amount.

D. The proceeds of a sale shall be allocated according to the following priorities:

(1) the payment of expenses of seizure, appraisal, custody, advertising, auction and any other expenses incident to the seizure and sale;

(2) the payment of the tax, penalty and interest; and

(3) the repayment of the remaining balance to the person liable for the amount unless a claim is presented before the sale by any other person who has an ownership interest evidenced by a financing statement or lien, in which case the department shall withhold the remaining balance pending a determination of the rights of the respective parties.

SECTION 42. [NEW MATERIAL] PRESUMPTIONS.--A person licensed pursuant to the Motor Fuel Taxes Act or required to be licensed under that act or other user, who fails to keep a record, issue an invoice or file a return or report required by that act, is presumed to have sold or used for taxable purposes all motor fuel shown by an audit by the department to have been sold to the license holder or other user. Motor fuel unaccounted for is presumed to have been sold or used for taxable purposes. If an exporter claims an exemption pursuant to Subparagraph (b) of Paragraph (5) of Subsection A of Section 7 of the Motor Fuel Taxes Act and fails to produce proof of payment of tax to the destination state or proof that the transaction was exempt in the destination state, the exporter is presumed to have not paid the destination state's tax or this state's tax on the exported motor fuel, and the department shall assess the tax imposed on the exported motor fuel against the exporter. The department may fix or establish the amount of taxes, penalties and interest due this state from the records of deliveries or from any records or information available. If a tax claim, as developed from this procedure, is not paid, after the opportunity to request a redetermination, the claim and any audit made by the department or any report filed by the license holder or other user is evidence in any suit or judicial proceedings filed by the attorney general and is prima facie evidence of the correctness of the claim or audit. A prima facie presumption of the correctness of the claim may be overcome at the trial by evidence adduced by the license holder or other user.

SECTION 43. [NEW MATERIAL] LICENSE HOLDER STATUS LIST.--

A. The department, on or before December 20 of each year, shall make available to all license holders an alphabetical list of licensed suppliers, permissive suppliers, distributors, importers, exporters, blenders and terminal operators. A supplemental list of additions and deletions shall be made available to the license holders each month. A current and effective license or the list furnished by the department is evidence of the validity of the license until the department notifies license holders of a change in the status of a license holder.

B. A licensed supplier, permissive supplier or distributor who sells tax-exempt motor fuel to a person whose supplier's or permissive supplier's license has been canceled or revoked pursuant to the Motor Fuel Taxes Act is liable for any tax due on motor fuel sold after receiving notice of the cancellation or revocation.

C. The department shall notify all license holders pursuant to the Motor Fuel Taxes Act when a canceled or revoked license is subsequently reinstated and include in the notice the effective date of the reinstatement. Sales to the supplier or permissive supplier after the effective date of the reinstatement may be made tax exempt.

SECTION 44. Section 7-1-2 NMSA 1978 (being Laws 1965, Chapter 248, Section 2, as amended) is amended to read:

"7-1-2. APPLICABILITY.--The Tax Administration Act applies to and governs:

A. the administration and enforcement of the following taxes or tax acts as they now exist or may hereafter be amended:

(1) Income Tax Act;

(2) Withholding Tax Act;

(3) Venture Capital Investment Act;

(4) Gross Receipts and Compensating Tax Act and any state gross receipts tax;

(5) Liquor Excise Tax Act;

(6) Local Liquor Excise Tax Act;

(7) any municipal local option gross receipts tax;

(8) any county local option gross receipts tax;

[(9) Special Fuels Supplier Tax Act;

(10) Gasoline Tax Act;] (9) Motor Fuel Taxes Act;

[(11)] (10) petroleum products loading fee, which fee shall be considered a tax for the purpose of the Tax Administration Act;

[(12)] (11) Alternative Fuel Tax Act;

[(13)] (12) Cigarette Tax Act;

[(14)] (13) Estate Tax Act;

[(15)] (14) Railroad Car Company Tax Act;

[(16)] (15) Investment Credit Act, rural job tax credit, Laboratory Partnership with Small Business Tax Credit Act, Technology Jobs and Research and Development Tax Credit Act, Film Production Tax Credit Act, Affordable Housing Tax Credit Act and high-wage jobs tax credit;

[(17)] (16) Corporate Income and Franchise Tax Act;

[(18)] (17) Uniform Division of Income for Tax Purposes Act;

[(19)] (18) Multistate Tax Compact;

[(20)] (19) Tobacco Products Tax Act; and

[(21)] (20) the telecommunications relay service surcharge imposed by Section 63-9F-11 NMSA 1978, which surcharge shall be considered a tax for the purposes of the Tax Administration Act;

B. the administration and enforcement of the following taxes, surtaxes, advanced payments or tax acts as they now exist or may hereafter be amended:

(1) Resources Excise Tax Act;

(2) Severance Tax Act;

(3) any severance surtax;

(4) Oil and Gas Severance Tax Act;

(5) Oil and Gas Conservation Tax Act;

(6) Oil and Gas Emergency School Tax Act;

(7) Oil and Gas Ad Valorem Production Tax Act;

(8) Natural Gas Processors Tax Act;

(9) Oil and Gas Production Equipment Ad Valorem Tax Act;

(10) Copper Production Ad Valorem Tax Act;

(11) any advance payment required to be made by any act specified in this subsection, which advance payment shall be considered a tax for the purposes of the Tax Administration Act;

(12) Enhanced Oil Recovery Act;

(13) Natural Gas and Crude Oil Production Incentive Act; and

(14) intergovernmental production tax credit and intergovernmental production equipment tax credit;

C. the administration and enforcement of the following taxes, surcharges, fees or acts as they now exist or may hereafter be amended:

(1) Weight Distance Tax Act;

(2) the workers' compensation fee authorized by Section 52-5-19 NMSA 1978, which fee shall be considered a tax for purposes of the Tax Administration Act;

(3) Uniform Unclaimed Property Act (1995);

(4) 911 emergency surcharge and the network and database surcharge, which surcharges shall be considered taxes for purposes of the Tax Administration Act;

(5) the solid waste assessment fee authorized by the Solid Waste Act, which fee shall be considered a tax for purposes of the Tax Administration Act;

(6) the water conservation fee imposed by Section 74-1-13 NMSA 1978, which fee shall be considered a tax for the purposes of the Tax Administration Act; and

(7) the gaming tax imposed pursuant to the Gaming Control Act; and

D. the administration and enforcement of all other laws, with respect to which the department is charged with responsibilities pursuant to the Tax Administration Act, but only to the extent that the other laws do not conflict with the Tax Administration Act."

SECTION 45. Section 7-1-6.7 NMSA 1978 (being Laws 1994, Chapter 5, Section 2, as amended) is amended to read:

"7-1-6.7. DISTRIBUTIONS--STATE AVIATION FUND.--

A. A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the state aviation fund in an amount equal to four and seventy-nine hundredths percent of the taxable gross receipts attributable to the sale of fuel specially prepared and sold for use in turboprop or jet-type engines as determined by the department.

B. A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the state aviation fund in an amount equal to [twenty-six hundredths] two hundred one-thousandths percent of [gasoline] the taxes [exclusive of penalties and interest] collected pursuant to the Gasoline Tax Act and the Motor Fuel Taxes Act.

C. From July 1, 2013 through June 30, 2021, a distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be

made to the state aviation fund in an amount equal to forty-six thousandths percent of the net receipts attributable to the gross receipts tax distributable to the general fund.

D. A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the state aviation fund from the net receipts attributable to the gross receipts tax distributable to the general fund in an amount equal to

[(1) eighty thousand dollars ($80,000) monthly from July 1, 2007 through June 30, 2008;

(2) one hundred sixty-seven thousand dollars ($167,000) monthly from July 1, 2008 through June 30, 2009; and

(3)] two hundred fifty thousand dollars

($250,000) [monthly after July 1, 2009]."

SECTION 46. Section 7-1-6.8 NMSA 1978 (being Laws 1983, Chapter 211, Section 13, as amended) is amended to read:

"7-1-6.8. DISTRIBUTION--MOTORBOAT FUEL TAX FUND.--A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the motorboat fuel tax fund in an amount equal to [thirteen-hundredths of one] one hundred one-thousandths percent of the net receipts attributable to the gasoline tax."

SECTION 47. Section 7-1-6.9 NMSA 1978 (being Laws 1991, Chapter 9, Section 11, as amended) is amended to read:

"7-1-6.9. DISTRIBUTION OF GASOLINE TAXES TO MUNICIPALITIES AND COUNTIES.--

A. A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made in an amount equal to [ten and thirty-eight hundredths] eight and twenty-one thousandths percent of the net receipts attributable to the taxes [exclusive of penalties and interest] imposed by the Gasoline Tax Act and the Motor Fuel Taxes Act.

B. [Except as provided in Subsection D of this section] The amount determined in Subsection A of this section shall be distributed as follows:

(1) ninety percent of the amount shall be paid to the treasurers of municipalities and H class counties in the proportion that the taxable motor fuel sales in each of the municipalities and H class counties bears to the aggregate taxable motor fuel sales in all of these municipalities and H class counties; and

(2) ten percent of the amount shall be paid to the treasurers of the counties, including H class counties, in the proportion that the taxable motor fuel sales outside of incorporated municipalities in each of the counties bears to the aggregate taxable motor fuel sales outside of incorporated municipalities in all of the counties.

C. Except as provided in Subsection D of this section, this distribution shall be paid into a separate road fund in the municipal treasury or county road fund for expenditure only for construction, reconstruction, resurfacing or other improvement or maintenance of public roads, streets, alleys or bridges, including right-of-way and materials acquisition. Money distributed pursuant to this section may be used by a municipality or county to provide matching funds for projects subject to cooperative agreements entered into with the [state highway and] department of transportation [department] pursuant to Section 67-3-28 NMSA 1978. Any municipality or H class county that has created or that creates a "street improvement fund" to which gasoline tax revenues or distributions are irrevocably pledged under Sections 3-34-1 through 3-34-4 NMSA 1978 or that has pledged all or a portion of gasoline tax revenues or distributions to the payment of bonds shall receive its proportion of the distribution of revenues under this section impressed with and subject to these pledges.

D. This distribution may be paid into a separate road fund or the general fund of the municipality or county if the municipality has a population less than three thousand or the county has a population less than four thousand."

