OAR 150-465-0041: Liability for Unpaid Petroleum Load Fees

(1) For purposes of this rule, “seller” has the meaning given under OAR 150-465-0040 and includes, but is not limited to, an officer, member or employee of a corporation, partnership or other business entity that sells petroleum product from a bulk facility, if, among other duties, that individual has: (a) Authority to see that the petroleum load fees are paid when due; (b) Authority to prefer one creditor over another; (c) Authority to hire and dismiss employees; (d) Authority to set employees’ working conditions and schedules; (e) Authority to sign or co-sign checks; (f) Authority to compute and sign Oregon Petroleum load fee registration forms; (g) Authority to make fiscal decisions for the business; or (h) Authority to incur debt on behalf of the business. (2) It is the duty of the seller to hold in trust any amount of petroleum load fee collected from the sale of petroleum product and to assume custodial liability for amounts to be paid to the department. Any seller who fails to pay the petroleum load fee when due is subject to penalties, as provided by law, as any other taxpayer who fails to file a return or pay a tax when due. (3) If a seller fails to file returns or to pay any collected tax when due, any or all officers, members, and employees may be held personally responsible, as provided in this rule, for the returns and payments together with any interest and penalties, that are due. (4) To be held personally liable for unpaid petroleum load fees, a person must be a seller of petroleum product from a bulk facility. In addition, the person must be in a position to pay the petroleum load fee or direct the payment of the petroleum load fee at the time the duty arises to collect or pay the petroleum load fees. The person may be held personally liable if the individual was, or should have been aware, that the petroleum load fees were not paid to the department. A seller cannot avoid personal liability by delegating their responsibilities to another. (5) The following factors do not preclude a finding that an individual is liable for the payment of petroleum load fees: (a) Lack of willfulness in failing to pay over the required petroleum load fee; (b) The individual’s receipt of remuneration; (c) Maintenance of full-time employment elsewhere; (d) Another individual is also liable for the same petroleum load fee; (e) A corporate bylaw or partnership agreement position description to the contrary; (f) Absence of signatory authority on a business bank account; (g) Absence of bookkeeping or recordkeeping duties; (h) Absence of authority to hire, fire, and to set working conditions and schedules; or (i) Delegation to another person any functions indicating liability.