By: Carona H.B. No. 98
73R1292 CBH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to an illegal gambling tax.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subtitle E, Title 2, Tax Code, is amended by
1-5 adding Chapter 161 to read as follows:
1-6 CHAPTER 161. ILLEGAL GAMBLING TAX
1-7 SUBCHAPTER A. GENERAL PROVISIONS
1-8 Sec. 161.001. DEFINITIONS. In this chapter:
1-9 (1) "Bet" has the meaning assigned by Section 47.01,
1-10 Penal Code.
1-11 (2) "Bookmaking" has the meaning assigned by Section
1-12 47.03(b), Penal Code.
1-13 (3) "Gambling device" has the meaning assigned by
1-14 Section 47.01, Penal Code.
1-15 (4) "Gambling place" has the meaning assigned by
1-16 Section 47.01, Penal Code.
1-17 (5) "Winnings" includes the amount received without
1-18 deduction of the amount at risk of loss.
1-19 Sec. 161.002. NO DEFENSE OR IMMUNITY. This chapter does not
1-20 provide a defense or affirmative defense to, exception to, or
1-21 immunity from prosecution under the penal laws of this state
1-22 relating to gambling.
1-23 Sec. 161.003. REGISTRATION. (a) A person shall register
1-24 with the comptroller if the person:
2-1 (1) engages in gambling promotion or bookmaking in
2-2 violation of Section 47.03, Penal Code; or
2-3 (2) keeps a gambling place in violation of Section
2-4 47.04, Penal Code.
2-5 (b) The registration must include:
2-6 (1) the name and address of the person;
2-7 (2) each location in which the person:
2-8 (A) engages in gambling promotion or bookmaking;
2-9 or
2-10 (B) keeps a gambling place; and
2-11 (3) other information that the comptroller requires.
2-12 (c) A person is not required to register under this section
2-13 if the person is engaged exclusively in conduct that constitutes a
2-14 defense to prosecution under Chapter 47, Penal Code.
2-15 Sec. 161.004. REGISTRATION CERTIFICATES AND TAX PAYMENT
2-16 RECEIPTS. (a) The comptroller shall adopt a uniform system for
2-17 providing and displaying registration certificates and tax payment
2-18 receipts as evidence that a person is registered under this chapter
2-19 and that the tax imposed by this chapter has been paid to the
2-20 comptroller.
2-21 (b) A tax payment receipt may not be used more than once.
2-22 Sec. 161.005. CONFIDENTIAL INFORMATION. (a) Information
2-23 provided by a person in a report or return made for purposes of
2-24 paying a tax imposed by this chapter is confidential.
2-25 (b) The comptroller or any other public official or employee
2-26 commits an offense if he reveals information made confidential by
2-27 this section to any person other than:
3-1 (1) to the comptroller or a public official or
3-2 employee whose duties involve the administration or collection of
3-3 the taxes imposed by this chapter; or
3-4 (2) in a judicial proceeding involving a tax imposed
3-5 by this chapter.
3-6 (c) An offense under Subsection (b) of this section is a
3-7 Class A misdemeanor.
3-8 (d) Except in a prosecution directly related to a tax
3-9 imposed by this chapter, information made confidential by this
3-10 section may not be used in any way in a prosecution of the person
3-11 for whom the report or return is made unless the information is
3-12 obtained independently of the report or return.
3-13 (Sections 161.006-161.100 reserved for expansion
3-14 SUBCHAPTER B. IMPOSITION, RATE, AND PAYMENT OF TAX
3-15 Sec. 161.101. TAX IMPOSED; RATE OF TAX. (a) A tax is
3-16 imposed on:
3-17 (1) the winnings that a person receives for placing a
3-18 bet in this state in violation of Section 47.02, Penal Code; and
3-19 (2) the gross receipts from:
3-20 (A) engaging in gambling promotion or bookmaking
3-21 in violation of Section 47.03, Penal Code;
3-22 (B) keeping a gambling place in violation of
3-23 Section 47.04, Penal Code;
3-24 (C) communicating gambling information in
3-25 violation of Section 47.05, Penal Code;
3-26 (D) possessing a gambling device or equipment in
3-27 violation of Section 47.06, Penal Code;
4-1 (E) possessing gambling paraphernalia in
4-2 violation of Section 47.07, Penal Code; or
4-3 (F) otherwise violating Chapter 47, Penal Code.
4-4 (b) The tax rate is 10 percent of the winnings or gross
4-5 receipts.
4-6 (c) The tax on each portion of winnings or gross receipts
4-7 taxable under this chapter and received by a person is payable on
4-8 the day the person receives the winnings or gross receipts and is
4-9 delinquent on the 31st day after that day.
