January 23, 2012
HOUSE BILL No. 1128
_____
DIGEST OF HB 1128
(Updated January 17, 2012 11:37 am - DI 77)
Citations Affected: IC 6-2.5; IC 15-15.
Synopsis: Corn marketing council. Repeals provisions concerning
deductions to retail merchants under the E 85 reimbursement program.
Amends the definition of "producer" for purposes of the corn marketing
laws. Adds requirement that a producer has had an assessment in the
previous two years to qualify as a member on the corn marketing
council (council). Changes the date that a petition for candidacy to the
council may be filed. Provides that the council operates on a fiscal year.
(Current law requires the council to operate on a state fiscal year.)
Establishes a formula to determine the maximum administrative
expenses of the council. Provides that the cost of processing refunds
and applying for grants are not administrative expenses. Requires a
first purchaser of corn to remit the assessment when payment is
received. Provides that a first purchaser that is not subject to
assessment is to sign and date an exemption form. Establishes an
assessment refund schedule based upon the amount owed. Makes a
technical change.
Effective: July 1, 2012.
Lehe
January 9, 2012, read first time and referred to Committee on Agriculture and Rural
Development.
January 23, 2012, amended, reported _ Do Pass.
January 23, 2012
Second Regular Session 117th General Assembly (2012)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in
this style type, and deletions will appear in
this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in
this style type. Also, the
word
NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in
this style type or
this style type reconciles conflicts
between statutes enacted by the 2011 Regular Session of the General Assembly.
HOUSE BILL No. 1128
A BILL FOR AN ACT to amend the Indiana Code concerning
agriculture and animals.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 6-2.5-7-5; (12)HB1128.1.1. -->
SECTION 1. IC 6-2.5-7-5, AS AMENDED BY P.L.148-2009,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 5. (a) Each retail merchant who dispenses
gasoline or special fuel from a metered pump shall, in the manner
prescribed in IC 6-2.5-6, report to the department the following
information:
(1) The total number of gallons of gasoline sold from a metered
pump during the period covered by the report.
(2) The total amount of money received from the sale of gasoline
described in subdivision (1) during the period covered by the
report.
(3) That portion of the amount described in subdivision (2) which
represents state and federal taxes imposed under this article,
IC 6-6-1.1, or Section 4081 of the Internal Revenue Code.
(4) The total number of gallons of special fuel sold from a
metered pump during the period covered by the report.
(5) The total amount of money received from the sale of special
fuel during the period covered by the report.
(6) That portion of the amount described in subdivision (5) that
represents state and federal taxes imposed under this article,
IC 6-6-2.5, or Section 4041 of the Internal Revenue Code.
(7) The total number of gallons of E85 sold from a metered pump
during the period covered by the report.
(b) Concurrently with filing the report, the retail merchant shall
remit the state gross retail tax in an amount which equals six and
fifty-four hundredths percent (6.54%) of the gross receipts, including
state gross retail taxes but excluding Indiana and federal gasoline and
special fuel taxes, received by the retail merchant from the sale of the
gasoline and special fuel that is covered by the report and on which the
retail merchant was required to collect state gross retail tax. The retail
merchant shall remit that amount regardless of the amount of state
gross retail tax which the merchant has actually collected under this
chapter. However, the retail merchant is entitled to deduct and retain
the amounts prescribed in subsection (c), IC 6-2.5-6-10 and
IC 6-2.5-6-11.
(c) A retail merchant is entitled to deduct from the amount of state
gross retail tax required to be remitted under subsection (b) the amount
determined under STEP THREE of the following formula:
STEP ONE: Determine:
(A) the sum of the prepayment amounts made during the
period covered by the retail merchant's report; minus
(B) the sum of prepayment amounts collected by the retail
merchant, in the merchant's capacity as a qualified distributor,
during the period covered by the retail merchant's report.
STEP TWO: Subject to subsections (d) and (f), for qualified
reporting periods beginning after June 30, 2009, and ending
before July 1, 2020, determine the product of:
(A) eighteen cents ($0.18); multiplied by
(B) the number of gallons of E85 sold at retail by the retail
merchant during the period covered by the retail merchant's
report.
STEP THREE: Add the amounts determined under STEPS ONE
and TWO.
For purposes of this section, a prepayment of the gross retail tax is
presumed to occur on the date on which it is invoiced.
