| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to the place of business of a retailer for purposes of |
|
|
municipal sales and use taxes. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Section 321.002(a), Tax Code, is amended by |
|
|
amending Subdivision (3) and adding Subdivision (4) to read as |
|
|
follows: |
|
|
(3)(A) "Place of business of the retailer" means an |
|
|
established outlet, office, or location operated by the retailer or |
|
|
the retailer's agent or employee for the purpose of receiving |
|
|
orders for taxable items and includes any location at which three or |
|
|
more orders are received by the retailer during a calendar year and |
|
|
at which at least four primary selling activities occur. A |
|
|
warehouse, storage yard, or manufacturing plant is not a "place of |
|
|
business of the retailer" unless at least three orders are received |
|
|
by the retailer during the calendar year and at least four primary |
|
|
selling activities occur at the warehouse, storage yard, or |
|
|
manufacturing plant. |
|
|
(B) An outlet, office, facility, or any location |
|
|
that contracts with a retail or commercial business to process for |
|
|
that business invoices, purchase orders, bills of lading, or other |
|
|
equivalent records onto which sales tax is added, including an |
|
|
office operated for the purpose of buying and selling taxable goods |
|
|
to be used or consumed by the retail or commercial business, is not |
|
|
a "place of business of the retailer" if the comptroller determines |
|
|
that the outlet, office, facility, or location functions or exists |
|
|
to avoid the tax legally due under this chapter or exists solely to |
|
|
rebate a portion of the tax imposed by this chapter to the |
|
|
contracting business. An outlet, office, facility, or location |
|
|
does not exist to avoid the tax legally due under this chapter or |
|
|
solely to rebate a portion of the tax imposed by this chapter if the |
|
|
outlet, office, facility, or location provides significant |
|
|
business services, beyond processing invoices, to the contracting |
|
|
business, including logistics management, purchasing, inventory |
|
|
control, or other vital business services. |
|
|
(C) Notwithstanding any other provision of this |
|
|
subdivision, a kiosk is not a "place of business of the |
|
|
retailer." In this subdivision, "kiosk" means a small stand-alone |
|
|
area or structure that: |
|
|
(i) is used solely to display merchandise |
|
|
or to submit orders for taxable items from a data entry device, or |
|
|
both; |
|
|
(ii) is located entirely within a location |
|
|
that is a place of business of another retailer, such as a |
|
|
department store or shopping mall; and |
|
|
(iii) at which taxable items are not |
|
|
available for immediate delivery to a customer. |
|
|
(4) "Primary selling activity" means: |
|
|
(A) any of the following actions, if performed by |
|
|
a retailer or the agent or employee of a retailer: |
|
|
(i) exercising discretion and independent |
|
|
authority to solicit customers on behalf of the retailer and to bind |
|
|
the retailer to a sale; |
|
|
(ii) taking an action that binds the |
|
|
retailer to a sale, including accepting a purchase order or |
|
|
submitting an offer to a buyer that is subject to the buyer's |
|
|
unilateral acceptance; |
|
|
(iii) receiving a payment or issuing an |
|
|
invoice; |
|
|
(iv) engaging in marketing and solicitation |
|
|
activities on behalf of the retailer; |
|
|
(v) procuring goods for sale by the |
|
|
retailer; |
|
|
(vi) receiving and accepting purchase |
|
|
orders or, if the retailer's purchase orders are accepted, |
|
|
processed, or fulfilled in another location, receiving and |
|
|
accepting contracts and other documents; |
|
|
(vii) transferring title to an item to a |
|
|
buyer; or |
|
|
(viii) displaying goods for sale to |
|
|
prospective customers; or |
|
|
(B) the use of a structure owned or leased by a |
|
|
retailer to: |
|
|
(i) store or otherwise hold the retailer's |
|
|
inventory; |
|
|
(ii) house the retailer's business |
|
|
headquarters, meaning the location from which the retailer directs |
|
|
or manages the retailer's business; or |
|
|
(iii) provide office space for the |
|
|
retailer's officers, executives, or other employees who have |
|
|
authority to set prices and determine the terms of a sale. |
|
|
SECTION 2. The change in law made by this Act does not |
|
|
affect tax liability accruing before the effective date of this |
|
|
Act. That liability continues in effect as if this Act had not been |
|
|
enacted, and the former law is continued in effect for the |
|
|
collection of taxes due and for civil and criminal enforcement of |
|
|
the liability for those taxes. |
|
|
SECTION 3. This Act takes effect September 1, 2021. |