WAC 252

Hazardous Substance Tax

Pollution tax.

Exemptions.

Tax imposed--Revenue to be used for underground petroleum storage tank programs.

Exemptions from tax.

Hazardous substance tax and petroleum product tax.Effective 9/2/89

Hazardous substance/petroleum products tax, vessels operating in Washington waters

The Department reissued Excise Tax Advisory (ETA) 3092 titled Hazardous Substance/Petroleum Products Tax, Vessels Operating Both in Washington Waters and Outside of Washington. This ETA explains how taxpayers operating vessels in interstate or foreign commerce are liable for both the hazardous substance tax and petroleum products tax on the fuel they consume in Washington waters by providing approved formulas for computing the taxes on the fuel. This ETA has been updated to correct the formulas, clarify how to determine the wholesale price of fuel, and provide an example.

Hazardous Substance Tax, Biodiesel (B100), and B99.9/B99 Biodiesel Blend B99.9/B99 biodiesel blend that meets the ASTM D6751 specifications is not considered a hazardous substance for HST purposes and is not subject to the HST. Hazardous Substance Tax, Biodiesel (B100), and B99.9/B99 Biodiesel Blend B99.9/B99 biodiesel blend that meets the ASTM D6751 specifications is not considered a hazardous substance for HST purposes and is not subject to the HST.

HAZARDOUS SUBSTANCE TAX -- EXCLUDE SUBSTANCES ALREADY POSSESSED These documents were issued shortly after the effective date of the prior hazardous substance tax program (chapter 82.22 RCW). Many of the provisions are no longer relevant because the documents fail to recognize provisions of the current law (chapter 82.21 RCW). They provide incorrect statutory citations, incorrect tax rates, and/or refer to specific subsections of WAC 458-20-252 (Hazardous substance tax and petroleum product tax) that no longer exist. Cancelled by ETA 2003 -0 6/30/99.

HAZARDOUS SUBSTANCE TAX LINE ITEMIZING CUSTOMER BILLINGS -- TAX MEASURE These documents were issued shortly after the effective date of the prior hazardous substance tax program (chapter 82.22 RCW). Many of the provisions are no longer relevant because the documents fail to recognize provisions of the current law (chapter 82.21 RCW). They provide incorrect statutory citations, incorrect tax rates, and/or refer to specific subsections of WAC 458-20-252 (Hazardous substance tax and petroleum product tax) that no longer exist. Cancelled by ETA 2003 -0 6/30/99.

SPECIAL HAZARDOUS SUBSTANCE TAX APPLICATIONS. As with ETAs 538 and 539, which are also being considered for repeal, ETA 540 was issued shortly after the effective date of the prior hazardous substance tax program (chapter 82.22 RCW). Some provisions are no longer relevant because the ETA fails to recognize provisions of the current law (chapter 82.21 RCW). It provides incorrect statutory citations, cites specific subsections of WAC 458-20-252 (Hazardous substance tax and petroleum product tax) that are now incorrect/no longer exist, and references ETAs 538 and 539.

HAZARDOUS SUBSTANCE/PETROLEUM PRODUCTS TAX, VESSELS OPERATING IN WASHINGTON WATERS Revised 2/2/09 See ETA 3092.2009

New "Economic Nexus" in Washington State May Impact "Foreign Corporations

Petroleum Products Tax Extended to June 1, 2007

New Apportionment Method

Tax Attorneys and CPAs New "Economic Nexus" in Washington State May Impact Your Clients

Changes for Reporting Oil Spill Taxes

Registered Out-of-state Businesses Currently not Reporting Income from Service Activities - New Apportionment for Certain Income

Pesticides and the Hazardous Substance Tax

B&O Tax Reporting Requirement Continues After Business Activity Stops (Trailing Nexus)

Petroleum Products Tax Re-imposed

Petroleum Products Tax re-imposed

Petroleum Products Tax Suspended

Hazardous Substance Tax Exemption for agricultural crop protection products

Petroleum Products Tax Re-imposed

Petroleum Products Tax Suspension

HAZARDOUS SUBSTANCE TAX -- POSSESSION INSTATE -- TEMPORARY STORAGE INSTATE -- PRODUCT EVENTUALLY SOLD AND DELIVERED OUT OF STATE -- THROUGH INTERSTATE MOVEMENT. Instate possession of a hazardous substance is the incidence that gives rise to Hazardous Substance Tax liability.