(d) The total amount of deductions allowed under subsection (c)
STEP TWO may not exceed the amount of money that the budget
agency determines is available in the retail merchant E85 deduction
reimbursement fund established under IC 15-15-12-30.5 for the
deductions for all retail merchants in a particular qualified reporting
period. A retail merchant is not required to apply for an allocation of
deductions under subsection (c) STEP TWO. Before August 1 of each
year, the budget agency shall estimate whether the amount of
deductions from the immediately preceding qualified reporting period
that are subject to reimbursement under IC 15-15-12-30.5(f) and the
deductions expected to be reported under subsection (c) STEP TWO
for the qualified reporting periods beginning after December 31 and
ending before April 1 of the following year will exceed the amount of
money available in the retail merchant E85 deduction reimbursement
fund for the deductions. If the budget agency determines that the
amount of money in the retail merchant E85 deduction reimbursement
fund is insufficient to cover the amount of the deductions expected to
be reported, the budget agency shall publish in the Indiana Register a
notice that the deduction program under subsection (c) STEP TWO is
suspended with respect to the qualified reporting periods occurring in
the following calendar year and that no deductions will be granted for
retail transactions occurring in the qualified reporting periods occurring
in the following calendar year.
(e) As used in this section, "qualified reporting period" refers to a
reporting period beginning after December 31 and ending before April
1 of each year.
(f) The budget agency may suspend the deduction program under
subsection (c) STEP TWO for a particular year at any time during a
qualified reporting period if the budget agency determines that the
amount of money in the retail merchant E85 deduction reimbursement
fund and the amount of money that will be transferred to the fund on
July 1 will not be sufficient to reimburse the deductions expected to
occur before the deduction program for the year ends on March 31. The
budget agency shall immediately provide notice to the participating
retail merchants of the decision to suspend the deduction program for
that year.
SOURCE: IC 6-2.5-7-6; (12)HB1128.1.2. -->
SECTION 2. IC 6-2.5-7-6 IS REPEALED [EFFECTIVE JULY 1,
2012].
Sec. 6. (a) If the deduction under section 5(c) of this chapter
exceeds the amount of gross retail tax required to be remitted under
section 5(b) of this chapter, the retail merchant is entitled to a credit.
The credit shall be used as follows:
(1) First, the credit shall be applied against gross retail and use
tax liability of the retail merchant that is required to be remitted
under IC 6-2.5-6.
(2) Second, any amount remaining shall be applied against the
gasoline tax liability of the retail merchant, as determined under
IC 6-6-1.1, excluding any liability for gasoline delivered to a
taxable marine facility.
A retail merchant may file a claim for a refund instead of taking a
credit or for a refund of any excess tax payment remaining after the
credits allowed by this section. In addition, a retail merchant may file
a claim for a refund under section 12 of this chapter.
(b) A retail merchant that is entitled to a refund under this section
must file a claim for the refund on the form approved by the
department and must include any supporting documentation reasonably
required by the department. If a retail merchant files a completed
refund claim form that includes all supporting documentation, the
excess tax payment that is not refunded within ninety (90) days accrues
interest as provided in IC 6-8.1-9-2.
(c) Before the fifth day of each month, the department shall
determine and notify the treasurer of state of the amount of credits
applied during the preceding month against the gasoline tax under this
section. The treasurer of state shall transfer from the general fund:
(1) to the highway, road, and street fund, twenty-five percent
(25%) of the amount set forth in the department's notice; and
(2) to the motor fuel tax fund of the motor vehicle highway
account, seventy-five percent (75%) of the amount set forth in the
department's notice.
SOURCE: IC 6-2.5-7-12; (12)HB1128.1.3. -->
SECTION 3. IC 6-2.5-7-12 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 12. (a) Except as
provided in subsection (b), a distributor that prepays the state gross
retail tax under this chapter shall separately state the amount of tax
prepaid on the invoice the distributor issues to its purchaser or
recipient. The purchaser or recipient shall pay to the distributor an
amount equal to the prepaid tax.
(b) A distributor that:
(1) prepays the state gross retail tax under this chapter;
(2) is a retail merchant; and
(3) sells gasoline that is exempt from the gross retail tax, as
evidenced by a purchaser's exemption certificate issued by the
department;
may not require the exempt purchaser to pay the gross retail taxes
prepaid in the gasoline sold to the exempt purchaser. A distributor that
has prepaid gross retail taxes and has not been reimbursed because the
gasoline is sold to an exempt purchaser may file a claim for a refund,
(in addition to any claim for a refund under section 6 of this chapter),
if the amount of unreimbursed prepaid gross retail taxes exceeds five
hundred dollars ($500). A claim for a refund must be on the form
approved by the department and include all supporting documentation
reasonably required by the department. If a distributor files a completed
refund claim form that includes all supporting documentation, the
department shall authorize the auditor of state to issue a warrant for the
refund.
SOURCE: IC 15-15-12-13; (12)HB1128.1.4. -->
SECTION 4. IC 15-15-12-13, AS ADDED BY P.L.2-2008,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 13. As used in this chapter, "producer" means a
person engaged in the business of producing and marketing corn in
Indiana under:
(1) the producer's own name; or
(2) the name of an entity in which the producer has
ownership.