4-10 (d) The tax is not imposed if the winnings or gross receipts
4-11 are received from conduct that constitutes a defense from
4-12 prosecution under Chapter 47, Penal Code.
4-13 Sec. 161.102. COLLECTION; RETURN. (a) A person who pays a
4-14 bet placed under Section 161.101(a)(1) or receives gross receipts
4-15 under Section 161.101(a)(2) that is subject to the tax imposed
4-16 under this chapter shall:
4-17 (1) deduct the amount of the tax from the payment or
4-18 gross receipts at the time the payment is made or gross receipts
4-19 received;
4-20 (2) send the amount deducted to the comptroller before
4-21 the tax is delinquent; and
4-22 (3) enclose with the amount sent a report showing:
4-23 (A) the names and addresses of each party to the
4-24 bet or other gambling operation;
4-25 (B) a description of the bet or gambling
4-26 operation; and
4-27 (C) other information required by the
5-1 comptroller.
5-2 (b) A person who receives winnings for placing a bet under
5-3 Section 161.101(a)(1) is liable for the tax imposed by Section
5-4 161.101, and except as provided by Subsection (c), the liability
5-5 continues until the tax is paid to the state.
5-6 (c) A person who receives winnings for placing a bet under
5-7 Section 161.101(a)(1) is not further liable for the tax imposed by
5-8 Section 161.101 if the amount of the tax is deducted from the
5-9 winnings under Subsection (a) and the person receives a receipt
5-10 from the payor for the amount deducted. The receipt must be on a
5-11 form provided by the comptroller.
5-12 Sec. 161.103. ASSESSMENT. (a) When the comptroller makes
5-13 an assessment under this chapter, the comptroller shall issue a
5-14 determination stating the amount and that the tax collection is in
5-15 jeopardy. The amount determined is due and payable immediately. A
5-16 determination made under this chapter becomes final on the
5-17 expiration of 20 days after the day on which the notice of the
5-18 determination was served by personal service or by mail unless a
5-19 petition for a redetermination is filed before the determination
5-20 becomes final.
5-21 (b) If a determination made under this chapter becomes final
5-22 without payment of the amount of the determination being made, the
5-23 comptroller shall add to the amount a penalty of 10 percent of the
5-24 amount of the tax and interest.
5-25 (c) In a redetermination proceeding held or a judicial
5-26 proceeding brought under this chapter, a certificate from the
5-27 comptroller that shows the issued determination is prima facie
6-1 evidence of:
6-2 (1) the determination of the stated tax or amount of
6-3 the tax;
6-4 (2) the stated amount of the penalties and interest;
6-5 and
6-6 (3) the compliance of the comptroller with this
6-7 chapter in computing and determining the amount due.
6-8 (d) The suppression of evidence on any ground in a criminal
6-9 case that arises out of facts on which a determination is made
6-10 under this chapter or the dismissal of criminal charges in such a
6-11 case does not affect a determination made under this chapter.
6-12 (Sections 161.104-161.200 reserved for expansion
6-13 SUBCHAPTER C. CRIMINAL PROVISIONS; SEIZURE AND FORFEITURE
6-14 Sec. 161.201. CRIMINAL PENALTY. (a) A person commits an
6-15 offense if the person:
6-16 (1) fails to register with the comptroller as required
6-17 by Section 161.003; or
6-18 (2) receives gross receipts under Section
6-19 161.101(a)(2) on which the tax imposed by this chapter has not been
6-20 paid.
6-21 (b) A person commits an offense if the person receives
6-22 taxable winnings under Section 161.101(a)(1) on which the tax
6-23 imposed by this chapter has not been paid, for which the person is
6-24 liable under Section 161.102, and for which the person does not
6-25 receive a receipt under Section 161.102(c).
6-26 (c) An offense under Subsection (a) is a felony of the third
6-27 degree.
7-1 (d) An offense under Subsection (b) is a Class C
7-2 misdemeanor.
7-3 (e) In addition to the fine provided by law for a felony of
7-4 the third degree or a Class C misdemeanor, a person convicted of
7-5 any offense under this section shall be fined an amount equal to
7-6 the amount of tax due and unpaid on the taxable winnings or gross
7-7 receipts that is the subject of the offense.
7-8 (f) An indictment or information may be presented within six
7-9 years from the date of the offense and not afterward.
7-10 Sec. 161.202. COUNTERFEIT REGISTRATION CERTIFICATES AND TAX
7-11 PAYMENT RECEIPTS. (a) A person commits an offense if the person:
7-12 (1) prints, engraves, makes, issues, sells, or
7-13 circulates a counterfeit registration certificate or tax payment
7-14 receipt; or
7-15 (2) possesses with intent to use, sell, circulate, or
7-16 pass a counterfeit registration certificate or tax payment receipt.
