0001| SENATE BILL 75 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| PHIL A. GRIEGO | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO TAXATION; AMENDING THE GASOLINE TAX ACT TO CHANGE | 0012| AND CLARIFY WHEN GASOLINE IS RECEIVED FOR PURPOSES OF THE | 0013| IMPOSITION OF THE GASOLINE TAX; ALLOWING A CREDIT AGAINST THE | 0014| GASOLINE TAX FOR SIMILAR TAX IMPOSED BY AND PAID TO AN INDIAN | 0015| NATION, TRIBE OR PUEBLO ON THE SAME GASOLINE; AUTHORIZING | 0016| CERTAIN COOPERATIVE AGREEMENTS WITH INDIAN NATIONS, TRIBES OR | 0017| PUEBLOS; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978. | 0018| | 0019| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0020| Section 1. Section 7-13-2 NMSA 1978 (being Laws 1971, | 0021| Chapter 207, Section 2, as amended) is amended to read: | 0022| "7-13-2. DEFINITIONS.--As used in the Gasoline Tax Act: | 0023| A. "aviation gasoline" means gasoline sold for use | 0024| in aircraft propelled by engines other than turbo-prop or jet- | 0025| type engines; | - 1 - 0001| B. "department" means the taxation and revenue | 0002| department, the secretary of taxation and revenue or any | 0003| employee of the department exercising authority lawfully | 0004| delegated to that employee by the secretary; | 0005| C. "distributor" means any person, not including|| | 0006| the United States of America or any of its agencies except to | 0007| the extent now or hereafter permitted by the constitution and | 0008| laws thereof, who receives gasoline in this state. | 0009| "Distributor" shall be construed so that a person | 0010| simultaneously may be both a distributor and a retailer or | 0011| importer; | 0012| D. "drip gasoline" means a combustible hydrocarbon | 0013| liquid formed as a product of condensation from either | 0014| associated or nonassociated natural or casing head gas and | 0015| that remains a liquid at room temperature and pressure; | 0016| E. "ethanol blended fuel" means gasoline | 0017| containing a minimum of ten percent by volume of denatured | 0018| ethanol, of at least one hundred ninety-nine proof, exclusive | 0019| of denaturants; | 0020| F. "fuel supply tank" means any tank or other | 0021| receptacle in which or by which fuel may be carried and | 0022| supplied to the fuel-furnishing device or apparatus of the | 0023| propulsion mechanism of a motor vehicle when the tank or | 0024| receptacle either contains gasoline or gasoline is delivered | 0025| into it; | - 2 - 0001| G. "gallon" means the quantity of liquid necessary | 0002| to fill a standard United States gallon liquid measure or that | 0003| same quantity adjusted to a temperature of sixty degrees | 0004| fahrenheit at the election of any distributor, but a | 0005| distributor shall report on the same basis for a period of at | 0006| least one year; | 0007| H. "gasoline" means any flammable liquid | 0008| hydrocarbon used primarily as fuel for the propulsion of motor | 0009| vehicles, motorboats or aircraft except for diesel engine | 0010| fuel, kerosene, liquefied petroleum gas, compressed or | 0011| liquefied natural gas and products specially prepared and sold | 0012| for use in aircraft propelled by turbo-prop or jet-type | 0013| engines; | 0014| I. "government-licensed vehicle" means a motor | 0015| vehicle lawfully displaying a registration plate, as defined | 0016| in the Motor Vehicle Code, issued by the United States or any | 0017| state, identifying the motor vehicle as belonging to the | 0018| United States or any of its agencies or instrumentalities or | 0019| an Indian nation, tribe or pueblo or any of its political | 0020| subdivisions, agencies or instrumentalities; | 0021| J. "highway" means every road, highway, | 0022| thoroughfare, street or way, including toll roads, generally | 0023| open to the use of the public as a matter of right for the | 0024| purpose of motor vehicle travel regardless of whether it is | 0025| temporarily closed for the purpose of construction, | - 3 - 0001| reconstruction, maintenance or repair; | 0002| K. "motor vehicle" means any self-propelled | 0003| vehicle or device that is either subject to registration under | 0004| Section 66-3-1 NMSA 1978 or used or that may be used on the | 0005| public highways in whole or in