HAZARDOUS SUBSTANCE TAX -- CREDIT FOR CALIFORNIA ECONOMIC POISON ASSESSMENT. The California Economic Poison Assessment cannot be credited against hazardous substances because it is not a tax substantially similar to Washington's Hazardous Substance Tax.

HAZARDOUS SUBSTANCE TAX -- CREDIT -- TIMING. In order to claim a credit for hazardous substance taxes paid to other states, the taxes must be paid before the substances are possessed in Washington.

HAZARDOUS SUBSTANCE TAX -- EXCHANGE SALES -- EXPORT EXEMPTION CERTIFICATE -- ASSUMPTION OF LIABILITY. The acceptance of validly executed export certificates on sales of fuel products to exchange partners relieves the seller from liability for hazardous substance tax. However, if the taxpayer issues export certificates to its exchange partners on its purchase of fuel products, the taxpayer/issuer has assumed HST liability for those products purchased.See:Det. No. 88-329, 6 WTD 321, (1988).

HAZARDOUS SUBSTANCE TAX -- FIRST POSSESSION -- EXPORT EXEMPTION -- REIMPORTED. Hazardous substance tax (HST) was not due on fuel products originally refined by the taxpayer in Washington and transferred to Oregon for further processing even though the fuel products were subsequently sold to Washington customers.

HAZARDOUS SUBSTANCE TAX -- INTERMEDIATE PRODUCTS. Gasoline and propane used to operate refinery equipment are not intermediate products exempt fromhazardous substance tax under Rule 252 (7)(b).

INTERSTATE TRANSPORTATION FINALLY ENDED. Out-of-state sellers or producers need not pay hazardous substance or petroleum products taxes on substances shipped directly to customers in this state provided they did not certify to their customers that these taxes were paid.

HAZARDOUS SUBSTANCE TAX -- PETROLEUM PRODUCTS TAX -- JET FUEL -- FUEL IN TANKS -- INCOMING FLIGHTS.Jet fuel consumed on incoming flights is subject to hazardous substance tax and petroleum products tax.

HAZARDOUS SUBSTANCE TAX;PETROLEUM PRODUCTS TAX;B&O TAX -- EXEMPTION/CREDIT -- FUEL-IN-TANKS -- MARINE LUBRICANTS.Marine lubricants are considered to be a fuel for purposes of a tax credit/exemption, only where they are concurrently consumed in the bunker fuel's combustion process.

HAZARDOUS SUBSTANCE TAX – EXEMPTION --PETROLEUM PRODUCTS TAX – FUEL CONSUMED IN AIRCRAFT ARRIVING IN WASHINGTON.The hazardous substance and petroleum products taxes apply to jet fuel consumed in flights arriving in Washington from out of state between the time the aircraft crosses the Washington border and the time it lands because the taxpayer possessed and consumed the fuel in Washington.

HST TAX -- IMPLEMENTING STATUTE -- LANGUAGE --STATUTORY INTENT -- CLEAR AND UNAMBIGUOUS.Where a statute defines “hazardous substance” to include all products defined as a hazardous substance under CERCLA as of March 1, 1989 the language of the statute is clear and unambiguous and the Department may not consider legislative intent to rule otherwise.

HST TAX -- ENACTMENT -- INITIAL CERCLA LISTING -- REVOCATION.Where the EPA had originally listed a product as a hazardous substance on the CERCLA list and it remained on the list at the time RCW 82.21 was enacted, the EPA’s subsequent revocation of that listing did not apply retroactively for purposes of RCW 82.21.

HST – CREDIT – FUEL SOLD IN TANKS.To the extent the taxpayer, a refiner, can produce export certificates from carriers, it is entitled to take the fuel-in-tank credit.