SECTION 48. Section 7-1-6.10 NMSA 1978 (being Laws 1983, Chapter 211, Section 15, as amended) is amended to read:

"7-1-6.10. DISTRIBUTIONS--STATE ROAD FUND.--

A. A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the state road fund in an amount equal to the net receipts attributable to the taxes, surcharges, surtaxes, fees, penalties and interest imposed pursuant to the Gasoline Tax Act [and to the taxes, surtaxes, fees, penalties and interest imposed pursuant to], the Special Fuels Supplier Tax Act, the Motor Fuel Taxes Act and the Alternative Fuel Tax Act less:

(1) the amount distributed to the state aviation fund pursuant to Subsection B of Section 7-1-6.7 NMSA 1978;

(2) the amount distributed to the motorboat fuel tax fund pursuant to Section 7-1-6.8 NMSA 1978;

(3) the amount distributed to municipalities and counties pursuant to Subsection A of Section 7-1-6.9 NMSA 1978;

(4) the amount distributed to the county government road fund pursuant to Section 7-1-6.19 NMSA 1978;

(5) the amount distributed to the local governments road fund pursuant to Section 7-1-6.39 NMSA 1978;

(6) the amount distributed to the municipalities pursuant to Section 7-1-6.27 NMSA 1978;

(7) the amount distributed to the municipal arterial program of the local governments road fund pursuant to Section 7-1-6.28 NMSA 1978;

[(8) the amount distributed to a qualified tribe pursuant to a gasoline tax sharing agreement entered into between the secretary of transportation and the qualified tribe pursuant to the provisions of Section 67-3-8.1 NMSA 1978;] and

[(9)] (8) the amount distributed to the [general fund pursuant to Section 7-1-6.44 NMSA 1978] department of transportation pursuant to Section 54 of this 2017 act.

B. A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the state road fund in an amount equal to the net receipts attributable to the taxes, interest and penalties from the Weight Distance Tax Act."

SECTION 49. Section 7-1-6.19 NMSA 1978 (being Laws 1991, Chapter 9, Section 15, as amended) is amended to read:

"7-1-6.19. DISTRIBUTION--COUNTY GOVERNMENT ROAD FUND CREATED.--

A. There is created in the state treasury the "county government road fund".

B. A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the county government road fund in an amount equal to [five and seventy-six hundredths] four and four hundred fifty-one thousandths percent of the net receipts attributable to the gasoline tax."

SECTION 50. Section 7-1-6.27 NMSA 1978 (being Laws 1991, Chapter 9, Section 20, as amended) is amended to read:

"7-1-6.27. DISTRIBUTION--MUNICIPAL ROADS.--

A. A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to municipalities for the purposes and amounts specified in this section in an aggregate amount equal to [five and seventy-six hundredths] four and four hundred fifty-one thousandths percent of the net receipts attributable to the gasoline tax.

B. The distribution authorized in this section shall be used for the following purposes:

(1) reconstructing, resurfacing, maintaining, repairing or otherwise improving existing alleys, streets, roads or bridges, or any combination of the foregoing; or laying off, opening, constructing or otherwise acquiring new alleys, streets, roads or bridges, or any combination of the foregoing; provided that any of the foregoing improvements may include, but are not limited to, the acquisition of rights of way;

(2) to provide matching funds for projects subject to cooperative agreements with the [state highway and] department of transportation [department] pursuant to Section 67-3-28 NMSA 1978; and

(3) for expenses of purchasing, maintaining and operating transit operations and facilities, for the operation of a transit authority established by the Municipal Transit Law and for the operation of a vehicle emission inspection program. A municipality may engage in the business of the transportation of passengers and property within the political subdivision by whatever means the municipality may decide and may acquire cars, trucks, motor buses and other equipment necessary for operating the business. A municipality may acquire land, erect buildings and equip the buildings with all the necessary machinery and facilities for the operation, maintenance, modification, repair and storage of the cars, trucks, motor buses and other equipment needed. A municipality may do all things necessary for the acquisition and the conduct of the business of public transportation.

C. For the purposes of this section:

(1) "computed distribution amount" means the distribution amount calculated for a municipality for a month pursuant to Paragraph (2) of Subsection D of this section prior to any adjustments to the amount due to the provisions of Subsections E and F of this section;

(2) "floor amount" means four hundred seventeen dollars ($417);

(3) "floor municipality" means a municipality whose computed distribution amount is less than the floor amount; and

(4) "full distribution municipality" means a municipality whose population at the last federal decennial census was at least two hundred thousand.

D. Subject to the provisions of Subsections E and F of this section, each municipality shall be distributed a portion of the aggregate amount distributable under this section in an amount equal to the greater of:

(1) the floor amount; or

(2) eighty-five percent of the aggregate amount distributable under this section times a fraction, the numerator of which is the municipality's reported taxable gallons of gasoline for the immediately preceding state fiscal year and the denominator of which is the reported total taxable gallons for all municipalities for the same period.

E. Fifteen percent of the aggregate amount distributable under this section shall be referred to as the "redistribution amount". Beginning in August 1990, and each month thereafter, from the redistribution amount there shall be taken an amount sufficient to increase the computed distribution amount of every floor municipality to the floor amount. In the event that the redistribution amount is insufficient for this purpose, the computed distribution amount for each floor municipality shall be increased by an amount equal to the redistribution amount times a fraction, the numerator of which is the difference between the floor amount and the municipality's computed distribution amount and the denominator of which is the difference between the product of the floor amount multiplied by the number of floor municipalities and the total of the computed distribution amounts for all floor municipalities.

F. If a balance remains after the redistribution amount has been reduced pursuant to Subsection E of this section, there shall be added to the computed distribution amount of each municipality that is neither a full distribution municipality nor a floor municipality an amount that equals the balance of the redistribution amount times a fraction, the numerator of which is the computed distribution amount of the municipality and the denominator of which is the sum of the computed distribution amounts of all municipalities that are neither full distribution municipalities nor floor municipalities."

SECTION 51. Section 7-1-6.28 NMSA 1978 (being Laws 1991, Chapter 9, Section 22, as amended) is amended to read:

"7-1-6.28. DISTRIBUTION--MUNICIPAL ARTERIAL PROGRAM OF LOCAL GOVERNMENTS ROAD FUND.--A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the municipal arterial program of the local governments road fund created in Section 67-3-28.2 NMSA 1978 in an amount equal to [one and forty-four hundredths] one and one hundred thirteen-thousandths percent of the net receipts attributable to the gasoline tax."

SECTION 52. Section 7-1-6.39 NMSA 1978 (being Laws 1995, Chapter 6, Section 9, as amended) is amended to read:

"7-1-6.39. DISTRIBUTION OF SPECIAL FUEL EXCISE TAX AND GASOLINE TAX TO LOCAL GOVERNMENTS ROAD FUND.--

A. A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the local governments road fund in an amount equal to [nine and fifty-two] nine and sixty-one hundredths percent of the net receipts attributable to the taxes [exclusive of penalties and interest, from the special fuel excise tax] imposed [by the Special Fuels Supplier Tax Act] on special fuel pursuant to the Special Fuels Supplier Tax Act and the Motor Fuel Taxes Act.

B. A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the local governments road fund in an amount equal to two and twenty-eight hundredths percent of the net receipts attributable to the taxes imposed on special fuel pursuant to the Special Fuels Supplier Tax Act and the Motor Fuel Taxes Act."

SECTION 53. A new section of the Tax Administration Act is enacted to read:

"[NEW MATERIAL] DISTRIBUTION--GASOLINE TAX AND SPECIAL FUEL EXCISE TAX TO TAX STABILIZATION RESERVE.--

A. A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the tax stabilization reserve in an amount equal to thirteen and sixty-four hundredths percent of the net receipts attributable to the gasoline tax and in an amount equal to eleven and fifty-four hundredths percent of the net receipts attributable to the special fuel excise tax until the month following a certification by the state board of finance to the secretary of taxation and revenue that the total amount in state reserve funds at the end of the prior fiscal year, according to the general fund financial summary that is prepared by the department of finance and administration in August of each year, was at least eight percent of the total general fund appropriations for the prior fiscal year, whichever occurs first.

B. As used in this section, "state reserve funds" means the general fund operating reserve, the appropriation contingency fund, the tax stabilization reserve and the tobacco settlement permanent fund."

SECTION 54. A new section of the Tax Administration Act is enacted to read:

"[NEW MATERIAL] DISTRIBUTION--GASOLINE TAX AND SPECIAL FUEL EXCISE TAX TO DEPARTMENT OF TRANSPORTATION FOR REST STOPS.--Beginning July 1, 2017 and prior to July 1, 2022, a distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the department of transportation in an amount equal to two and twenty-eight hundredths percent of the net receipts attributable to the gasoline tax and one and nine hundred twenty-three thousandths percent of the net receipts attributable to the special fuel excise tax for improvements and maintenance of rest stops in New Mexico."

SECTION 55. Section 7-1-8.2 NMSA 1978 (being Laws 2009, Chapter 243, Section 4) is amended to read:

"7-1-8.2. INFORMATION REQUIRED TO BE REVEALED.--

A. The department shall:

(1) furnish returns and return information required by a provision of the Tax Administration Act to be made available to the public by the department;

(2) answer all inquiries concerning whether a person is or is not a registered taxpayer for tax programs that require registration, but nothing in this subsection shall be construed to allow the department to answer inquiries concerning whether a person has filed a tax return;

(3) furnish, upon request for inspection by a member of the public pursuant to:

(a) Section 7-1-28 or [Section] 7-1-29 NMSA 1978, the taxpayer name, abatement, refund or credit amount, tax program or business tax credit and the date the abatement, refund or credit was issued; and

(b) Section 7-1-21 NMSA 1978, the installment agreement; and

(4) with respect to the [tax on gasoline imposed by the] gasoline tax [Act], make available for public inspection at monthly intervals a report covering the number of gallons of gasoline and ethanol blended fuels received and deducted and the amount of tax paid by each person required to file a gasoline tax return or pay gasoline tax in the state of New Mexico.

B. Nothing in this section shall be construed to require the release of information that would violate an agreement between the state and the federal internal revenue service for sharing of information or any provision or rule of the federal Internal Revenue Code to which a state is subject."

