2009 Kentucky Revised Statutes CHAPTER 138 EXCISE TAXES 138.448 Liability of officers of business organizations for gasoline and special fuels tax -- Exemptions.
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138.448 Liability of officers of business organizations for gasoline and special fuels
tax -- Exemptions.
(1) Notwithstanding any other provision of this chapter to the contrary, the president,
vice president, secretary, treasurer, or any other person holding any equivalent <br>corporate office of any corporation subject to the provisions of KRS 138.210 to <br>138.446 shall be personally and individually liable, both jointly and severally, for <br>the tax imposed under KRS 138.210 to 138.446. Corporate dissolution, withdrawal <br>of the corporation from the state, or the cessation of holding any corporate office <br>shall not discharge the liability of any person. The personal and individual liability <br>shall apply to each and every person holding a corporate office at the time the tax <br>becomes or became due. No person shall be personally and individually liable under <br>this subsection who had no authority to collect, truthfully account for, or pay over <br>any tax imposed by KRS 138.210 to 138.446 at the time the tax imposed becomes <br>or became due. "Taxes" as used in this section shall include interest accrued at the <br>rate provided by KRS 131.183, all applicable penalties imposed under the <br>provisions of this chapter, and all applicable penalties imposed under the provisions <br>of KRS 131.180, 131.410 to 131.445, and 131.990. <br>(a) The provisions of this section shall not apply if a corporation on an annual
basis elects to be exempt from the provisions of KRS 138.224 by: <br>1.
Filing with the department a financial instrument in an amount not to <br>exceed two (2) months' estimated liability, as calculated by the <br>department, or five thousand dollars ($5,000), whichever is greater;
2.
Certifying by an electronic method acceptable by both the dealer and the <br>department no later than the fifteenth day of each month the amount of <br>gasoline and special fuels tax due the Commonwealth by the twenty-<br>fifth day of that month; and
3.
Agreeing to initiate an Automated Clearing House credit transaction to <br>electronically transfer the amount of tax from the dealer's account to the <br>Kentucky State Treasurer on the twenty-fifth day of that month.
For the purpose of this paragraph, a "financial instrument" means a bond <br>issued by a corporation authorized to do business in Kentucky, a line of credit, <br>or an account with a financial institution maintaining a compensating balance.
(b) If a dealer fails to certify the amount of tax collected or does not perform the
electronic fund transfer as prescribed by paragraph (a) of this subsection, the <br>department may immediately make demand of the financial instrument and <br>revoke the license of the dealer notwithstanding the provisions of KRS <br>138.340, and the provisions of this section shall apply.
(2) Notwithstanding any other provision of this chapter, KRS 275.150, 362.1-306(3) or
predecessor law, or 362.2-404(3) to the contrary, the managers of a limited liability <br>company, the partners of a limited liability partnership, and the general partners of a <br>limited liability limited partnership or any other person holding any equivalent <br>office of a limited liability company, limited liability partnership, or limited liability <br>limited partnership subject to the provisions of KRS 138.210 to 138.446 shall be
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personally and individually liable, both jointly and severally, for the tax imposed <br>under KRS 138.210 to 138.446. Dissolution, withdrawal of the limited liability <br>company, limited liability partnership, or limited liability limited partnership from <br>the state, or the cessation of holding any office shall not discharge the liability of <br>any person. The personal and individual liability shall apply to each and every <br>manager of a limited liability company, partner of a limited liability partnership and <br>general partner of a limited liability limited partnership at the time the tax becomes <br>or became due. No person shall be personally and individually liable under this <br>subsection who had no authority to collect, truthfully account for, or pay over any <br>tax imposed by KRS 138.210 to 138.446 at the time the tax becomes or became <br>due. "Taxes" as used in this section shall include interest accrued at the rate <br>provided by KRS 131.183, all applicable penalties imposed under the provisions of <br>this chapter, and all applicable penalties imposed under the provisions of KRS <br>131.180, 131.410 to 131.445, and KRS 131.990. <br>(a) The provisions of this section shall not apply if a limited liability company, a
limited liability partnership, or limited liability limited partnership on an <br>annual basis elects to be exempt from the provisions of KRS 138.224 by: <br>1.
Filing with the department a financial instrument in an amount not to <br>exceed two (2) months' estimated liability, as calculated by the <br>department, or five thousand dollars ($5,000), whichever is greater;
2.
Certifying by an electronic method acceptable by both the dealer and the <br>department no later than the fifteenth day of each month the amount of <br>gasoline and special fuels tax due the Commonwealth by the twenty-<br>fifth day of that month; and
3.
Agreeing to initiate an Automated Clearing House credit transaction to <br>electronically transfer the amount of tax from the dealer's account to the <br>Kentucky State Treasurer on the twenty-fifth day of that month.
For the purpose of this paragraph, a "financial instrument" means a bond <br>issued by a corporation authorized to do business in Kentucky, a line of credit, <br>or an account with a financial institution maintaining a compensating balance.
(b) If a dealer fails to certify the amount of tax collected or does not perform the
electronic fund transfer prescribed by paragraph (a) of this subsection, the <br>department may immediately make demand of the financial instrument and <br>revoke the license of the dealer notwithstanding the provisions of KRS <br>138.340, and the provisions of this section shall apply.
Effective: July 12, 2006 <br>History: Amended 2006 Ky. Acts ch. 149, sec. 200, effective July 12, 2006. --
Amended 2005 Ky. Acts ch. 85, sec. 384, effective June 20, 2005. -- Created 2002 <br>Ky. Acts ch. 366, sec. 15, effective January 1, 2003.
Legislative Research Commission Note (1/1/2003). The provisions of subsection (2) of
this statute created in 2002 Ky. Acts ch. 366, sec. 15, "apply retroactively to July 15, <br>1994." 2002 Ky. Acts ch. 366, sec. 19.
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