HST – CREDITS – EXEMPTIONS – COMMINGLED PRODUCTS – BLENDING OF PRODUCTS.Under the applicable rule, different tax consequences result when hazardous substances are commingled in Washington as opposed to outside Washington, where tax was not previously paid.Similarly, the blending of hazardous substances with other hazardous substances or with non-hazardous substances can result in different tax consequences when the blending occurs in Washington as opposed to blending outside Washington, where tax was not previously paid.

HST – WHOLESALE VALUE – PLATT’S.The HST rate is measured by wholesale value.In general, the wholesale value is the price paid by a wholesaler or retailer to a refinery or manufacturer.No deduction is allowed for transportation costs from the refinery.With respect to exchanges, prices listed in independent publications such as Platt’s Oil Price Handbook can be used to establish the wholesale value of bulk exchanges.

HST – GASOHOL.For purposes of the HST laws, denatured ethanol used to make gasohol is not considered to be a hazardous substance.Because the taxpayer combines a hazardous substance, gasoline, with a non-hazardous substance, denatured ethanol, to produce a new petroleum product, an oxygenated gasoline, it is subject to HST based on its wholesale price.

MANUFACTURING B&O TAX -- HST – SELF-PRODUCED FUEL –STILL GAS – CATALYTIC COKE.Still gas produced and used by the taxpayer as a fuel is subject to tax, valued at the cost the taxpayer would have incurred to purchase a fuel of equivalent BTU value.In accordance with ETA 109, catalytic coke produced as a contaminate is not subject to B&O tax, even though it incidentally produces heat when consumed.

RULE 252; RCW 82.21.020; RCW 82.23A.010: HAZARDOUS SUBSTANCE TAX - PETROLEUM PRODUCTS TAX – DEFINITION OF “HAZARDOUS SUBSTANCE.” Denatured ethanol is not a hazardous substance under RCW 82.21.020 and WAC 458-20-252 because it is mostly commonly denatured with natural gasoline, which is not “derived from the refining of crude oil” under WAC 458-20-252(2)(b)(i).

RULE 252; RCW 82.21.020; RCW 82.23A.010: HAZARDOUS SUBSTANCE TAX - PETROLEUM PRODUCTS TAX – DEFINITION OF “HAZARDOUS SUBSTANCE.” Oxygenated gasoline, which is a combination of denatured ethanol and petroleum based gasoline, is a hazardous substance under RCW 82.21.020 and WAC 458-20-252 because it contains a “petroleum product,” as defined in RCW 82.21.020(2) and RCW 82.23A.010(1).

Rule 252; RCW 82.21.020(1): HAZARDOUS SUBSTANCE TAX (HST) – DEFINITION OF HAZARDOUS SUBSTANCE – WASTE OIL. Used lube oil and bunker fuel are “petroleum products” as defined in RCW 82.21.020(2), which fall within the definition of hazardous substance subject to HST.

Rule 252; RCW 82.21.030: HST – FIRST POSSESSION OF A HAZARDOUS SUBSTANCE. A taxpayer that has control of a hazardous substance with the power to sell or use it or to authorize the sale or use by another when it enters the state has “first possession” and is liable for HST.

RCW 82.21.020; RCW 82.23A.010: HAZARDOUS SUBSTANCE TAX – PETROLEUM PRODUCTS TAX – AVIATION FUEL. Aircraft are required to pay hazardous substance tax and petroleum products tax on the fuel burned within Washington.

HAZARDOUS SUBSTANCE TAX TAXABLE -- CARBON DIOXIDE -- GASES USED AS FUEL -- EJUSDEM GENERIS RULE. Under the ejusdem generis rule, the only liquefied or liquefiable gases produced from refining crude oil which are taxablehazardous substances are those which are used or usable as fuel.CO2 is not a taxable hazardous substance under chapter 82.22 RCW or Rule 252.