SECTION 56. Section 7-1-8.10 NMSA 1978 (being Laws 2009, Chapter 243, Section 12) is amended to read:

"7-1-8.10. INFORMATION THAT MAY BE REVEALED TO PRIVATE PERSONS OTHER THAN THE TAXPAYER.--An employee of the department may reveal to:

A. a transferee, assignee, buyer or lessor of a liquor license, the amount and basis of an unpaid assessment of tax for which the transferor, assignor, seller or lessee is liable;

B. a purchaser of a business as provided in Sections 7-1-61 through 7-1-63 NMSA 1978, the amount and basis of an unpaid assessment of tax for which the purchaser's seller is liable;

C. a rack operator, importer, blender, distributor or supplier, the identity of a rack operator, importer, blender, supplier or distributor and the number of gallons reported on returns required [under the Gasoline Tax Act, Special Fuels Supplier Tax] pursuant to the Motor Fuel Taxes Act or Alternative Fuel Tax Act, but only when it is necessary to enable the department to carry out its duties under [the Gasoline Tax Act, the Special Fuels Supplier Tax Act or the Alternative Fuel Tax Act] those acts; and

D. a corporation authorized to be formed under the Educational Assistance Act, upon its written request, the last known address and the date of that address of every person certified to the department as an absent obligor of an educational debt due and owed to the corporation or that the corporation has lawfully contracted to collect; this information may only be used by the corporation and its officers and employees to enforce the educational debt obligation of the absent obligors."

SECTION 57. Section 7-1-13.1 NMSA 1978 (being Laws 1988, Chapter 99, Section 3, as amended) is amended to read:

"7-1-13.1. METHOD OF PAYMENT OF CERTAIN TAXES DUE.--

A. Payment of the taxes, including any applicable penalties and interest, described in Paragraph (1), (2), (3) or (4) of this subsection shall be made on or before the date due in accordance with Subsection [B] C of this section if the taxpayer's average tax payment for the group of taxes during the preceding calendar year equaled or exceeded twenty-five thousand dollars ($25,000):

(1) Group 1: all taxes due under the Withholding Tax Act, the Gross Receipts and Compensating Tax Act, local option gross receipts tax acts, the Interstate Telecommunications Gross Receipts Tax Act and the Leased Vehicle Gross Receipts Tax Act;

(2) Group 2: all taxes due under the Oil and Gas Severance Tax Act, the Oil and Gas Conservation Tax Act, the Oil and Gas Emergency School Tax Act and the Oil and Gas Ad Valorem Production Tax Act;

(3) Group 3: the tax due under the Natural Gas Processors Tax Act; or

(4) Group 4: all taxes and fees due under the [Gasoline Tax Act, the Special Fuels Supplier Tax] Motor Fuel Taxes Act and the Petroleum Products Loading Fee Act.

B. For taxpayers who have more than one identification number issued by the department, the average tax payment shall be computed by combining the amounts paid under the several identification numbers.

[B.] C. Taxpayers who are required to make payment in accordance with the provisions of this section shall make payment by one or more of the following means on or before the due date so that funds are immediately available to the state on or before the due date:

(1) electronic payment; provided that a result of the payment is that funds are immediately available to the state of New Mexico on or before the due date;

(2) currency of the United States;

(3) check drawn on and payable at any New Mexico financial institution; provided that the check is received by the department at the place and time required by the department at least one banking day prior to the due date; or

(4) check drawn on and payable at any domestic non-New Mexico financial; institution provided that the check is received by the department at the time and place required by the department at least two banking days prior to the due date.

[C.] D. If the taxes required to be paid under this section are not paid in accordance with Subsection [B] C of this section, the payment is not timely and is subject to the provisions of Sections 7-1-67 and 7-1-69 NMSA 1978.

[D.] E. For the purposes of this section, "average tax payment" means the total amount of taxes paid with respect to a group of taxes listed under Subsection A of this section during a calendar year divided by the number of months in that calendar year containing a due date on which the taxpayer was required to pay one or more taxes in the group."

SECTION 58. Section 7-1-26 NMSA 1978 (being Laws 1965, Chapter 248, Section 28, as amended) is amended to read:

"7-1-26. DISPUTING LIABILITIES--CLAIM FOR CREDIT, REBATE OR REFUND.--

A. A person who believes that an amount of tax has been paid by or withheld from that person in excess of that for which the person was liable, who has been denied any credit or rebate claimed or who claims a prior right to property in the possession of the department pursuant to a levy made under authority of Sections 7-1-31 through 7-1-34 NMSA 1978 may claim a refund by directing to the secretary, within the time limited by the provisions of [Subsections] Subsection D [and E] of this section, a written claim for refund. Except as provided in Subsection [I] H of this section, a refund claim shall include:

(1) the taxpayer's name, address and identification number;

(2) the type of tax for which a refund is being claimed, the credit or rebate denied or the property levied upon;

(3) the sum of money or other property being claimed;

(4) with respect to refund, the period for which overpayment was made; and

(5) a brief statement of the facts and the law on which the claim is based, which may be referred to as the "basis for the refund".

B. The secretary or the secretary's delegate may allow the claim in whole or in part or may deny the claim.

(1) If the claim is denied in whole or in part in writing, no claim may be refiled with respect to that which was denied, but the person, within ninety days after either the mailing or delivery of the denial of all or any part of the claim, may elect to pursue one, but not more than one, of the remedies in Subsection C of this section.

(2) If the department has neither granted nor denied any portion of a claim for refund within one hundred twenty days of the date the claim was mailed or delivered to the department, the person may refile it within the time limits set forth in Subsection D of this section or may within ninety days elect to pursue one, but only one, of the remedies in Subsection C of this section. After the expiration of the two hundred ten days from the date the claim was mailed or delivered to the department, the department may not approve or disapprove the claim unless the person has pursued one of the remedies under Subsection C of this section.

C. A person may elect to pursue no more than one of the remedies in Paragraphs (1) and (2) of this subsection. A person who timely pursues more than one remedy shall be deemed to have elected the first remedy invoked. The person may:

(1) direct to the secretary, pursuant to the provisions of Section 7-1-24 NMSA 1978, a written protest that shall set forth:

(a) the circumstances of: 1) an alleged overpayment; 2) a denied credit; 3) a denied rebate; or 4) a denial of a prior right to property levied upon by the department;

(b) an allegation that, because of that overpayment or denial, the state is indebted to the taxpayer for a specified amount, including any allowed interest, or for the property;

(d) reciting the facts of the claim for refund; or

(2) commence a civil action in the district court for Santa Fe county by filing a complaint setting forth the circumstance of the claimed overpayment, denied credit or rebate or denial of a prior right to property levied upon by the department alleging that on account thereof the state is indebted to the plaintiff in the amount or property stated, together with any interest allowable, demanding the refund to the plaintiff of that amount or property and reciting the facts of the claim for refund. The plaintiff or the secretary may appeal from any final decision or order of the district court to the court of appeals.

D. [Except as otherwise provided in Subsection E of this section] No credit or refund of any amount may be allowed or made to any person unless as the result of a claim made by that person as provided in this section:

(1) within three years of the end of the calendar year in which:

(a) the payment was originally due or the overpayment resulted from an assessment by the department pursuant to Section 7-1-17 NMSA 1978, whichever is later;

(b) the final determination of value occurs with respect to any overpayment that resulted from a disapproval by any agency of the United States or the state of New Mexico or any court of increase in value of a product subject to taxation under the Oil and Gas Severance Tax Act, the Oil and Gas Conservation Tax Act, the Oil and Gas Emergency School Tax Act, the Oil and Gas Ad Valorem Production Tax Act or the Natural Gas Processors Tax Act;

(d) an overpayment of New Mexico tax resulted from: 1) an internal revenue service audit adjustment or a federal refund paid due to an adjustment of an audit by the internal revenue service or an amended federal return; or 2) making a change to a federal return for which federal approval is required by the Internal Revenue Code;

(2) when an amount of a claim for credit under the provisions of the Investment Credit Act, Laboratory Partnership with Small Business Tax Credit Act or Technology Jobs and Research and Development Tax Credit Act or for the rural job tax credit pursuant to Section 7-2E-1.1 NMSA 1978 or similar credit has been denied, the taxpayer may claim a refund of the credit no later than one year after the date of the denial;

(3) when a taxpayer under audit by the department has signed a waiver of the limitation on assessments on or after July 1, 1993 pursuant to Subsection F of Section 7-1-18 NMSA 1978, the taxpayer may file a claim for refund of the same tax paid for the same period for which the waiver was given, until a date one year after the later of the date of the mailing of an assessment issued pursuant to the audit, the date of the mailing of final audit findings to the taxpayer or the date a proceeding is begun in court by the department with respect to the same tax and the same period;

(4) if the payment of an amount of tax was not made within three years of the end of the calendar year in which the original due date of the tax or date of the assessment of the department occurred, a claim for refund of that amount of tax can be made within one year of the date on which the tax was paid; or

(5) when a taxpayer has been assessed a tax on or after July 1, 1993 under Subsection B, C or D of Section 7-1-18 NMSA 1978 and when the assessment applies to a period ending at least three years prior to the beginning of the year in which the assessment was made, the taxpayer may claim a refund for the same tax for the period of the assessment or for any period following that period within one year of the date of the assessment unless a longer period for claiming a refund is provided in this section.

[E. No credit or refund shall be allowed or made to any person claiming a refund of gasoline tax under Section

7-13-11 NMSA 1978 unless notice of the destruction of the gasoline was given the department within thirty days of the actual destruction and the claim for refund is made within six months of the date of destruction. No credit or refund shall be allowed or made to any person claiming a refund of gasoline tax under Section 7-13-17 NMSA 1978 unless the refund is claimed within six months of the date of purchase of the gasoline and the gasoline has been used at the time the claim for refund is made.

F.] E. If as a result of an audit by the department or a managed audit covering multiple periods an overpayment of tax is found in any period under the audit, that overpayment may be credited against an underpayment of the same tax found in another period under audit pursuant to Section 7-1-29 NMSA 1978, provided that the taxpayer files a claim for refund for the overpayments identified in the audit.

[G.] F. Any refund of tax paid under any tax or tax act administered under Subsection B of Section 7-1-2 NMSA 1978 may be made, at the discretion of the department, in the form of credit against future tax payments if future tax liabilities in an amount at least equal to the credit amount reasonably may be expected to become due.