part for the purpose of | 0006| transporting persons or property and includes any connected | 0007| trailer or semitrailer; | 0008| L. "person" means an individual or any other | 0009| entity, including, to the extent permitted by law, any | 0010| federal, state or other government or any department, agency, | 0011| instrumentality or political subdivision of any federal, state | 0012| or other government; | 0013| M. "rack operator" means the operator of a | 0014| refinery in this state or the owner of gasoline stored at a | 0015| pipeline terminal in this state; | 0016| ~[N. "received" means||: | 0017| (1) | 0018| (a) gasoline that is produced, refined, | 0019| manufactured, blended or compounded at a refinery in this | 0020| state or stored at a pipeline terminal in this state by any | 0021| person is "received" by such person when it is loaded there | 0022| into tank cars, tank trucks, tank wagons or other types of | 0023| transportation equipment or when it is placed into any tank or | 0024| other container from which sales or deliveries not involving | 0025| transportation are made;|| | - 4 - 0001| (b) when, however, such gasoline is | 0002| delivered at the refinery or pipeline terminal to another | 0003| person registered as a distributor under the Gasoline Tax Act, | 0004| then it is "received" ||by the distributor to whom it is so | 0005| delivered;|| | 0006| (c)|| when such gasoline is delivered | 0007| at the refinery or pipeline terminal to another person not | 0008| registered as a distributor under the Gasoline Tax Act for the | 0009| account of a person that is so registered, ||it is "received" | 0010| ||by the distributor for whose account it is delivered; and | 0011| (d) when gasoline is shipped to a | 0012| distributor, or for the account of a distributor, away from | 0013| the refinery or pipeline terminal, it is "received" by the | 0014| distributor where it is unloaded; | 0015| (2) notwithstanding the provisions of | 0016| Paragraph (1) of this subsection, when gasoline is shipped or | 0017| delivered from a refinery or pipeline terminal to another | 0018| refinery or pipeline terminal, such gasoline is not "received" | 0019| by reason of such shipment or delivery; | 0020| (3) any product other than gasoline that is | 0021| blended to produce gasoline other than at a refinery or | 0022| pipeline terminal in this state is "received" by a person who | 0023| is the owner thereof at the time and place the blending is | 0024| completed; and | 0025| (4) except as otherwise provided, gasoline is | - 5 - 0001| "received" at the time and place it is first unloaded in this | 0002| state and by the person who is the owner thereof immediately | 0003| preceding the unloading, unless the owner immediately after | 0004| the unloading is a registered distributor, in which case such | 0005| registered distributor is considered as having received the | 0006| gasoline; | 0007| O.]~ |N.| "retailer" means a person who sells | 0008| gasoline generally in quantities of thirty-five gallons or | 0009| less and delivers such gasoline into the fuel supply tanks of | 0010| motor vehicles. "Retailer" shall be construed so that a | 0011| person simultaneously may be both a retailer and a distributor | 0012| or wholesaler; | 0013| ~[P.]~ |O.| "secretary" means the secretary of | 0014| taxation and revenue or the secretary's delegate; | 0015| ~[Q.]~ |P.| "taxpayer" means a person required to | 0016| pay gasoline tax; | 0017| ~[R.]~ |Q.| "unloaded" means removal of gasoline | 0018| from tank cars, tank trucks, tank wagons or other types of | 0019| transportation equipment into a nonmobile container at the | 0020| place at which the unloading takes place; and | 0021| ~[S.]~ |R.| "wholesaler" means a person who is not | 0022| a distributor and who sells gasoline in quantities of thirty- | 0023| five gallons or more and does not deliver such gasoline into | 0024| the fuel supply tanks of motor vehicles. "Wholesaler" shall | 0025| be construed so that a person simultaneously may be a | - 6 - 0001| wholesaler and a retailer." | 0002| Section 2. A new section of the Gasoline Tax Act is | 0003| enacted to read: | 0004| "[|NEW MATERIAL|] WHEN GASOLINE IS RECEIVED.