OFFICIAL OPINION No. 20

OFFICIAL OPINION No. 20 F11cl Use Tax A ct- Li<1uid Fuels Ta.r A ct- Def initiu 11 of Distributor 1. The term "~i stributor" as defined in the Liquid Fuels Tax Act, 72 P.S. § 26lla et seq. has a different mean mg than "distributor" as it pertains to the Fuel Use Tax Act, 72 P.S. § 2614.1 et seq. 2. The term "dealer user" as defined in the Fuel Use Tax Act has a broader scope of ap~h cll;tio~ than "distributor" (as defined in the Liquid Fuels Tax Act), since the defini twn mdudes not .only " di strib~to rs" (as defined in the Liquid Fuels Tax Act), but also mtermed1ar1es and ultimate consumers, depending upon which of them has used the subject fuel within the definition of "use." 3. The term "distributor" as defined in the Liquid Fuels Tax Act is of no benefi t for purposes of collection of the Fuel Use Tax. Honorable Vincent X. Yakowicz Secretary of Revenue Harrisburg, Pennsylvania Dear Secretary Y akowicz: Harrisburg, Pa. April 11, 1974 You have requested our or.inion with regard to whether the definition of the term "distributor" as it pertains to the Liquid Fuels Tax Act, 72 P.S. §261la et seq. may be used as the definition of "distributor" as said term relates to the Fuel Use Tax Act, 72 P.S. §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, 72 P.S. §261la et seq. entitled the Liquid Fuels Tax Act, imposes taxes on certain liquid fuels" .. . used or sold and delivered by distributors within the Com- monwealth." 72 P.S. §261ld. The Act directs that distributors of the fuels subject to taxation are responsible for paying the taxes. 72 P.S. §261le. Generally, the Act defines "distributor" as any per- son who sells or delivers the subject fuels within the Com- monwealth or who imports same into the Commonwealth for his or her own use or sale and delivery. 72 P.S. §261lb. Each distributor is required to register with the Department of Revenue and to file monthly reports setting forth the number of gallons of liguid fuels subject to taxation under the act that it has delivered. 72 P.S. §2611f. 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, 72 P.S. §2614.1 et seq. entitled the Fuel Use Tax Act, imposes a tax on all combustible gases and liquids that are not subject to taxation under the Liquid 70 OPINIONS OF THE ATTORNEY GENERAL Fuels Tax Act supra. 1 72 P.S. §§2614.2 and 2614.4. The Fuel Use Tax Act direc'ts that "dealer-users,'_' as defined in the Act, are responsible for the payment of this tax. 72 P.S. §2614.5. All "dealer-users" are required to file monthly reports with regard to the amount of fuel they have used. 72 P.S. §2614.6. "Dealer-user" is defined in the Fuel Use Tax as: " ... any 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 P.S. §2614.2 The term "use" is defined by the Act as: "'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 of 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 vehi- cle on the public highways of this Commonwealth." (Emphasis supplied). 72 P.S. §2614.2. 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 con- sumer, depending on the circumstances of "use" as defined by the Act. Accordingly, it is clear that the Fuels Use Tax Act and the Li- quid 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 als<? 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. Sincerely yours, Walter Roy Mays, III Deputy Attorney General Israel Packel Attorney General 1. Generally, the Li quid Fuels Tax is imposed on liquid fuels which have a "flash" point of 200 degrees fah.renheit or less a nd the Fuels Use Tax is imposed on liquid fue ls having a fl ash point in excess of 200 degrees fahrenheit. OPINIONS OF' THE ATTORNEY GENERAL 71