Sec. 35. (a) The tax on special fuel received by a licensed supplier in Indiana that is imposed by section 28 of this chapter shall be collected and remitted to the state by the supplier who receives taxable gallons in accordance with subsection (b).

     (b) On or before the fifteenth day of each month, licensed suppliers and licensed permissive suppliers shall make an estimated payment of all taxes imposed on transactions that occurred during the previous calendar month equal to:

(1) one hundred percent (100%) of the amount remitted by the licensed supplier or licensed permissive supplier for the month preceding the previous calendar month; or

(2) ninety-five percent (95%) of the amount actually due and payable by the licensed supplier or licensed permissive supplier for the previous month.

Any remaining tax imposed on transactions occurring during a calendar month shall be due and payable on or before the twentieth day of the following month, except as provided in subsection (i). Underpayments of estimated taxes due and owing the department are not subject to a penalty under section 63(a) of this chapter.

     (c) A supplier who sells special fuel shall collect from the purchaser the special fuel tax imposed under section 28 of this chapter. At the election of an eligible purchaser, the seller shall not require a payment of special fuel tax from the purchaser at a time that is earlier than the date on which the tax is required to be remitted by the supplier under subsection (b). This election shall be subject to a condition that the eligible purchaser’s remittances of all amounts of tax due the seller shall be paid by electronic funds transfer on or before the due date of the remittance by the supplier to the department, and the eligible purchaser’s election under this subsection may be terminated by the seller if the eligible purchaser does not make timely payments to the seller as required by this subsection.

     (d) As used in this section, “eligible purchaser” means a person who has authority from the department to make the election under subsection (c) and includes every person who is licensed and in good standing as a special fuel dealer or special fuel user, as determined by the department, as of July 1, 1993, who has purchased a minimum of two hundred forty thousand (240,000) taxable gallons of special fuel each year in the preceding two (2) years, or who otherwise meets the financial responsibility and bonding requirements of subsection (e).

     (e) Each purchaser that desires to make an election under subsection (c) shall present evidence of the purchaser’s eligible purchaser status to the purchaser’s seller. The department shall determine whether the purchaser is an eligible purchaser. The department may require a purchaser that pays the tax to a supplier to file with the department a surety bond payable to the state, upon which the purchaser is the obligor or other financial security, in an amount satisfactory to the department. The department may require that the bond indemnify the department against bad debt deductions claimed by the supplier under subsection (g).

     (f) The department shall have the authority to rescind a purchaser’s eligibility and election to defer special fuel tax remittances upon a showing of good cause, including failure to make timely payment under subsection (c), by sending written notice to all suppliers and eligible purchasers. The department may require further assurance of the purchaser’s financial responsibility, or may increase the bond requirement for that purchaser, or any other action that the department may require to ensure remittance of the special fuel tax.

     (g) In computing the amount of special fuel tax due, the supplier and permissive supplier shall be entitled to a deduction from the tax payable the amount of tax paid by the supplier that has become uncollectible from a purchaser. The department shall adopt rules establishing the evidence a supplier must provide to receive the deduction. The deduction shall be claimed on the first return following the date of the failure of the purchaser if the payment remains unpaid as of the filing date of that return or the deduction shall be disallowed. The claim shall identify the defaulting purchaser and any tax liability that remains unpaid. If a purchaser fails to make a timely payment of the amount of tax due, the supplier’s deduction shall be limited to the amount due from the purchaser, plus any tax that accrues from that purchaser for a period of ten (10) days following the date of failure to pay. No additional deduction shall be allowed until the department has authorized the purchaser to make a new election under subsection (e). The department may require the deduction to be reported in the same manner as prescribed in Section 166 of the Internal Revenue Code.

     (h) The supplier and each reseller of special fuel is considered to be a collection agent for this state with respect to that special fuel tax, which shall be set out on all invoices and billings as a separate line item.

     (i) Except as provided in subsection (e), the tax imposed by section 28 of this chapter on special fuel imported from another state shall be paid by the licensed importer who has imported the nonexempt special fuel not later than three (3) business days after the earlier of:

(1) the time that the nonexempt special fuel entered into Indiana; or

(2) the time that a valid import verification number was assigned by the department under rules and procedures adopted by the department.

However, if the importer and the importer’s reseller have previously entered into a tax precollection agreement as described in subsection (j), and the agreement remains in effect, the supplier with whom the agreement has been made shall become jointly liable with the importer for the tax and shall remit the tax to the department on behalf of the importer. This subsection does not apply to an importer with respect to imports in vehicles with a capacity of not more than five thousand four hundred (5,400) gallons.

     (j) The department, a licensed importer, the reseller to a licensed importer, and a licensed supplier or permissive supplier may jointly enter into an agreement for the licensed supplier or permissive supplier to precollect and remit the tax imposed by this chapter with respect to special fuel imported from a terminal or refinery outside of Indiana in the same manner and at the same time as the tax would arise and be paid under this chapter if the special fuel had been received by the licensed supplier or permissive supplier at a terminal or refinery in Indiana. If the supplier is also the importer, the agreement shall be entered into between the supplier and the department. However, any licensed supplier or permissive supplier may make an election with the department to treat all out-of-state terminal or refinery removals with an Indiana destination as shown on the terminal-issued or refinery-issued shipping paper as if the removals were received by the supplier in Indiana pursuant to section 28 of this chapter and subsection (a), for all purposes. In this case, the election and notice of the election to a supplier’s customers shall operate instead of a three (3) party precollection agreement. The department may impose requirements reasonably necessary for the enforcement of this subsection.

     (k) Each licensed importer who is liable for the tax imposed by this chapter on nonexempt special fuel imported by a fuel transport truck having less than five thousand four hundred (5,400) gallons capacity, for which tax has not previously been paid to a supplier, shall remit the special fuel tax for the preceding month’s import activities with the importer’s monthly report of activities. A licensed importer shall be allowed to retain two-thirds (2/3) of the collection allowance provided for in section 37(a) of this chapter for the tax timely remitted by the importer directly to the state, subject to the same pass through provided for in section 37(a) of this chapter.

     (l) A licensed importer shall be allowed to retain two-thirds (2/3) of the amount allowed in section 37(a) of this chapter of the tax timely remitted by the licensed importer directly to the state, subject to the same pass through provided for in section 37(a) of this chapter.

As added by P.L.277-1993(ss), SEC.44. Amended by P.L.18-1994, SEC.27; P.L.61-1996, SEC.2; P.L.65-1997, SEC.1; P.L.218-2017, SEC.41.