-- | 0005| A. Gasoline that is produced, refined, | 0006| manufactured, blended or compounded at a refinery in this | 0007| state or stored at a pipeline terminal in this state by any | 0008| person is received by such person when it is loaded there into | 0009| tank cars, tank trucks, tank wagons or other types of | 0010| transportation equipment or when it is placed into any tank or | 0011| other container from which sales or deliveries not involving | 0012| transportation are made; however: | 0013| (1) when such gasoline is delivered at the | 0014| refinery or pipeline terminal to another person registered as | 0015| a distributor under the Gasoline Tax Act, then it is received | 0016| at that time and place by the distributor to whom it is so | 0017| delivered; and | 0018| (2) when such gasoline is delivered at the | 0019| refinery or pipeline terminal to another person not registered | 0020| as a distributor under the Gasoline Tax Act for the account of | 0021| a person that is so registered, then it is received at that | 0022| time and place by the distributor for whose account it is | 0023| delivered. | 0024| B. Any product other than gasoline that is blended | 0025| to produce gasoline other than at a refinery or pipeline | - 7 - 0001| terminal in this state is received by a person who is the | 0002| owner thereof at the time and place the blending is completed. | 0003| C. Gasoline imported into New Mexico by any means | 0004| other than in the fuel supply tank of a motor vehicle or by | 0005| pipeline is received at the time and place it is imported into | 0006| this state. The person who owns the gasoline at the time of | 0007| importation receives the gasoline and shall pay the gasoline | 0008| tax. | 0009| D. If gasoline is received within the exterior | 0010| boundaries of an Indian reservation or pueblo grant in this | 0011| state and the person receiving the gasoline is immune from | 0012| state taxation, then the gasoline is also received when the | 0013| gasoline is transported off that reservation or pueblo grant | 0014| by any means other than in the fuel supply tank of a motor | 0015| vehicle. Any person who owns the gasoline, other than in the | 0016| fuel supply tank of a motor vehicle, after the transportation | 0017| off that reservation or pueblo grant receives the gasoline and | 0018| shall pay the gasoline tax unless the gasoline tax has been | 0019| paid by a previous owner. | 0020| E. If gasoline is received outside the exterior | 0021| boundaries of an Indian reservation or pueblo grant in this | 0022| state but still within Indian country, as defined by federal | 0023| law, of that reservation or pueblo grant and the person | 0024| receiving the gasoline is immune from state taxation, then the | 0025| gasoline is also received when the gasoline is transported off | - 8 - 0001| that Indian country by any means other than in the fuel supply | 0002| tank of a motor vehicle. Any person who owns the gasoline, | 0003| other than in the fuel supply tank of a motor vehicle, after | 0004| the transportation off that Indian country receives the | 0005| gasoline and shall pay the gasoline tax unless the gasoline | 0006| tax has been paid by a previous owner." | 0007| Section 3. A new section of the Gasoline Tax Act is | 0008| enacted to read: | 0009| "[|NEW MATERIAL|] CREDIT--GASOLINE TAX--TAX PAID TO | 0010| INDIAN NATION, TRIBE OR PUEBLO.-- | 0011| A. A credit may be taken against gasoline tax due | 0012| pursuant to the Gasoline Tax Act on gasoline on which a | 0013| qualifying gasoline or similar tax has been levied by an | 0014| Indian nation, tribe or pueblo in this state and paid by the | 0015| taxpayer to that Indian nation, tribe or pueblo. The amount | 0016| of the credit shall be equal to the lesser of the amount that | 0017| would be due at fifty percent of the tax rate imposed by the | 0018| Indian nation, tribe or pueblo on the gasoline or the amount | 0019| that would be due at fifty percent of the tax rate imposed by | 0020| the Gasoline Tax Act on the same gasoline. | 0021| B. A qualifying gasoline or similar tax levied by | 0022| an Indian nation, tribe or pueblo shall be limited to a tax | 0023| that: | 0024| (1) is substantially similar to the tax | 0025| imposed by the Gasoline Tax