[H.] G. For the purposes of this section, "oil and gas tax return" means a return reporting tax due with respect to oil, natural gas, liquid hydrocarbons, carbon dioxide, helium or nonhydrocarbon gas pursuant to the Oil and Gas Severance Tax Act, the Oil and Gas Conservation Tax Act, the Oil and Gas Emergency School Tax Act, the Oil and Gas Ad Valorem Production Tax Act, the Natural Gas Processors Tax Act or the Oil and Gas Production Equipment Ad Valorem Tax Act. [I.] H. The filing of a fully completed original income tax return, corporate income tax return, corporate income and franchise tax return, estate tax return or special fuel excise tax return that shows a balance due the taxpayer or a fully completed amended income tax return, an amended corporate income tax return, an amended corporate income and franchise tax return, an amended estate tax return, an amended special fuel excise tax return or an amended oil and gas tax return that shows a lesser tax liability than the original return constitutes the filing of a claim for refund for the difference in tax due shown on the original and amended returns."

SECTION 59. Section 7-1-28 NMSA 1978 (being Laws 1965, Chapter 248, Section 30, as amended) is amended to read:

"7-1-28. AUTHORITY FOR ABATEMENTS OF ASSESSMENTS OF TAX.--

A. In response to a written protest against an assessment, submitted in accordance with the provisions of Section 7-1-24 NMSA 1978, but before any court acquires jurisdiction of the matter, or when a "notice of assessment of taxes" is incorrect, the secretary or the secretary's delegate may abate any part of an assessment determined by the secretary or the secretary's delegate to have been incorrectly, erroneously or illegally made. An abatement in the amount of twenty thousand dollars ($20,000) or more shall be made with the prior approval of the attorney general; except that the secretary or the secretary's delegate may make abatements with respect to the Oil and Gas Severance Tax Act, the Oil and Gas Conservation Tax Act, the Oil and Gas Emergency School Tax Act, the Oil and Gas Ad Valorem Production Tax Act, the Natural Gas Processors Tax Act or the Oil and Gas Production Equipment Ad Valorem Tax Act [abatements of gasoline tax made under Section 7-13-17 NMSA 1978] and abatements of cigarette tax made under the Cigarette Tax Act without the prior approval of the attorney general regardless of the amount.

B. Pursuant to the final order of the district court, the court of appeals, the supreme court of New Mexico or any federal court, from which order, appeal or review is not successfully taken by the department, adjudging that any person is not required to pay any portion of tax assessed to that person, the secretary or the secretary's delegate shall cause that amount of the assessment to be abated.

C. Pursuant to a compromise of taxes agreed to by the secretary and according to the terms of the closing agreement formalizing the compromise, the secretary or the secretary's delegate shall cause the abatement of the appropriate amount of any assessment of tax.

D. The secretary or the secretary's delegate shall cause the abatement of the amount of an assessment of tax that is equal to the amount of fee paid to or retained by an out-of-state attorney or collection agency from a judgment or the amount collected by the attorney or collection agency pursuant to Section 7-1-58 NMSA 1978.

E. Records of abatements made in excess of ten thousand dollars ($10,000) shall be available for inspection by the public. The department shall keep such records for a minimum of three years from the date of the abatement.

F. In response to a timely protest pursuant to Section 7-1-24 NMSA 1978 of an assessment by the department and notwithstanding any other provision of the Tax Administration Act, the secretary or the secretary's delegate may abate that portion of an assessment of tax, including applicable penalties and interest, representing the amount of tax previously paid by another person on behalf of the taxpayer on the same transaction; provided that the requirements of equitable recoupment are met. For purposes of this subsection, the protest pursuant to Section 7-1-24 NMSA 1978 of the department's assessment may be made by the taxpayer to whom the assessment was issued or by the other person who claims to have previously paid the tax on behalf of the taxpayer."

SECTION 60. Section 7-1-29 NMSA 1978 (being Laws 1965, Chapter 248, Section 31, as amended) is amended to read:

"7-1-29. AUTHORITY TO MAKE REFUNDS OR CREDITS.--

A. In response to a claim for refund, credit or rebate made as provided in Section 7-1-26 NMSA 1978, but before a court acquires jurisdiction of the matter, the secretary or the secretary's delegate may authorize payment to a person in the amount of the [creditor] credit or rebate claimed or refund an overpayment of tax determined by the secretary or the secretary's delegate to have been erroneously made by the person, together with allowable interest. A payment of a credit rebate claimed or a refund of tax and interest erroneously paid amounting to twenty thousand dollars ($20,000) or more shall be made with the prior approval of the attorney general, except that the secretary or the secretary's delegate may make refunds with respect to the Oil and Gas Severance Tax Act, the Oil and Gas Conservation Tax Act, the Oil and Gas Emergency School Tax Act, the Oil and Gas Ad Valorem Production Tax Act, the Natural Gas Processors Tax Act or the Oil and Gas Production Equipment Ad Valorem Tax Act, Section 7-13-17 NMSA 1978 and the Cigarette Tax Act without the prior approval of the attorney general regardless of the amount.

B. Pursuant to the final order of the district court, the court of appeals, the supreme court of New Mexico or a federal court, from which order, appeal or review is not successfully taken, adjudging that a person has properly claimed a credit or rebate or made an overpayment of tax, the secretary shall authorize the payment to the person of the amount thereof.

C. In the discretion of the secretary, any amount of credit or rebate to be paid or tax to be refunded may be offset against any amount of tax for which the person due to receive the credit, rebate payment or refund is liable. The secretary or the secretary's delegate shall give notice to the taxpayer that the credit, rebate payment or refund will be made in this manner, and the taxpayer shall be entitled to interest pursuant to Section 7-1-68 NMSA 1978 until the tax liability is credited with the credit, rebate or refund amount.

D. In an audit by the department or a managed audit covering multiple reporting periods in which both underpayments and overpayments of a tax have been made in different reporting periods, the department shall credit the tax overpayments against the underpayments, provided that the taxpayer files a claim for refund of the overpayments. An overpayment shall be applied as a credit first to the earliest underpayment and then to succeeding underpayments. An underpayment of tax to which an overpayment is credited pursuant to this section shall be deemed paid in the period in which the overpayment was made or the period to which the overpayment was credited against an underpayment, whichever is later. If the overpayments credited pursuant to this section exceed the underpayments of a tax, the amount of the net overpayment for the periods covered in the audit shall be refunded to the taxpayer.

E. When a taxpayer makes a payment identified to a particular return or assessment, and the department determines that the payment exceeds the amount due pursuant to that return or assessment, the secretary may apply the excess to the taxpayer's other liabilities pursuant to the tax acts to which the return or assessment applies, without requiring the taxpayer to file a claim for a refund. The liability to which an overpayment is applied pursuant to this section shall be deemed paid in the period in which the overpayment was made or the period to which the overpayment was applied, whichever is later.

F. If the department determines, upon review of an original or amended income tax return, corporate income and franchise tax return, estate tax return, special fuels excise tax return or oil and gas tax return, that there has been an overpayment of tax for the taxable period to which the return or amended return relates in excess of the amount due to be refunded to the taxpayer pursuant to the provisions of [Subsection I of] Section 7-1-26 NMSA 1978, the department may refund that excess amount to the taxpayer without requiring the taxpayer to file a refund claim.

G. Records of refunds and credits made in excess of ten thousand dollars ($10,000) shall be available for inspection by the public. The department shall keep such records for a minimum of three years from the date of the refund or credit.

H. In response to a timely refund claim pursuant to Section 7-1-26 NMSA 1978 and notwithstanding any other provision of the Tax Administration Act, the secretary or the secretary's delegate may refund or credit a portion of an assessment of tax paid, including applicable penalties and interest representing the amount of tax previously paid by another person on behalf of the taxpayer on the same transaction, provided that the requirements of equitable recoupment are met. For purposes of this subsection, the refund claim may be filed by the taxpayer to whom the assessment was issued or by another person who claims to have previously paid the tax on behalf of the taxpayer. Prior to granting the refund or credit, the secretary may require a waiver of all rights to claim a refund or credit of the tax previously paid by another person paying a tax on behalf of the taxpayer."

SECTION 61. Section 7-1-69.1 NMSA 1978 (being Laws 2005, Chapter 109, Section 1, as amended) is amended to read:

"7-1-69.1. CIVIL PENALTY FOR FAILURE TO FILE AN INFORMATION RETURN.--A taxpayer, wholesaler, retailer or rack operator who fails to file an information return on time pursuant to the [Gasoline Tax Act or the Special Fuels Supplier Tax] Motor Fuel Taxes Act shall pay a penalty of fifty dollars ($50.00) for each late report. This penalty shall be in addition to other applicable penalties."

SECTION 62. Section 7-1B-1 NMSA 1978 (being Laws 2015, Chapter 73, Section 1) is amended to read:

"7-1B-1. SHORT TITLE.--[Sections 1 through 9 of this act] Chapter 7, Article 1B NMSA 1978 may be cited as the "Administrative Hearings Office Act"."

SECTION 63. Section 7-1B-6 NMSA 1978 (being Laws 2015, Chapter 73, Section 6) is amended to read:

"7-1B-6. HEARING OFFICER CODE OF CONDUCT--INDEPENDENCE.--

A. The chief hearing officer shall:

(1) adopt and promulgate a hearing officer code of conduct; and

(2) periodically evaluate each hearing officer's performance for competency, efficiency and professional demeanor in accord with relevant legal standards and the hearing officer code of conduct.

B. The chief hearing officer shall ensure that each hearing officer has decisional independence; however, the chief hearing officer may:

(1) consult with a hearing officer about a genuine question of law; and

(2) review with a hearing officer any issue on appeal addressed by a court of this state.

C. The administrative hearings office shall:

(1) hear all tax protests pursuant to the provisions of the Tax Administration Act;

(2) hear property tax protests pursuant to the provisions of the Property Tax Code;

(3) hear all certificate-denial protests pursuant to the provisions of Section 13-1-22 NMSA 1978;

(4) conduct all adjudicatory hearings pursuant to the Motor Vehicle Code;

(5) conduct all driver's license revocation hearings pursuant to the provisions of the Implied Consent Act;

(6) conduct all hearings regarding the cancellation or refusal to issue or reissue a motor fuel license pursuant to the Motor Fuel Taxes Act;

[(6)] (7) make and preserve a complete record of all proceedings; and

[(7)] (8) maintain confidentiality regarding taxpayer information as required by the provisions of Section 7-1-8 NMSA 1978.

