Term "Distributor" as used in Liquid Fuels Tax Act

64 Pa. D. & C.2d 793

• Court: Pennsylvania Department of Justice
• Decided: April 11, 1974
• Docket: Official opinion no. 20
• Status: Published

Opinion

PACKEL, Attorney General,

You have requested our opinion with regard to whether the definition of the term “distributor” as it pertains to the Liquid Fuels Tax Act of May 21, 1931, P. L. 149, 72 PS §§2611a, et seq., may be used as the definition of “distributor” as said term relates to the Fuel Use Tax Act of January 14, 1952, P. L. (1951) 1965, 72 PS §§2614.1, et seq., for the purpose of collection of the latter tax. It is our opinion that the term “distributor” does not have the same meaning in both of the above mentioned statutes, since each refers to different operations as they relate to the application of the respective statutes.

The Act of May 21, 1931, P. L. 149, sec. 1, et seq. 72 PS §2611a, et seq., entitled the Liquid Fuels Tax Act, imposes taxes on certain liquid fuels “used or sold and delivered by distributors within this Commonwealth”: 72 PS §261 Id. The act directs that distributors of the fuels subject to taxation are responsible for paying the taxes: 72 PS §2611e. Generally, the act defines “distributor” as any person who sells or delivers the. subject fuels within the Commonwealth or who imports same into the Commonwealth for his or her own use or sale and delivery: 72 PS §2611b. Each distributor is required to register with the Department of Revenue and to file monthly reports setting forth the number of gallons of liquid fuels subject to taxation under the act that it has delivered: 72 PS §261 If. The act makes it clear that distributors and distributors only are to pay the Liquid Fuels Tax.

The Act of January 14, 1952, P. L. 1965, sec. 1, et seq., 72 PS §§2614.1, et seq., entitled the Fuel Use Tax Act, imposes taxes on all combustible gases and liquids that are not subject to taxation under the Liquid Fuels Tax Act, supra

*: 72 PS §§2614.2 and 2614.4. The Fuel Use Tax Act directs that “dealer-users,” as defined in the act, are responsible for the payment of this tax: 72 PS §2614.5. All “dealer-users” are required to file monthly reports with regard to the amount of fuel they have used: 72 PS §2614.6. “Dealer-user” is defined in the Fuel Use Tax Act as:

“[A]ny person who delivers or places fuels into the fuel supply tanks or other fueling receptacles or devices of an aircraft or aircraft engine or of a motor vehicle, or who uses fuels within the meaning of the word use’ as defined in this section”: 72 PS §2614.2.

The term “use” as defined by the act means:

“ ‘Use’ shall mean and include (a) the importation into this Commonwealth of fuels in the fuel supply tanks or other fueling receptacles or devices of a motor vehicle in excess of fifty (50) gallons, and (b) the delivery or placing of fuels into the fuel supply tanks or other fueling receptacles or devices or an aircraft or aircraft engine or of a motor vehicle in this Commonwealth for use in whole or part for the generation of power in the aircraft or aircraft engine or in whole or in part for the generation of power to propel such motor vehicle on the public highways of this Commonwealth”: 72 PS §2614.2. (Italics supplied.)

When both definitions are read together, it is clear that a “dealer-user” as contemplated by the Fuel Use Tax Act, may either be one who sells or delivers the subject fuel, or the ultimate consumer, depending on the circumstances of “use” as defined by the act.

Accordingly, it is clear that the Fuels Use Tax Act and the Liquid Fuels Tax Act differ at the point of determining who is responsible for the payment or collection of the tax, even though they are similarly structured. It is apparent that the General Assembly intended the term “dealer-user” to have a broader scope of application than “distributor” since the definition includes not only “distributors” (as defined in the Liquid Fuels Tax Act), but also intermediaries and ultimate consumers, depending upon which of them has used the subject fuel within the definition of “use.” Hence, the term “distributor” as defined in the Liquid Fuels Tax Act is of no benefit for purposes of collection of the Fuel Use Tax.

Therefore, it is our opinion, and you are hereby advised, that the term “distributor” as defined in the Liquid Fuels Tax Act has no application to the collection of the Fuel Use Tax.

Generally, the liquid fuels tax is imposed on liquid fuels which have a “flash” point of 200 degrees fahrenheit or less and the fuels use tax is imposed on liquid fuels having a flash point in excess of 200 degrees fahrenheit.