SOURCE: IC 15-15-12-17; (12)HB1128.1.5. -->
SECTION 5. IC 15-15-12-17, AS ADDED BY P.L.2-2008,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 17. (a) The Indiana corn marketing council is
established. The council is a public body corporate and politic, and
though it is separate from the state, the exercise by the council of its
powers constitutes an essential governmental function. The council
may sue and be sued and plead and be impleaded.
(b) The council consists of seventeen (17) voting and eight (8) ex
officio, nonvoting members. The elected members from districts listed
under section 21(a) of this chapter must: be:
(1) be registered as voters in Indiana;
(2) be at least eighteen (18) years of age; and
(3) be producers; and
(4) have an assessment on corn under section 32 of this
chapter made during the previous two (2) years.
(c) Each elected member of the council must reside in the district
identified in section 21(a) of this chapter from which the member is
elected.
(d) Each member of the council is entitled to reimbursement for
traveling expenses and other expenses actually incurred in connection
with the member's duties, as provided in the state travel policies and
procedures established by the Indiana department of administration and
approved by the budget agency. However, council members are not
entitled to a salary or per diem.
SOURCE: IC 15-15-12-23; (12)HB1128.1.6. -->
SECTION 6. IC 15-15-12-23, AS ADDED BY P.L.2-2008,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 23. (a) The ballot for the election of a district
council member must include the name of each producer who:
(1) meets the qualifications set forth in section 17(b) of this
chapter; and
(2) files with the council, before not later than June 30 of the
year of the election, a petition in support of candidacy signed by
ten (10) other producers who reside in the district.
(b) The council shall provide petition forms upon request and shall
make forms available:
(1) at cooperative extension service offices located in the district;
and
(2) via the council's Internet web site.
(c) The council shall allow a producer to request a ballot through the
council's Internet web site.
(d) A name other than the names of the producers who have
qualified under this section may not be printed on the ballot by the
council. All names on the ballot must be listed in alphabetical order
based on the producer's surname.
(e) The council shall require each producer who submits a ballot to
provide a separate attestation that the person is an eligible producer.
SOURCE: IC 15-15-12-29; (12)HB1128.1.7. -->
SECTION 7. IC 15-15-12-29, AS AMENDED BY P.L.148-2009,
SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 29. (a) The council shall pay all expenses incurred
under this chapter with money from the assessments remitted to the
council under this chapter.
(b) The council may invest all money the council receives under this
chapter, including gifts or grants that are given for the express purpose
of implementing this chapter, in the same way allowed by law for
public funds.
(c) The council may expend money from assessments and from
investment income not needed for expenses for market development,
promotion, and research.
(d) The council may not use money received, collected, or accrued
under this chapter for any purpose other than the purposes authorized
by this chapter. The amount of money expended on administering this
chapter in a state the council's fiscal year may not exceed ten percent
(10%) of the total average amount of assessments, grants, and gifts
received by the council in that state fiscal year. as calculated under
subsection (e).
(e) The council shall determine the amount that it may expend
to administer this chapter, using the following formula:
STEP ONE: Determine the amount of assessments, grants,
and gifts received by the council in each of the preceding five
(5) fiscal years beginning with the immediately preceding
fiscal year.
STEP TWO: Determine the average annual amount of
assessments, grants, and gifts received by the council in each
fiscal year using three (3) of the five (5) fiscal years described
in STEP ONE after excluding the two (2) years in which the
amount of assessments, grants, and gifts received by the
council were the highest and lowest totals.
STEP THREE: Divide the amount in STEP TWO by ten (10).
The amount in STEP THREE is the maximum amount that the
council may expend on administering this chapter for the current
fiscal year.
(f) The cost of processing refunds and applying for grants is not
an administrative expense under this section.
SOURCE: IC 15-15-12-30.5; (12)HB1128.1.8. -->
SECTION 8. IC 15-15-12-30.5 IS REPEALED [EFFECTIVE JULY
1, 2012]. Sec. 30.5. (a) The retail merchant E85 deduction
reimbursement fund is established. The fund consists of:
(1) assessments transferred by the council for deposit in the fund
under section 32.5 of this chapter;
(2) gifts; and
(3) grants.
(b) Except as provided in subsection (g), money in the fund may
only be used for the purposes described in subsection (d).
(c) On May 1, the budget agency shall determine the sum of all
retail merchant deductions allowed under IC 6-2.5-7-5(d) in the
immediately preceding qualified reporting period (as defined in
IC 6-2.5-7-5(e)).
(d) The budget agency shall transfer the amount determined under
subsection (c) from the fund for deposit. The amount transferred under
this subsection shall be deposited in the same manner as state gross
retail and use taxes are required to be deposited under IC 6-2.5-10-1.
(e) The treasurer of state shall invest the money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested. Interest that accrues
from these investments shall be deposited in the fund.