D. In hearings conducted pursuant to the Tax Administration Act, Section 13-1-22 NMSA 1978 and the Motor Vehicle Code:

(1) the Rules of Evidence do not apply. The hearing officer may require reasonable substantiation of statements or records tendered, the accuracy or truth of which is in reasonable doubt, to rule on the admissibility of evidence. A taxpayer or the taxation and revenue department may request a written ruling on a contested question of evidence in a matter in which the taxpayer has filed a written protest and for which that protest is pending. The administrative hearings office shall issue a copy of its written ruling to the taxation and revenue department at the time the ruling is issued to the taxpayer;

(2) the Rules of Civil Procedure for the District Courts do not apply. The hearing officer shall conduct a hearing to allow the ample and fair presentation of complaints and defenses. The hearing officer shall hear arguments, permit discovery, entertain and dispose of motions, require written expositions of the case as the circumstances justify and render a decision in accordance with the law and the evidence presented and admitted. A taxpayer or the taxation and revenue department may request a written ruling on a contested question of procedure in a matter in which the taxpayer has filed a written protest and for which that protest is pending. The administrative hearings office shall issue a copy of its written ruling to the taxation and revenue department at the time the ruling is issued to the taxpayer; and

(3) the hearing officer may administer oaths and issue subpoenas for the attendance of witnesses and the production of relevant books and papers, and for hearings conducted for a license suspension pursuant to Section 66-5-30 NMSA 1978, the hearing officer may require a reexamination of the licensee."

SECTION 64. A new section of the Administrative Hearings Office Act is enacted to read:

"[NEW MATERIAL] CANCELLATION OR REFUSAL TO ISSUE OR REISSUE MOTOR FUEL LICENSE.--

A. A person may dispute the cancellation or refusal to issue or reissue a motor fuel license pursuant to the Motor Fuel Taxes Act. Upon timely receipt of a protest, the chief hearing officer shall promptly designate a hearing officer to conduct a hearing and shall set a date for the hearing. On that date, the hearing officer shall hear the protest.

B. A person may appear at a hearing set pursuant to the provisions of Subsection A of this section for the person's self or be represented by a bona fide employee or an attorney. A hearing shall not be open to the public except upon request of the person. A hearing officer may postpone or continue a hearing.

C. At the beginning of the hearing, the hearing officer shall inform the person of the person's right to representation. Within thirty days after the hearing, the hearing officer shall inform the protestant in writing of the decision and of the protestant's right to, and the requirements for perfection of, an appeal from the decision to the district court and of the consequences of a failure to appeal. The written decision shall embody an order granting or denying the relief requested or granting such part of the relief requested, as appropriate.

D. If the protestant or the secretary of taxation and revenue is dissatisfied with the decision and order of the hearing officer, the party may appeal pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

E. No court of this state has jurisdiction to entertain a proceeding by any person in which the person calls into question the application to that person of any provision of the Motor Fuel Taxes Act, except as a consequence of the appeal by that person to the district court from the action and order of the hearing officer as provided for in this section.

F. Nothing in this section shall be construed to authorize a criminal proceeding or to authorize an administrative protest of the issuance of a subpoena or summons."

SECTION 65. Section 7-2-18.21 NMSA 1978 (being Laws 2007, Chapter 204, Section 7) is amended to read:

"7-2-18.21. CREDIT--BLENDED BIODIESEL FUEL.--

A. A taxpayer who is liable for payment of the special fuel excise tax [pursuant to Subsections A through D of Section 7-16A-2.1 NMSA 1978] and who files a New Mexico income tax return is eligible to claim a credit against income tax liability for each gallon of blended biodiesel fuel on which that person paid the special fuel excise tax in the taxable year, or would have paid the special fuel excise tax in the taxable year but for the [deductions] exemptions and credits allowed pursuant to [Subsections B through F of Section 7-16A-10 NMSA 1978] the Motor Fuel Taxes Act or the treaty exemption for north Atlantic treaty organization use. The credit shall be in the following amounts for the following periods:

(1) from January 1, 2007 until December 31, 2010, at a rate of three cents ($.03) per gallon;

(2) from January 1, 2011 until December 31, 2011, at a rate of two cents ($.02) per gallon; and

(3) from January 1, 2012 until December 31, 2012, at a rate of one cent ($.01) per gallon.

B. The tax credit provided by this section may not be claimed with respect to the same blended biodiesel fuel for which a credit has been claimed pursuant to the Corporate Income and Franchise Tax Act or for which a credit or refund has been claimed pursuant to Section 7-16A-13 NMSA 1978.

C. A taxpayer who otherwise qualifies for and claims a credit pursuant to this section for blended biodiesel fuel on which special fuel excise tax has been paid by a partnership or other business association of which the taxpayer is a member may claim a credit only in proportion to the taxpayer's interest in the partnership or business association. The total credit claimed in the aggregate by all members of the partnership or business association shall not exceed the amount of credit allowed pursuant to Subsection A of this section.

D. [A husband and wife] Married individuals who file separate returns for a taxable year in which they could have filed a joint return may each claim only one-half of the credit that would have been allowed on a joint return.

E. The tax credit provided by this section may only be applied against the income tax liability of the person who paid the special fuel excise tax on the blended biodiesel fuel with respect to which the credit is provided, or who would have paid the special fuel excise tax but for the deductions allowed pursuant to Subsections B through F of Section 7-16A-10 NMSA 1978 or the treaty exemption for north Atlantic treaty organization use. If the credit exceeds the person's income tax liability for the taxable year in which the credit is granted, the credit may be carried forward for five years.

F. A taxpayer claiming a credit pursuant to this section shall provide documentation of eligibility in form and content as determined by the department.

G. For the purposes of this section:

(1) "biodiesel" means renewable, biodegradable, monoalkyl ester combustible liquid fuel that is derived from agricultural plant oils or animal fats and that meets American society for testing and materials D 6751 standard specification for biodiesel B100 blend stock for distillate fuels;

(2) "blended biodiesel fuel" means a diesel fuel that contains at least two percent biodiesel; and

(3) "diesel fuel" means any diesel-engine fuel used for the generation of power to propel a motor vehicle."

SECTION 66. Section 7-2A-23 NMSA 1978 (being Laws 2007, Chapter 204, Section 8) is amended to read:

"7-2A-23. CREDIT--BLENDED BIODIESEL FUEL.--

A. A taxpayer that is liable for payment of the special fuel excise tax [pursuant to Subsections A through D of Section 7-16A-2.1 NMSA 1978] and that files a New Mexico corporate income tax return is eligible to claim a credit against corporate income tax liability for each gallon of blended biodiesel fuel on which that person paid the special fuel excise tax in the taxable year or who would have paid the special fuel excise tax in the taxable year but for the [deductions] exemptions and credits allowed pursuant to [Subsections B through F of Section 7-16A-10 NMSA 1978] the Motor Fuel Taxes Act or the treaty exemption for north Atlantic treaty organization use. The credit shall be in the following amounts for the following periods:

(1) from January 1, 2007 until December 31, 2010, at a rate of three cents ($.03) per gallon;

(2) from January 1, 2011 until December 31, 2011, at a rate of two cents ($.02) per gallon; and

(3) from January 1, 2012 until December 31, 2012, at a rate of one cent ($.01) per gallon.

B. The tax credit provided by this section may not be claimed with respect to the same blended biodiesel fuel for which a credit has been claimed pursuant to the Income Tax Act or for which a credit or refund has been claimed pursuant to Section 7-16A-13 NMSA 1978.

C. A taxpayer that otherwise qualifies for and claims a credit pursuant to this section for blended biodiesel fuel on which special fuel excise tax has been paid by a partnership or other business association of which the taxpayer is a member may claim a credit only in proportion to the taxpayer's interest in the partnership or business association. The total credit claimed in the aggregate by all members of the partnership or business association shall not exceed the amount of credit allowed pursuant to Subsection A of this section.

D. The tax credit provided by this section may only be applied against the corporate income tax liability of the person that paid the special fuel excise tax on the blended biodiesel fuel with respect to which the credit is provided or that would have paid the special fuel excise tax but for the deductions allowed pursuant to Subsections B through F of Section 7-16A-10 NMSA 1978 or the treaty exemption for north Atlantic treaty organization use. If the credit exceeds the person's corporate income tax liability for the taxable year in which the credit is granted, the credit may be carried forward for five years.

E. A taxpayer claiming a credit pursuant to this section shall provide documentation of eligibility in form and content as determined by the department.

F. For the purposes of this section:

(2) "blended biodiesel fuel" means a diesel fuel that contains at least two percent biodiesel; and

(3) "diesel fuel" means any diesel-engine fuel used for the generation of power to propel a motor vehicle."

SECTION 67. Section 7-9-26 NMSA 1978 (being Laws 1969, Chapter 144, Section 19, as amended) is amended to read:

"7-9-26. EXEMPTION--GROSS RECEIPTS AND COMPENSATING TAX-- FUEL.--Exempted from the gross receipts and compensating tax are the receipts from selling and the use of gasoline, special fuel or alternative fuel on which the tax imposed by [Section 7-13-3, 7-16-3 or 7-16A-3 NMSA 1978] the Motor Fuel Taxes Act or the Alternative Fuel Tax Act has been paid and not refunded."

SECTION 68. Section 7-9-79.2 NMSA 1978 (being Laws 2007, Chapter 204, Section 9) is amended to read:

"7-9-79.2. GROSS RECEIPTS TAX--COMPENSATING TAX--BIODIESEL BLENDING FACILITY TAX CREDIT.--

A. A taxpayer who is a rack operator as defined in the [Special Fuels Supplier Tax] Motor Fuel Taxes Act and who installs biodiesel blending equipment in property owned by the taxpayer for the purpose of establishing or expanding a facility to produce blended biodiesel fuel is eligible to claim a credit against gross receipts tax or compensating tax. The credit shall be an amount equal to thirty percent of the purchase cost of the equipment plus thirty percent of the cost of installing that equipment. The credit provided by this section may be referred to as the "biodiesel blending facility tax credit".

B. The biodiesel blending facility tax credit shall not exceed fifty thousand dollars ($50,000) with respect to equipment installed at any one facility.

C. Upon application from a taxpayer wishing to claim the biodiesel blending facility tax credit, the energy, minerals and natural resources department shall determine if the equipment for which the tax credit will be claimed meets the requirements of this section and if purchase and installation costs reported by the taxpayer are legitimate. Upon these determinations being made in favor of the taxpayer, the energy, minerals and natural resources department shall issue a dated certificate of eligibility containing this information and an estimate of the amount of the biodiesel blending facility tax credit for which the taxpayer is eligible.

