142.821. The exemption for motor fuel sold within an Indian reservation or Indian country under section 142.815 shall be administered as follows:
(1) At the discretion of the director the exemption from taxation set forth in this section shall be administered as set out in either paragraph (a) or (b) of this subdivision. In the event a court of competent jurisdiction should strike down, enjoin, or issue any form of temporary restraining order against either paragraph (a) or (b) of this subdivision, then the remaining paragraph shall immediately become effective and shall be administered by the director. The two alternative methods are as follows:
(a) The tribal member shall apply for a refund with respect to the motor fuel purchased in this state for consumption within Indian country in this state as to which the tax imposed by this chapter has previously been paid and no refund previously issued; or
(b) The director shall determine, by the procedure set out herein, the annual probable demand for motor fuel for consumption by tribal members within Indian country for each ultimate vendor location owned and operated by a federally recognized Indian tribe on Indian country. Tribally owned and operated ultimate vendors shall be permitted a monthly allocation equal to one-twelfth the annual probable demand. No motor fuel shall be removed from a terminal or imported into this state tax free for sale at a tribally owned and operated location except pursuant to this section. The director shall issue exemption certificate coupons equal to the probable demand to each federally recognized tribe which owns and operates an ultimate vendor location in Indian country. The tribally owned and operated ultimate vendor shall transmit the coupons to its distributor who shall grant the ultimate vendor a credit in the amount of the tax exemption equal to the amount which would be due pursuant to section 142.803 absent the coupons. The distributor shall transmit said used coupons up its chain of distribution to the supplier charged with precollection of tax in accordance with this chapter who has granted the same tax exemption to the distributor. The supplier shall then claim the coupons as a credit against the tax liability otherwise owing on motor fuel removed from its terminals;
(2) The probable demand used in the method described in paragraph (b) of subdivision (1) of this section shall be determined in the first instance by the director by multiplying the number of members of the tribe which owns and operates an ultimate vendor location in Indian country who live within the service area of that location by the average per capita motor fuel consumption for residents of this state by a ratio whose numerator is the amount of motor fuel consumed in nonhighway uses (not on state maintained highways) and whose denominator is the amount of that motor fuel consumed in this state;
(3) In determining the number of members of the tribe living within* the service area, the director may rely upon information including, but not limited to:
(a) Verified information voluntarily submitted by the affected tribe;
(b) Data derived from the most recent U.S. decennial census; and
(c) Data derived from the U.S. Bureau of Indian Affairs;
(4) The service area of a tribally owned and operated ultimate vendor location shall be presumed to be a radius around the location with a diameter of:
(a) Ten miles in counties whose population exceeds three hundred fifty thousand; and
(b) Twenty-five miles in counties whose population does not exceed three hundred fifty thousand.
An affected tribe may rebut this presumption by competent evidence in a proceeding to adjust the probable demand determination pursuant to subdivision (7) of this subsection;
(5) In determining the per capita consumption of motor fuel and the ratio of nonhighway use of fuel to that consumed the director may rely upon information including, but not limited to:
(a) Filings with the director regarding total fuels removed from terminals versus the amount used upon highways in this state;
(b) Fuel consumption reports issued by the Federal Highway Administration; and
(c) Energy consumption reports issued by the U.S. Energy Information Service;
(6) The director may adjust his determination of probable demand periodically at his discretion, but not less often than upon receipt of a new federal decennial census;
(7) Should any affected federally recognized Indian tribe wish to contest the director's determination of probable demand, it may do so before the administrative hearing commission. At such hearing the tribe shall have the right to submit witnesses and evidence and shall have the burden of proof by a preponderance of the evidence to establish error in the director's determination and by establishing the tribe's own calculation. At the conclusion of such hearing, the administrative law judge shall prepare findings of fact, conclusions of law and an order which shall be subject to any and all rights of appeal enjoyed by the director or any other taxpayers. In such a hearing the affected tribe may introduce testimony under oath or other competent evidence to establish:
(a) The number of its tribal members living within the service area of a tribally owned and operated ultimate vendor location;
(b) The actual radius of the service area of the location, if different from those distances presumed in subdivision (4) of this section;
(c) Per capita motor fuel consumption of tribal members living within the service area if different from that calculated by the director in accordance with subdivision (5) of this section; or
(d) The ratio of nonhighway to highway use fuels within the service area if different from that calculated by the director under subdivision (5) of this section;
(8) Should the director determine that an affected tribe or its suppliers have been violating or evading its determination of probable demand hereunder or securing or selling untaxed motor fuel to consumers other than members of the affected tribe, the director may, after notice and hearing, cancel the tax exemption coupons granted to the tribe and prohibit removal of tax-free motor fuel from a terminal or import into this state for delivery to the tribally owned and operated ultimate vendor locations. Upon such action, the tribal members must use the method provided in subdivision (1) of this section to obtain refunds, no further coupons shall be provided to the affected tribe, and the suppliers shall not be permitted to claim a credit upon receipt of the coupons.
(L. 1998 S.B. 619)Effective 1-1-99
*Word "with" appears in original rolls.
Missouri General Assembly