HAZARDOUS SUBSTANCE TAX -- WHAT CONSTITUTES -- URANIUM HEXAFLUORIDE -- NUCLEAR FUEL ASSEMBLIES. Neither uranium hexaflouride in natural or enriched form, nor completed nuclear fuel assemblies constitute hazardous substances for the purpose of taxation under chapter 82.22 RCW. F.I.D.

HAZARDOUS SUBSTANCE TAX -- EXPORT FUEL EXEMPTION -- PETROLEUM PRODUCTS USED OR SOLD AS FUEL ITEMIZED. Fuels which may be exported and exempted of hazardous substance tax do not include feedstock or vacuum gas oils in raw or treated form. ETB 540.22.252 itemizes the petroleum products usable as fuel which may qualify for exemption. F.I.D.

HAZARDOUS SUBSTANCE TAX -- "WHOLESALE VALUE" DEFINED -- SELLING PRICE -- IMPUTED VOLUME DISCOUNT. The "wholesale value" for measuring the hazardous substance tax is the actual manufacturer's/refiner's selling price, not a calculated price which imputes a hypothetical purchase volume discount when no such discount is actually given. F.I.D.

HAZARDOUS SUBSTANCE TAX -- EXEMPTION -- CERTIFICATES -- PARTIAL EXPORTATION. The export exemption certificate of subsection (4)(c)(iv) under Rule 252 may be used even though not all of the hazardous substance covered by the certificate will be exported. F.I.D.

HAZARDOUS SUBSTANCE TAX -- EXEMPTION -- CERTIFICATES -- EXPORTED FUEL. Purchasers of fuel products for use outside this state may give their suppliers tax exemption export certifications but must report and pay hazardous substance tax themselves upon any substances not actually exported and not used by themselves upon any substances not actually exported and not used by them as fuel in this state. Ultimate use of such substances as fuel by another person in this state does not entitle the in-state refiner to any tax exemption. F.I.D.

HAZARDOUS SUBSTANCE TAX -- EXEMPTION -- EXPORT FUEL SALES OR USES -- "CUTTERS" -- "BLENDING STOCK" -- "FEEDSTOCK." "Cutters" and "blending stock" are generally used as fuels and are thus entitled to hazardous substance tax exemption when exported for sale or use outside this state. "Feed" and "feedstock" are not fuels or generally used as fuels and are not entitled to the statutory export exemption. F.I.D.

HAZARDOUS SUBSTANCE TAX -- PETROLEUM PRODUCTS -- FUNGIBLES--COMMINGLING TAXED AND UNTAXED PETROLEUM PRODUCTS -- PRESUMPTION OF LIMITED LIABILITY. Under rare circumstances when untaxed fungible petroleum products are mixed with the same kind of products which have been previously taxed, and export sales are made from the commingled supply, it will be presumed that the seller will minimize its tax liability by exporting the previously untaxed portion first. F.I.D.

HAZARDOUS SUBSTANCE TAX -- HAZARDOUS INGREDIENTS -- INTERNAL CREDITS. The hazardous substance tax applies to ingredients or components purchased and used in manufacturing other hazardous end products. The purchaser/user may not pay the seller's tax liability and then claim credit against its own tax liability on the finished end product. F.I.D.

HAZARDOUS SUBSTANCE TAX -- WHOLESALE VALUE -- DEDUCTIONS -- OTHER TAXES DEDUCTIBLE. Other taxes collected by the seller merely as collecting agent, from the buyer of hazardous substances are not part of the "wholesale value" tax measure.Such other taxes which are primarily imposed upon the buyer, and which may be deducted from the hazardous substance tax measure, include federal and state taxes on gasoline, diesel, special fuels, aircraft fuel, and the state retail sales tax and use tax.

HAZARDOUS SUBSTANCE TAX -- EXEMPTION -- FUEL USED IN PROCESSION PETROLEUM. Only persons who actually use fuel as a consumer in the process of refining petroleum products are entitled to the exemption for such fuel used in this state. This exemption is limited to the fuel user's possession and is not applicable for a refiner's possession simply because the fuel may be used by the refiner's buyer in an exempt way. F.I.D.