D. To claim the biodiesel blending facility tax credit, the taxpayer shall provide to the taxation and revenue department the certificate of eligibility from the energy, minerals and natural resources department. Upon receipt of the certificate, the taxation and revenue department shall approve the claim for the credit if the total cumulative amount of approved claims for the credit for all taxpayers for the calendar year does not exceed one million dollars ($1,000,000). The department shall maintain a record of the cumulative amount of claims for the credit that have been approved and when it determines that this cumulative amount has reached one million dollars ($1,000,000), it shall cease approving any additional claims for the biodiesel blending facility tax credit.

E. If a taxpayer who has received the biodiesel blending facility tax credit ceases biodiesel blending without completing at least one hundred eighty days of availability of the facility within the first three hundred sixty-five days after the issuance of the certificate of eligibility from the energy, minerals and natural resources department, any amount of approved credit not applied against the taxpayer's gross receipts tax or compensating tax liability shall be extinguished. The taxpayer must amend the taxpayer's return, self-assess the tax owed and return any biodiesel blending facility tax credit received within four hundred twenty-five days of the date of issuance of the certificate of eligibility.

F. The tax credit provided by this section may only be applied against the taxpayer's gross receipts tax liability or compensating tax liability. If the credit exceeds the taxpayer's tax liability in the reporting period for which it is granted, the credit may be carried forward for four years from the date of the certificate of eligibility.

G. For the purposes of this section:

(2) "biodiesel blending equipment" means equipment necessary for the process of blending biodiesel with diesel fuel to produce blended biodiesel fuel;

(3) "blended biodiesel fuel" means a diesel fuel that contains at least two percent biodiesel; and

(4) "diesel fuel" means any diesel-engine fuel used for the generation of power to propel a motor vehicle."

SECTION 69. Section 7-13-3 NMSA 1978 (being Laws 1971, Chapter 207, Section 3, as amended) is amended to read:

"7-13-3. IMPOSITION AND RATE OF TAX--DENOMINATION AS "GASOLINE TAX".--

A. For the privilege of receiving gasoline in this state, there is imposed an excise tax at a rate provided in Subsection B of this section on each gallon of gasoline received in New Mexico.

B. The tax imposed by Subsection A of this section shall be [seventeen cents ($.17)] twenty-two cents ($.22) per gallon received in New Mexico.

C. The tax imposed by this section may be called the "gasoline tax"."

SECTION 70. Section 7-13A-2 NMSA 1978 (being Laws 1990, Chapter 124, Section 15, as amended) is amended to read:

"7-13A-2. DEFINITIONS.--As used in the Petroleum Products Loading Fee Act:

A. "department" means the taxation and revenue department, the secretary of taxation and revenue or any employee of the department exercising authority lawfully delegated to that employee by the secretary;

[B. "distributor" means any person registered or required to be registered as a rack operator or distributor for purposes of the Gasoline Tax Act and any person registered or required to be registered as a rack operator or special fuel supplier for purposes of the Special Fuels Supplier Tax Act;

C.] B. "gallon" means the quantity of liquid necessary to fill a standard United States gallon liquid measure, which is approximately 3.785 liters, or that same quantity adjusted to a temperature of sixty degrees Fahrenheit at the election of [any distributor] the taxpayer, but [a distributor] the taxpayer shall report on the same basis for a period of at least one year;

[D.] C. "load" means eight thousand gallons of petroleum product;

[E.] D. "loading" means the act of placing or causing to be placed any petroleum product that is produced, refined, manufactured, blended or compounded at a refinery in this state or stored at a pipeline terminal in this state into tank cars, tank trucks, tank wagons or other types of transportation equipment or into any tank or other container from which sales or deliveries not involving transportation are made;

[F.] E. "person" means an individual or any other legal entity, including any gas, water or electric utility owned or operated by a county, municipality or other political subdivision of the state. "Person" also means, to the extent permitted by law, any federal, state or other government or any department, agency or instrumentality of the state, county, municipality or any political subdivision thereof;

[G.] F. "petroleum product" means gasoline as defined in the Gasoline Tax Act and special fuel as defined in the Special Fuels Supplier Tax Act; [and

H.] G. "secretary" means, unless the context indicates another meaning, the secretary of taxation and revenue or the secretary's delegate;

H. "taxpayer" means a person subject to the taxes imposed by the Motor Fuel Taxes Act; and

I. "unobligated balance of the corrective action fund" means corrective action fund equity less all known or anticipated liabilities against the fund."

SECTION 71. Section 7-13A-3 NMSA 1978 (being Laws 1990, Chapter 124, Section 16, as amended) is amended to read:

"7-13A-3. IMPOSITION AND RATE OF FEE--DENOMINATION AS "PETROLEUM PRODUCTS LOADING FEE".--

A. [For the privilege of loading gasoline or special fuel from a rack at a refinery or pipeline terminal in this state into a cargo tank] In addition to the taxes imposed pursuant to the Motor Fuel Taxes Act, there is imposed on taxpayers subject to those taxes, a fee [on the distributor] at a rate provided in Subsection [C] B of this section on:

(1) each gallon of gasoline or special fuel loaded in New Mexico on which the petroleum products loading fee has not been previously paid; and

[B. For the privilege of importing gasoline or special fuel into this state for resale or consumption in this state, there is imposed a fee determined as provided in Subsection C of this section on] (2) each load of gasoline or special fuel imported into New Mexico for resale or consumption on which the petroleum products loading fee has not been previously paid. For the purposes of this [section] paragraph, "load" means eight thousand gallons of gasoline or special fuel. To determine how many loads a person is to report under the provisions of this section, the person shall divide by eight thousand the total gallons of gasoline and special fuel reported for the purposes of [Section 7-13-3 NMSA 1978 as adjusted under the provisions of Section 7-13-4 NMSA 1978 and the total gallons of special fuels received in New Mexico less any gallons exempted under Section 7-13A-4 NMSA 1978] the Motor Fuel Taxes Act. Loads shall be calculated to the nearest one-hundredth of a load.

[C.] B. The fee imposed by this section is and may be referred to as the "petroleum products loading fee" and shall be one hundred fifty dollars ($150) per load or whichever of the following applies:

(1) in the event the secretary of environment certifies that the unobligated balance of the corrective action fund at the end of the prior fiscal year equals or exceeds eighteen million dollars ($18,000,000), the fee shall be set at forty dollars ($40.00) per load;

(2) in the event the secretary of environment certifies that the unobligated balance of the corrective action fund at the end of the prior fiscal year exceeds twelve million dollars ($12,000,000) but is less than eighteen million dollars ($18,000,000), the fee shall be set at eighty dollars ($80.00) per load;

(3) in the event the secretary of environment certifies that the unobligated balance of the corrective action fund at the end of the prior fiscal year exceeds six million dollars ($6,000,000) but is less than twelve million dollars ($12,000,000), the fee shall be set at one hundred twenty dollars ($120) per load; and

(4) in the event the secretary of environment certifies that the unobligated balance of the corrective action fund at the end of the prior fiscal year is less than six million dollars ($6,000,000), the fee shall be set at one hundred fifty dollars ($150) per load.

[D.] C. The amount of the petroleum products loading fee set pursuant to Paragraph (1), (2), (3) or (4) of Subsection [C] B of this section shall be imposed on the first day of the month following expiration of ninety days after the end of the fiscal year for which the certification was made.

[E.] D. As used in this section, "unobligated balance of the corrective action fund" means corrective action fund equity less all known or anticipated liabilities against the fund."

SECTION 72. Section 7-13A-7 NMSA 1978 (being Laws 2015 (1st S.S.), Chapter 2, Section 20) is amended to read:

"7-13A-7. CLAIM FOR REFUND OF PETROLEUM PRODUCTS LOADING FEE ON PRODUCTS PREVIOUSLY LOADED FROM A SOURCE OTHER THAN A REFINER OR PIPELINE TERMINAL.--

A. Upon the submission of proof satisfactory to the department, a [distributor] taxpayer may claim, and the department may allow, a claim for refund of the petroleum products loading fee paid on petroleum products previously loaded in New Mexico from a source other than a refiner or pipeline terminal in this state and placed in a terminal from which it will be loaded into tank cars, tank trucks, tank wagons or other types of transportation equipment.

B. No person may submit claims for refund pursuant to this section more frequently than quarterly. No claim for refund may be submitted or allowed on less than one hundred gallons.

C. The department may prescribe the documents necessary to support a claim for refund pursuant to the provisions of this section."

SECTION 73. Section 7-16A-3 NMSA 1978 (being Laws 1992, Chapter 51, Section 3, as amended) is amended to read:

"7-16A-3. IMPOSITION AND RATE OF TAX--DENOMINATION AS SPECIAL FUEL EXCISE TAX.--

A. For the privilege of receiving or using special fuel in this state, there is imposed an excise tax at a rate provided in Subsection B of this section on each gallon of special fuel received in New Mexico.

B. The tax imposed by Subsection A of this section shall be [twenty-one cents ($.21)] twenty-six cents ($.26) per gallon of special fuel received or used in New Mexico.

C. The tax imposed by this section may be called the "special fuel excise tax"."

SECTION 74. Section 7-29A-5 NMSA 1978 (being Laws 1992, Chapter 38, Section 5) is amended to read:

"7-29A-5. SECRETARY OF TAXATION AND REVENUE APPROVAL--REFUND.--

A. The person responsible for paying the oil and gas severance tax on production from the enhanced recovery project shall not qualify to receive the recovered oil tax rate unless that person:

(1) applies to the secretary of taxation and revenue in the form and manner prescribed by the secretary for approval to pay the oil and gas severance tax on crude oil severed and saved from the enhanced recovery project at the recovered oil tax rate;

(2) includes the certifications from the division of approval and designation of the affected areas of the enhanced recovery project and of a positive production response from the enhanced recovery project; and

(3) provides all relevant material that the secretary of taxation and revenue considers necessary to administer the applicable provisions of the Enhanced Oil Recovery Act.