Act; | - 9 - 0001| (2) does not discriminate among persons or | 0002| transactions based on membership in the Indian nation, tribe | 0003| or pueblo; | 0004| (3) is levied on the taxable event at a rate | 0005| not greater than seventeen cents ($.17) per gallon; | 0006| (4) provides a credit against the Indian | 0007| nation's, tribe's or pueblo's tax equal to the lesser of the | 0008| amount that would be due at fifty percent of the tax rate | 0009| imposed by the Indian nation, tribe or pueblo on the gasoline | 0010| or the amount that would be due at fifty percent of the tax | 0011| rate imposed by the Gasoline Tax Act; | 0012| (5) is subject to a cooperative agreement | 0013| between the Indian nation, tribe or pueblo and the secretary | 0014| pursuant to the Taxation and Revenue Department Act and in | 0015| effect at the time of the taxable transaction; and | 0016| (6) produces revenues to be used within the | 0017| exterior boundaries of the Indian reservation or pueblo grant | 0018| or land held in trust for the benefit of the nation, tribe or | 0019| pueblo for the same purposes for which the state road fund is | 0020| used." | 0021| Section 4. A new section of the Taxation and Revenue | 0022| Department Act is enacted to read: | 0023| "[|NEW MATERIAL|] COOPERATIVE AGREEMENTS WITH INDIAN | 0024| NATION, TRIBE OR PUEBLO.-- | 0025| A. The secretary may enter into cooperative | - 10 - 0001| agreements with an Indian nation, tribe or pueblo for the | 0002| exchange of information and the reciprocal joint or common | 0003| enforcement, administration, collection, remittance and audit | 0004| of gasoline tax revenues of the party jurisdictions. | 0005| B. Money collected by the department on behalf of | 0006| an Indian nation, tribe or pueblo in accordance with an | 0007| agreement entered into pursuant to this section is not money | 0008| of this state and shall be collected and disbursed in | 0009| accordance with the terms of the agreement, notwithstanding | 0010| any other provision of law. | 0011| C. The secretary is empowered to promulgate such | 0012| rules and regulations and to establish such procedures as the | 0013| secretary deems appropriate for the collection and | 0014| disbursement of funds due an Indian nation, tribe or pueblo | 0015| for the receipt of money collected by the nation, tribe or | 0016| pueblo for the account of this state under the terms of a | 0017| cooperative agreement entered into under the authority of this | 0018| section, including procedures for identification of taxpayers | 0019| or transactions that are subject only to the taxing authority | 0020| of the Indian nation, tribe or pueblo; taxpayers or | 0021| transactions that are subject only to the taxing authority of | 0022| this state; and taxpayers or transactions that are subject to | 0023| the taxing authority of both party jurisdictions. | 0024| D. Nothing in an agreement entered into pursuant | 0025| to this section shall be construed as authorizing this state | - 11 - 0001| or an Indian nation, tribe or pueblo to tax persons or | 0002| transactions that federal law prohibits that government from | 0003| taxing or as authorizing a state, tribal or pueblo court to | 0004| assert jurisdiction over persons who are not otherwise subject | 0005| to that court's jurisdiction or as affecting any issue of the | 0006| respective civil or criminal jurisdictions of this state or | 0007| the Indian nation, tribe or pueblo. Nothing in an agreement | 0008| entered into pursuant to this section shall be construed as an | 0009| assertion or an admission by either this state or the Indian | 0010| nation, tribe or pueblo that the taxes of one have precedence | 0011| over the taxes of the other when the person or transaction is | 0012| subject to the taxing authority of both governments. An | 0013| agreement entered into pursuant to this section shall be | 0014| construed solely as an agreement between the two party | 0015| governments and shall not alter or affect the government-to- | 0016| government relations between this state and any other Indian | 0017| nation, tribe or pueblo." | 0018| Section 5. EFFECTIVE DATE.--The effective date of the | 0019| provisions of this act is July 1, 1998. | 0020|  |