Section 43-4-217 - Additional funding - road usage fees - rules - legislative declaration - definitions(1) The general assembly hereby finds and declares that:(a) State motor fuel excise taxes levied on the purchase of motor fuels represent the largest source of state funding for the construction, maintenance, and supervision of the highways, roads, and streets of the state;(b) The amount of motor fuel taxes paid for motor fuel used to propel a motor vehicle bears a reasonable relationship to the vehicle's use of and impact on the highways, roads, and streets of the state because the amount of motor fuel used by a vehicle is in large part a function of the amount of miles traveled by the vehicle and the weight of the vehicle;(c) Motor fuel tax rates have not been increased in over twenty-five years, and motor fuel tax revenue has not kept pace and will not keep pace with inflation or the increased transportation infrastructure demands of the growing population of the state because:(I) The amount of motor fuel tax paid does not depend on the price of motor fuel and therefore does not increase when motor fuel prices increase but instead depends on the quantity of motor fuel purchased, which for most drivers does not increase over time; and(II) Motor vehicles have become more fuel-efficient over time;(d) It is necessary, appropriate, and in the best interest of the state to mitigate the declining purchasing power of motor fuel excise taxes by collecting a road usage fee from persons who use the transportation system to travel by motor vehicle, basing the amount of the fee on reasonable estimates of fee payers' usage of and impact on the system, and using fee revenue solely for the construction, maintenance, and supervision of the highways of the state;(e) Because motor fuel consumption is reasonably related to use of and impact on the transportation system, it is fair to fee payers, reasonable, and appropriate to calculate the amount of the road usage fee based on their motor fuel consumption;(f) It is also fair to fee payers, reasonable, and appropriate to streamline fee collection by collecting the road usage fee from distributors of motor fuels when motor fuel taxes are collected because the amount of the fee will be incorporated into the retail price of motor fuel and therefore passed on to users of the transportation system in precise proportion to their consumption of motor fuel and in reasonable relation to their use of and impact on the transportation system; and(g) In accordance with numerous Colorado judicial precedents, the road usage fee and the bridge and tunnel impact fee imposed as authorized by section 43-4-805 (5) (g.5) and collected by the department of revenue on behalf of the statewide bridge and tunnel enterprise pursuant to this section are fees and are not taxes because: (I) The fees are imposed not to raise revenue for general governmental purposes but instead are imposed for the sole purpose of funding the construction, maintenance, and supervision of the transportation system, with a priority placed on projects that are designated as ten-year vision projects on the department's ten-year vision project list;(II) Fee revenue defrays costs incurred by the state in funding construction, maintenance, and supervision of the transportation system that is necessitated by increased use of the system by the fee payers who use motor vehicles on the transportation system; and(III) The fees are imposed at rates that are reasonably calculated to defray the costs of providing the service, are based on the use and impact on the transportation system by fee payers, and are thus proportional to the benefits received by fee payers.(2) As used in this section:(a) "Gasoline" means gasoline, as defined in section 39-27-101 (12), that is taxed at the rate specified in section 39-27-102 (1)(a)(II)(A).(b) "Inflation" means the average annual percentage change in the United States department of transportation, federal highway administration, national highway construction cost index or its applicable predecessor or successor index for the five-year period ending on the last December 31 before a state fiscal year for which an adjustment to the road usage fee imposed pursuant to subsection (3) or (4) of this section is to be made begins.(c) "Special fuel" means special fuel, as defined in section 39-27-101 (29), that is taxed at the rate specified in section 39-27-102 (1)(a)(II)(B). "Special fuel" does not include diesel fuel and kerosene to which indelible dye meeting federal regulations is added before or upon removal from a terminal so long as such fuel is not used for a taxable purpose as described in section 39-27-102.5 (1.5).(3)(a) Except as otherwise provided in subsection (6) of this section, on and after April 1, 2023, each distributor of gasoline that pays the excise tax imposed on gasoline shall also pay, at the same time and in the same manner as the excise tax, a road usage fee in the amount specified in subsection (3)(b)(I) of this section or annually calculated by the department of revenue as required by subsection (3)(b)(II) or (3)(b)(III) of this section.(b)(I) The amount of the road usage fee for each gallon of gasoline acquired, sold, offered for sale, or used in this state from April 1, 2023, through June 30, 2023, and during state fiscal years 2023-24 through 2031-32 is:(A) Two cents per gallon from April 1, 2023, through June 30, 2023;(B) Three cents per gallon for state fiscal year 2023-24;(C) Four cents per gallon for state fiscal year 2024-25;(D) Five cents per gallon for state fiscal year 2025-26;(E) Six cents per gallon for state fiscal year 2026-27;(F) Seven cents per gallon for state fiscal year 2027-28; and(G) Eight cents per gallon for state fiscal years 2028-29 through 2031-32.(II) Except as otherwise provided in subsection (3)(b)(III) of this section, the amount of the road usage fee for each gallon of gasoline acquired, sold, offered for sale, or used in this state during state fiscal year 2032-33 or during any subsequent state fiscal year is the sum of:(A) The nominal amount of eight cents on December 31, 2030, adjusted for inflation; and(B) The difference between the nominal amount of twenty-two cents on December 31, 2030, adjusted for inflation, and the nominal amount of twenty-two cents on December 31, 2030.