B. An approval of the secretary of taxation and revenue in accordance with Subsection A of this section shall be applicable to crude oil severed and sold from the enhanced recovery project on and after the first day of the month following the month in which the division certifies that a positive production response with respect to the enhanced recovery project has occurred. If the oil and gas severance tax is paid at a rate imposed in Paragraph (2) of Subsection A of Section 7-29-4 NMSA 1978 on crude oil severed and saved from the enhanced recovery project after the month in which the division certifies that a positive production response with respect to the enhanced recovery project has occurred, a claim for refund may be filed in accordance with Section 7-1-26 NMSA 1978 for the excess in tax over the amount due using the recovered oil tax rate. Notwithstanding the provisions of Subsection [E] G of Section 7-1-26 NMSA 1978, any such refund granted shall be made in the form of a credit against future oil and gas severance tax liabilities."

SECTION 75. Section 7-29B-6 NMSA 1978 (being Laws 1995, Chapter 15, Section 6, as amended) is amended to read:

"7-29B-6. QUALIFICATION FOR PRODUCTION RESTORATION INCENTIVE TAX EXEMPTION AND WELL WORKOVER AND STRIPPER WELL PROPERTY INCENTIVE TAX RATE--SECRETARY OF TAXATION AND REVENUE APPROVAL--REFUND.--

A. The person responsible for paying the oil and gas severance tax on natural gas or oil produced from a production restoration project shall qualify to receive a ten-year production restoration incentive tax exemption upon:

(1) application to the department in the form and manner prescribed by the department for approval for the ten-year production restoration incentive tax exemption;

(2) submission of the certification of approval from the division and designation of the natural gas or oil well as a production restoration project; and

(3) submission of any other relevant material that the secretary of taxation and revenue deems necessary to administer the applicable provisions of the Natural Gas and Crude Oil Production Incentive Act.

B. The person responsible for payment of the oil and gas severance tax on natural gas or oil produced from a well workover project shall qualify for the well workover incentive tax rate on all the natural gas or oil produced by that project upon:

(1) application to the department in the form and manner prescribed by the department for approval to apply the well workover incentive tax rate to the natural gas or oil produced from a well workover project;

(2) submission of the certification from the division of approval and designation of the natural gas or oil well as a well workover project; and

(3) any other relevant material that the department considers necessary to administer the applicable provisions of the Natural Gas and Crude Oil Production Incentive Act.

C. The person responsible for paying the oil and gas severance tax and the oil and gas emergency school tax on natural gas and crude oil produced from a stripper well property shall qualify to receive the stripper well property incentive tax rate for the fiscal year following certification by the division in the form and manner agreed to by the division and the department designating the property as a stripper well property. The division shall certify stripper well properties for calendar year 1998 no later than June 30, 1999 and no later than June 1 of each succeeding year for the preceding calendar year.

D. The production restoration incentive tax exemption shall apply to natural gas or oil produced from a production restoration project beginning the first day of the month following the date the division certifies that production has been restored and ending the last day of the tenth year of production following that date. The well workover incentive tax rate applies to the natural gas or oil produced from a well workover project beginning the first day of the month following the date the division certifies that the well workover project has been completed. The stripper well property incentive tax rates apply to the natural gas or oil produced from a stripper well property in the twelve months beginning May 1 prior to July 1 of the fiscal year to which the certification of the property as a stripper well property applies.

E. The person responsible for payment of the oil and gas severance tax on natural gas or oil production from an approved well workover project may file a claim for credit against current tax liability or for refund in accordance with Section 7-1-26 NMSA 1978 for taxes paid in excess of the amount due using the well workover incentive tax rate. Notwithstanding the provisions of Subsection [E] G of Section 7-1-26 NMSA 1978, any such refund granted shall be made in the form of a credit against any future oil and gas severance tax liabilities incurred by the taxpayer.

F. Well workover projects certified prior to July 1, 1999 shall be deemed to be approved and certified in accordance with the provisions of this 1999 act and natural gas or oil produced from those projects shall be eligible for the well workover incentive tax rate effective beginning July 1, 1999.

G. The secretary of taxation and revenue may adopt and promulgate rules to enforce the provisions of this section."

SECTION 76. Section 57-19-27 NMSA 1978 (being Laws 1993, Chapter 98, Section 3, as amended) is amended to read:

"57-19-27. DEFINITIONS.--As used in the Petroleum Products Standards Act:

A. "biodiesel" means a renewable, biodegradable, mono alkyl ester combustible liquid fuel that is derived from agricultural plant oils or animal fats and that meets American society for testing and materials specification for biodiesel fuel, B100, blend stock for distillate fuels;

B. "board" means the board of regents of New Mexico state university;

C. "dealer" means a dealer as defined by the [Special Fuels Supplier Tax] Motor Fuel Taxes Act;

D. "department" means the New Mexico department of agriculture;

E. "diesel fuel" means any diesel-engine fuel used for the generation of power to propel a motor vehicle;

F. "director" means the director of the New Mexico department of agriculture;

G. "distributor" means a distributor as defined by the [Gasoline Tax] Motor Fuel Taxes Act;

H. "lubricating oil" means any oil used to lubricate transmissions, gears or axles;

I. "motor fuel" means any liquid product used for the generation of power in an internal combustion engine, excluding liquified petroleum gases and aviation fuels;

J. "motor oil" means oil for use in lubricating internal combustion engines;

K. "person" means any natural person, firm, partnership, association or corporation;

L. "petroleum product" means motor fuel, kerosene, lubricating oil, motor oil, anti-freeze or brake fluid; and

M. "retailer" means any person who sells motor fuel and delivers the motor fuel into the supply tanks of motor vehicles."

SECTION 77. Section 65-1-2 NMSA 1978 (being Laws 1978, Chapter 19, Section 1, as amended) is amended to read:

"65-1-2. DEFINITIONS.--As used in the Motor Transportation Act:

A. "combination" means any connected assemblage of a motor vehicle and one or more semitrailers, trailers or semitrailers converted to trailers by means of a converter gear;

B. "combination gross vehicle weight" means the sum total of the gross vehicle weights of all units of a combination;

C. "commercial motor carrier vehicle" means a self-propelled or towed vehicle, other than special mobile equipment, used on public highways in commerce to transport passengers or property when the vehicle:

(1) is operated interstate and has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of four thousand five hundred thirty-six kilograms, or ten thousand one pounds or more; or is operated only in intrastate commerce and has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of twenty-six thousand one or more pounds;

(2) is designed or used to transport more than eight passengers, including the driver, and is used to transport passengers for compensation;

(3) is designed or used to transport more than fifteen passengers, including the driver, and is not used to transport passengers for compensation; or

(4) is used to transport hazardous materials of the type or quantity requiring placarding under rules prescribed by applicable federal or state law;

D. "converter gear" means any assemblage of one or more axles with a fifth wheel mounted thereon, designed for use in a combination to support the front end of a semitrailer but not permanently attached thereto. A "converter gear" shall not be considered a vehicle as that term is used in Chapter 66 NMSA 1978, but its weight shall be included in declared gross weight;

E. "declared gross weight" means maximum gross vehicle weight or combination gross vehicle weight at which a vehicle or combination will be operated during the registration period as declared by the registrant for registration and fee purposes. The vehicle or combination shall have only one "declared gross weight" for all operating considerations;

F. "department", without modification, means the department of public safety, the secretary of public safety or any employee of the department exercising authority lawfully delegated to that employee by the secretary;

G. "director" means the secretary;

H. "division" means the New Mexico state police division of the department;

I. "evidence of registration" means documentation issued by the taxation and revenue department identifying a motor carrier vehicle as being registered with New Mexico or documentation issued by another state pursuant to the terms of a multistate agreement on registration of vehicles to which this state is a party identifying a motor carrier vehicle as being registered with that state; provided that evidence of payment of the weight distance tax and permits obtained under either the [Special Fuels Supplier Tax] Motor Fuel Taxes Act or Trip Tax Act are not "evidence of registration";

J. "field enforcement" or "in the field" means patrolling of the highway, stopping of commercial motor carrier vehicles or establishing ports of entry and roadblocks for the purpose of checking motor carriers and includes similar activities;

K. "freight trailer" means any trailer, semitrailer or pole trailer drawn by a truck tractor or road tractor and any trailer, semitrailer or pole trailer drawn by a truck that has a gross vehicle weight of more than twenty-six thousand pounds, but the term does not include house trailers, trailers of less than one-ton carrying capacity used to transport animals or fertilizer trailers of less than three thousand five hundred pounds empty weight;

L. "gross vehicle weight" means the weight of a vehicle without load plus the weight of any load thereon;

M. "motor carrier" means any person that owns, controls, operates or manages any motor vehicle with gross vehicle weight of twelve thousand pounds or more that is used to transport persons or property on the public highways of this state;

N. "motor vehicle" means any vehicle or device that is propelled by an internal combustion engine or electric motor power that is used or may be used on the public highways for the purpose of transporting persons or property and includes any connected trailer or semitrailer;

O. "one-way rental fleet" means two or more vehicles each having a gross vehicle weight of under twenty-six thousand one pounds and rented to the public without a driver;

P. "person" means any individual, estate, trust, receiver, cooperative association, club, corporation, company, firm, partnership, joint venture, syndicate or other association; "person" also means, to the extent permitted by law, any federal, state or other governmental unit or subdivision or an agency, department or instrumentality; "person" also includes an officer or employee of a corporation, a member or employee of a partnership or any individual who, as such, is under a duty to perform any act in respect of which a violation occurs;

Q. "properly registered" means bearing the lawfully issued and currently valid evidence of registration of this or another jurisdiction, regardless of the owner's residence, except in those cases where the evidence has been procured by misrepresentation or fraud;

R. "public highway" means every way or place generally open to the use of the public as a matter of right for the purpose of vehicular travel, even though it may be temporarily closed or restricted for the purpose of construction, maintenance, repair or reconstruction;

S. "secretary" means the secretary of public safety and, except for the purposes of Section 65-1-33 NMSA 1978, also includes a deputy secretary and any division director delegated by the secretary;

T. "state" or "jurisdiction" means a state, territory or possession of the United States, the District of Columbia, the commonwealth of Puerto Rico, a foreign country or a state or province of a foreign country; and

U. "utility trailer" means any trailer, semitrailer or pole trailer and includes house trailers that exceed neither eight feet in width nor forty feet in length, but does not include freight trailers, trailers of less than one-ton carrying capacity used to transport animals or fertilizer trailers of less than three thousand five hundred pounds empty weight."