(f) If the amount of money in the fund on May 1 is insufficient to
reimburse the state for all retail merchant deductions allowed under
IC 6-2.5-7-5(d) in the immediately preceding qualified reporting period
(as defined in IC 6-2.5-7-5(e)), the budget agency shall deduct from
any amounts transferred for deposit into the fund in the remainder of
that calendar year an amount sufficient to cure the insufficiency. The
budget agency shall transfer any amounts deducted under this
subsection for deposit in the same manner as state gross retail and use
taxes are required to be deposited under IC 6-2.5-10-1.
(g) If the retail merchant E85 deduction program is terminated, any
balance in the fund must be transferred to the council.
SOURCE: IC 15-15-12-32; (12)HB1128.1.9. -->
SECTION 9. IC 15-15-12-32, AS ADDED BY P.L.2-2008,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 32. (a) An assessment of one-half cent ($0.005)
per bushel must be collected on all corn sold in Indiana. The
assessment may be imposed and collected on a quantity of corn only
once and must be collected by the first purchaser. A buyer of corn who
purchases more than one hundred thousand (100,000) bushels annually
for the buyer's own use as seed or feed is responsible only for collecting
checkoff assessments on corn purchases made after the buyer exceeds
the one hundred thousand (100,000) bushel threshold and becomes a
first purchaser. The rate of the assessment imposed by this section may
be changed only by the general assembly.
(b) The first purchaser of a quantity of corn shall deduct the
assessment on the corn from the money to be paid to the producer
based on the sale of the corn. A first purchaser shall accumulate
assessments collected under this subsection throughout each of the
following periods:
(1) January, February, and March.
(2) April, May, and June.
(3) July, August, and September.
(4) October, November, and December.
(c) At the end of each period, the first purchaser shall remit to the
council all assessments collected during the period. A first purchaser
who remits all assessments collected during a period within thirty (30)
days after the end of the period is entitled to retain three percent (3%)
of the total of the assessments as a handling fee.
(d) The assessment on the sale of the corn must occur when the
payment for the corn is received by the producer.
(e) A first purchaser who is not subject to the assessment under
this section shall sign and date an exemption form. The council
shall prepare the exemption form.
SOURCE: IC 15-15-12-32.5; (12)HB1128.1.10. -->
SECTION 10. IC 15-15-12-32.5 IS REPEALED [EFFECTIVE
JULY 1, 2012]. Sec. 32.5. (a) On July 1, 2010, the council shall
transfer five hundred thousand dollars ($500,000) to the budget agency
for deposit in the retail merchant E85 deduction reimbursement fund
established by section 30.5 of this chapter.
(b) On July 1, 2011, and each year thereafter, the council shall
transfer to the budget agency for deposit in the retail merchant E85
deduction reimbursement fund established by section 30.5 of this
chapter an amount equal to the difference between:
(1) five hundred thousand dollars ($500,000); minus
(2) the balance remaining in the fund on June 30.
However, the amount transferred under this subsection may not exceed
five hundred thousand dollars ($500,000).
SOURCE: IC 15-15-12-33; (12)HB1128.1.11. -->
SECTION 11. IC 15-15-12-33, AS AMENDED BY P.L.148-2009,
SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 33. (a) If a producer has sold corn and the state
assessment was deducted from the sale price of the corn, the producer
may secure a refund equal to the amount deducted upon filing a written
application.
(b) A producer's application for a refund under this section must be
made to the council not more than one hundred eighty (180) days after
the state assessment is deducted from the sale price of the producer's
corn.
(c) The council shall provide application forms to a first purchaser
for purposes of this section upon request and make application forms
available on the council's Internet web site.
Before July 1, 2009, a first
purchaser shall provide an application form to each producer along
with each settlement form that shows a deduction. After June 30, 2009,
A first purchaser shall make application forms available in plain view
at the first purchaser's place of business.
(d) Proof that an assessment has been deducted from the sale price
of a producer's corn must be attached to each application for a refund
submitted under this section by a producer. The proof that an
assessment was deducted may be in the form of a duplicate or an
original copy of the purchase invoice or settlement sheet from the first
purchaser. The refund form and proof of assessment may be mailed or
faxed to the council. The refund form must clearly state how to request
a refund, the address where the form may be mailed, and the fax
number where the form may be faxed.
(e) If a refund is due under this section, the council shall remit the
refund to the producer
as follows:
(1) For:
(A) refunds of more than twenty-five dollars ($25); or
(B) multiple refunds that total more than twenty-five
dollars ($25);
not later than thirty (30) days after the date the producer's
completed application and proof of assessment are received.
(2) For refunds of twenty-five dollars ($25) or less:
(A) on March 31 if the producer's completed application
and proof of assessment are received before March 1; or
(B) on September 30 if the producer's completed
application and proof of assessment are received on or
after March 1 and before September 1.