(III) An adjustment for inflation shall be made pursuant to subsection (3)(b)(II) of this section only if the rate of inflation is positive and must be the lesser of the actual rate of inflation or five percent. The department of revenue shall calculate the inflation adjusted amount of the road usage fee for state fiscal year 2032-33 and shall publish the amount no later than April 15, 2032.(4)(a) Except as otherwise provided in subsection (6) of this section, on and after April 1, 2023, each distributor of special fuel that pays the excise tax imposed on special fuel shall also pay, at the same time and in the same manner as the excise tax, a road usage fee in the amount specified in subsection (4)(b)(I) of this section or annually calculated by the department of revenue as required by subsection (4)(b)(II) or (4)(b)(III) of this section.(b)(I) The amount of the road usage fee for each gallon of special fuel acquired, sold, offered for sale, or used in this state from April 1, 2023, through June 30, 2023, and during state fiscal years 2023-24 through 2031-32 is: (A) Two cents per gallon from April 1, 2023, through June 30, 2023;(B) Three cents per gallon for state fiscal year 2023-24;(C) Four cents per gallon for state fiscal year 2024-25;(D) Five cents per gallon for state fiscal year 2025-26;(E) Six cents per gallon for state fiscal year 2026-27;(F) Seven cents per gallon for state fiscal year 2027-28; and(G) Eight cents per gallon for state fiscal years 2028-29 through 2031-32.(II) Except as otherwise provided in subsection (4)(b)(III) of this section, the amount of the road usage fee for each gallon of special fuel acquired, sold, offered for sale, or used in this state during state fiscal year 2032-33 or during any subsequent state fiscal year is the sum of:(A) The nominal amount of eight cents on December 31, 2030, adjusted for inflation; and(B) The difference between the nominal amount of twenty and one-half cents on December 31, 2030, adjusted for inflation, and the nominal amount of twenty and one-half cents on December 31, 2030.(III) An adjustment for inflation shall be made pursuant to subsection (4)(b)(II) of this section only if the rate of inflation is positive and must be the lesser of the actual rate of inflation or five percent. The department of revenue shall calculate the inflation adjusted amount of the road usage fee for state fiscal year 2032-33 and shall publish the amount no later than April 15, 2032.(5) Each distributor of special fuel that pays the excise tax imposed on special fuel shall also pay, at the same time and in the same manner as the excise tax and the road usage fee imposed pursuant to subsections (3) and (4) of this section, a bridge and tunnel impact fee in the amount imposed by the statewide bridge and tunnel enterprise as authorized by section 43-4-805 (5) (g.5). The collection and administration of the bridge and tunnel impact fee by the department of revenue on behalf of the statewide bridge and tunnel enterprise is done on behalf of the enterprise for the purpose of minimizing compliance costs for distributors and administrative costs for the state, and all bridge and tunnel impact fee revenue is revenue of the enterprise only and is excluded from state fiscal year spending, as defined in section 24-77-102 (17).(6)(a) A distributor is not required to pay the road usage fee imposed by subsection (3) or (4) of this section or the bridge and tunnel impact fee imposed as authorized by section 43-4-805 (5) (g.5), if the distributor would otherwise be liable for the excise tax on the gasoline or special fuel subject to the fee but is allowed to sell the gasoline or special fuel without payment of the applicable excise tax pursuant to section 39-27-102 (1)(b)(II) or section 39-27-102.5 (2)(b).(b) Gasoline or special fuel removed from a terminal in this state by a person licensed as an exporter pursuant to section 39-27-104 exclusively for delivery to another state is not subject to the road usage fee imposed by subsection (3) or (4) of this section or the bridge and tunnel impact fee imposed as authorized by section 43-4-805 (5) (g.5).(c) The burden of proving that gasoline or special fuel is not subject to the road usage fee imposed by subsection (3) or (4) of this section or the bridge and tunnel impact fee imposed as authorized by section 43-4-805 (5) (g.5) is on the distributor under such reasonable requirements of proof as the executive director of the department of revenue may prescribe.(7) The collection, administration, and enforcement of the road usage fees imposed by subsection (3) or (4) of this section and the bridge and tunnel impact fee imposed as authorized by section 43-4-805 (5) (g.5) shall be performed by the executive director of the department of revenue in the same manner as the collection, administration, and enforcement of state gasoline and special fuel taxes pursuant to article 27 of title 39. A distributor who pays the road usage fee as required by subsection (3) or (4) of this section shall remit the fee, together with any bridge and tunnel impact fee that the distributor also pays as required by section 43-4-805 (5) (g.5) and subsection (5) of this section, to the department of revenue at the same time and in the same manner in which the distributor remits gasoline or special fuel taxes collected by the distributor as required by article 27 of title 39. The department of revenue may promulgate rules to implement this section.(8) In accordance with section 43-4-203 (1)(f), the state treasurer shall credit all road usage fee revenue collected as required by this section to the highway users tax fund created in section 43-4-201. In accordance with section 43-4-805 (5) (g.5), the state treasurer shall credit all bridge and tunnel impact fee revenue collected as required by this section to the statewide bridge and tunnel enterprise special revenue fund created in section 43-4-805 (3)(a). All fees credited to the highway users tax fund pursuant to this section shall be allocated from the highway users tax fund to the state, counties, and municipalities as required by section 43-4-205 (6.8).Amended by 2023 Ch. 303,§ 93, eff. 8/7/2023.Amended by 2022 Ch. 159, §4, eff. 5/16/2022.Added by 2021 Ch. 250, §35, eff. 6/17/2021.L. 2021: Entire section added, (SB 21-260), ch. 1419, p. 1419, § 35, effective June 17.2023 Ch. 303, was passed without a safety clause. See Colo. Const. art. V, § 1(3). For the legislative declaration in SB 21-260, see section 1 of chapter 250, Session Laws of Colorado 2021.