SECTION 78. Section 65-1-28 NMSA 1978 (being Laws 1987, Chapter 128, Section 1, as amended) is amended to read:

"65-1-28. PAYMENT BY CREDIT CARD--OPTIONAL SERVICES--FEES--APPROPRIATIONS.--

A. Notwithstanding any other provision of law, the department is authorized to enter into agreements with financial institutions and credit card companies under which the department may accept payment by credit card from motor carriers of the taxes, fees or other charges due pursuant to the Motor Transportation Act, Motor Vehicle Code, Trip Tax Act, [Special Fuels Tax] Motor Fuel Taxes Act with regard to the special fuel excise tax or Weight Distance Tax Act. Any fee payable to the financial institution or credit card company for a payment by credit card authorized under this section may be deducted from the proceeds of the taxes, fees or other charges paid on a pro-rata basis prior to any other distribution of the proceeds required by law. The necessary portion of the proceeds of the taxes, fees and other charges collected under this subsection is [hereby] appropriated for the purpose of paying the fee payable to the financial institution or credit card company.

B. The secretary is authorized to establish by regulation fees to cover the expense of providing additional services for the convenience of the motoring public. Any service established for which a fee is adopted under this section shall be optional, with the fee not being charged to any person not taking advantage of the service. Amounts collected pursuant to this subsection are appropriated to the department for the purpose of defraying the expense of providing the service."

SECTION 79. Section 65-1-28.1 NMSA 1978 (being Laws 1992, Chapter 106, Section 12) is amended to read:

"65-1-28.1. SPECIAL METHODS OF PAYMENT.--The department may require the motor carriers specified in this section to make payment of taxes, fees and other charges due under the Motor Transportation Act, Motor Vehicle Code, Trip Tax Act, [Special Fuels Tax] Motor Fuel Taxes Act or Weight Distance Tax Act by credit card, certified check or other method of guaranteed payment. The provisions of this section apply to any motor carrier whose check in payment of any amount due under any act administered by the department has been dishonored upon presentment on two or more occasions within the previous two years."

SECTION 80. Section 66-1-4.21 NMSA 1978 (being Laws 1998 (1st S.S.), Chapter 10, Section 9) is amended to read:

"66-1-4.21. ADDITIONAL DEFINITIONS.--As used in the Motor Vehicle Code:

A. "evidence of registration" means any documentation issued by the department identifying a motor carrier vehicle as being registered with New Mexico or documentation issued by another state pursuant to the terms of a multistate agreement on registration of vehicles to which this state is a party identifying a motor carrier vehicle as being registered with that state; provided that evidence of payment of the weight distance tax and permits obtained under either the [Special Fuels Supplier Tax] Motor Fuel Taxes Act or Trip Tax Act are not "evidence of registration";

B. "fleet" means one or more motor carrier vehicles, either commercial or noncommercial but not mixed, that are operated in this and at least one other jurisdiction;

C. "motor carrier" means any person or firm that owns, controls, operates or manages any motor vehicle with gross vehicle weight of twelve thousand pounds or more that is used to transport persons or property on the public highways of this state;

D. "one-way rental fleet" means two or more vehicles each having a gross vehicle weight of under twenty-six thousand one pounds and rented to the public without a driver;

E. "preceding year" means a period of twelve consecutive months fixed by the department, which period is within the sixteen months immediately preceding the commencement of the registration or license year for which proportional registration is sought. The department, in fixing that period, shall make it conform to the terms, conditions and requirements of any applicable agreement or arrangement for the proportional registration of vehicles;

F. "properly registered" means bearing the lawfully issued and currently valid evidence of registration of this or another jurisdiction, regardless of the owner's residence, except in those cases where the evidence has been procured by misrepresentation or fraud; and

G. "public highway" means every way or place generally open to the use of the public as a matter of right for the purpose of vehicular travel, even though it may be temporarily closed or restricted for the purpose of construction, maintenance, repair or reconstruction."

SECTION 81. Section 66-3-1.3 NMSA 1978 (being Laws 1983, Chapter 142, Section 3, as amended) is amended to read:

"66-3-1.3. UNREGISTERED FOREIGN COMMERCIAL MOTOR CARRIER VEHICLE OPERATIONS.--

A. As used in this section:

(1) "foreign commercial motor carrier vehicle" means a commercial motor carrier vehicle as defined in Subsection C of Section 65-1-2 NMSA 1978 that is titled and licensed in a jurisdiction other than New Mexico;

(2) "registrant" means the person accepting financial responsibility for payment of all fees and taxes that become due as a result of vehicle operations. Financial responsibility is assigned to the person named on the registration application;

(3) "short-term" means for a period of more than forty-eight hours and less than one hundred eighty days;

(4) "short-term registration" means meeting all registration, licensing, posting of security and taxation requirements as provided in this section; and

(5) "unregistered" means a foreign commercial motor carrier vehicle not registered with the department under the provisions of Section [65-1-12] 66-3-1.1 NMSA 1978 and Subsection B of Section 66-3-5 NMSA 1978 [and, if applicable, the tax-excluded user permit provisions of Section 7-16-6 NMSA 1978].

B. The owner of a foreign commercial motor carrier vehicle that is to be operated within the state on a short-term basis shall comply with the short-term registration provisions as provided in this section before operating the vehicle upon the highways of New Mexico. If an owner or operator of a foreign commercial motor carrier vehicle does not comply with the short-term registration provisions as provided in this section, the owner or operator shall:

(1) stop at a port of entry and pay all applicable fees and taxes on a trip basis in accordance with normal fee and tax schedules applicable to unregistered vehicles; or

(2) register with the department in accordance with all registration and permit requirements as specified by this section.

C. Any owner or operator electing to register a foreign commercial motor carrier vehicle with the department on a short-term basis shall meet the following requirements before operating that vehicle upon the highways of New Mexico:

(1) file with the department a short-term registration application that provides the following information for each commercial motor carrier vehicle to be operated under this section:

(a) base state;

(b) unit number;

(d) vehicle serial number;

(e) declared gross weight;

(f) type of fuel;

(g) name and complete address of the registrant;

(h) individual vehicle highway miles and miles per gallon for each vehicle registered under this section; and

(i) proof of financial responsibility as required in the Motor Transportation Act;

(2) remit with the application the registration fees as specified in Subsection B of Section 66-6-4 NMSA 1978; and

(3) file with the application a cash security in the amount of three times the estimated use fee and special [fuels] fuel excise tax due at the current tax rates.

D. Upon receipt of [an] the application, fees and security pursuant to Subsection C of this section, the department shall issue to the applicant a short-term registration plate and registration document for each foreign commercial motor carrier vehicle. The registration plate shall display the expiration date of the short-term registration period and shall be affixed to the front passenger windshield of the foreign commercial motor carrier vehicle, and the registration document shall be carried in the vehicle during the period of operation in New Mexico. The department shall provide to the applicant weight distance and special [fuels] fuel excise tax reporting forms on which the applicant shall report and pursuant to which the applicant shall pay weight distance and special [fuels] fuel excise taxes upon actual miles operated and gallons consumed, at the rates and in the manner established by the Weight Distance Tax Act and the [Special Fuels Tax] Motor Fuel Taxes Act. The department may assign the one-way haul-use fee rate pursuant to Section 7-15A-6 NMSA 1978, provided that the conditions of that section are met by the applicant.

E. The failure of any owner to comply with the requirements of this section is a misdemeanor, and the department or its authorized agent may detain any vehicle until all fees and taxes are paid and all requirements of this section are met.

F. Within twenty days after the conclusion of the short-term registration period, the registrant shall file with the department the required tax report along with payment of all weight distance tax and special [fuels] fuel excise tax due. Upon verification of accurate reporting and payment, the department shall refund the security previously filed by the registrant.

G. In the event the registrant fails to submit the required tax report within twenty days as specified in Subsection F of this section, the registrant shall forfeit the full amount of security required under this section.

H. Any foreign commercial motor carrier vehicle to be operated in excess of one hundred eighty days shall comply with all registration requirements for commercial motor carrier vehicles titled and licensed in New Mexico."

SECTION 82. TEMPORARY PROVISION.--The provisions of the Gasoline Tax Act and the Special Fuels Supplier Tax Act in effect prior to July 1, 2018 shall apply to gasoline and special fuel received, as that term is used in those acts, prior to July 1, 2018.

SECTION 83. DELAYED REPEAL.--Sections 7-1-6.44, 7-13-1 through 7-13-3.2, 7-13-3.5, 7-13-4, 7-13-4.4 through 7-13-8, 7-13-10 through 7-13-12, 7-13-17, 7-13-18, 7-16A-1 through 7-16A-6, 7-16A-9 through 7-16A-16, 7-16A-19 through 7-16A-21 and 67-3-8.1 NMSA 1978 (being Laws 2003, Chapter 150, Section 2, Laws 1971, Chapter 207, Sections 1 and 2, Laws 1999, Chapter 190, Section 2, Laws 1971, Chapter 207, Section 3, Laws 1979, Chapter 166, Sections 7 and 8, Laws 1997, Chapter 192, Section 3, Laws 1991, Chapter 9, Section 32, Laws 2000, Chapter 50, Section 1, Laws 1971, Chapter 207, Sections 5 and 6, Laws 2005, Chapter 109, Sections 4 and 5, Laws 1971, Chapter 207, Sections 7 and 8, Laws 1977, Chapter 342, Section 5, Laws 1971, Chapter 207, Sections 10 and 11, Laws 1998, Chapter 44, Sections 2 and 3, Laws 1992, Chapter 51, Sections 1 and 2, Laws 1997, Chapter 192, Section 6, Laws 1992, Chapter 51, Sections 3 through 5, Laws 1997, Chapter 192, Section 14, Laws 1992, Chapter 51, Sections 6 and 9, Laws 2005, Chapter 109, Sections 12 through 14, Laws 2013, Chapter 109, Section 3, Laws 1992, Chapter 51, Sections 10 through 13, Laws 2001, Chapter 43, Section 2, Laws 1992, Chapter 51, Sections 14 and 15, Laws 2007, Chapter 110, Section 4, Laws 1992, Chapter 51, Sections 16, 19 and 20, Laws 2005, Chapter 109, Section 15, Laws 1995, Chapter 16, Section 15 and Laws 2003, Chapter 150, Section 3, as amended) are repealed effective July 1, 2018.

SECTION 84. EFFECTIVE DATE.--

A. The effective date of the provisions of Sections 45 through 54, 69 and 73 of this act is July 1, 2017.

B. The effective date of the provisions of Sections 1 through 44, 55 through 68, 70 through 72 and 74 through 83 of this act is July 1, 2018.

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