7-17 (b) An offense under this section is a felony of the third
7-18 degree.
7-19 (c) Venue of a prosecution under this section is in Travis
7-20 County.
7-21 Sec. 161.203. PROPERTY SUBJECT TO SEIZURE. A peace officer
7-22 may seize without a warrant:
7-23 (1) any winnings or gross receipts on which the tax
7-24 imposed by this chapter has not been paid;
7-25 (2) any counterfeit registration certificate or tax
7-26 payment receipt used or intended for use in violation of this
7-27 chapter;
8-1 (3) any gambling device, gambling paraphernalia, raw
8-2 material, products, containers, or equipment of any kind used or
8-3 intended for use in violation of this chapter; or
8-4 (4) any conveyance, including a vehicle, vessel, or
8-5 aircraft, used or intended for use to transport or in any manner
8-6 facilitate the transportation, receipt, possession, concealment, or
8-7 delivery of any gross receipts on which the tax has not been paid
8-8 in violation of Section 161.101(a)(2).
8-9 Sec. 161.204. FORFEITURE. (a) Property seized under
8-10 Section 161.203 is subject to forfeiture to the state in the same
8-11 manner as provided for forfeiture of seized property under Chapter
8-12 103, Alcoholic Beverage Code. Property forfeited to the state that
8-13 is not ordered destroyed may be used by the seizing agency for
8-14 official purposes or sold at public auction in the manner provided
8-15 by law for sheriff's sales. The proceeds from the sale of property
8-16 forfeited under this section, after satisfaction of all costs,
8-17 shall be disposed of in the manner provided for by Article 59.06,
8-18 Code of Criminal Procedure.
8-19 (b) The right of the comptroller to collect the tax imposed
8-20 by this chapter, including applicable penalty and interest, is
8-21 subordinate to the right of a federal, state, or local law
8-22 enforcement authority to seize, forfeit, and retain property under
8-23 any criminal forfeiture law of this state or of the United States.
8-24 A lien filed by the comptroller as a result of the failure of a
8-25 person to pay the tax, penalty, or interest due under this chapter
8-26 is also subordinate to those rights. This section does not affect
8-27 the validity of a lien or a collection action relating to the tax
9-1 imposed by this chapter under any other circumstance.
9-2 Sec 161.205. SETTLEMENT OR COMPROMISE OF TAX. (a) The
9-3 comptroller may settle or compromise a tax, penalty, or interest
9-4 imposed under this chapter only if:
9-5 (1) the prosecutor of a criminal offense under this
9-6 chapter or of another offense arising out of the same incident or
9-7 transaction requests in writing that the comptroller settle or
9-8 compromise and specifies the reasons for the request; and
9-9 (2) the comptroller determines that the settlement or
9-10 compromise is in the best interest of the state.
9-11 (b) The prosecutor of a criminal offense under this chapter
9-12 or of another criminal offense arising out of the same incident or
9-13 transaction or the taxpayer or the taxpayer's representative may
9-14 request in writing that the comptroller defer an administrative
9-15 hearing on a determination made on this chapter until a trial has
9-16 been completed in the criminal case involving the same incident or
9-17 transaction or another disposition has been made of the case. The
9-18 comptroller may comply with a request to defer an administrative
9-19 hearing if the comptroller determines that the deferral would be in
9-20 the best interest of the state. This subsection does not prohibit
9-21 the comptroller from filing a lien or taking any other action to
9-22 collect the tax in the manner permitted under this code before the
9-23 conclusion of an administrative hearing.
9-24 (Sections 161.206-161.300 reserved for expansion
9-25 SUBCHAPTER D. DISPOSITION OF PROCEEDS
9-26 Sec. 161.301. DISPOSITION OF PROCEEDS. All proceeds from
9-27 the collection of the tax, penalty, and interest imposed by this
10-1 chapter shall be deposited to the credit of the general revenue
10-2 fund. The fine imposed by Section 161.201(e) and the fine provided
10-3 by law for a felony or misdemeanor shall be deposited to the credit
10-4 of the county treasury of the county in which the offense occurred.
10-5 SECTION 2. (a) This Act takes effect September 1, 1993, and
10-6 applies only to winnings or gross receipts taxable under Chapter
10-7 161, Tax Code, as added by this Act, and received on or after
10-8 September 1, 1993.
10-9 (b) The change in law made by this Act applies only to an
10-10 offense committed on or after the effective date of this Act. For
10-11 purposes of this Act, an offense is committed before the effective
10-12 date of this Act if any element of the offense occurs before that
10-13 date.
10-14 (c) An offense committed before the effective date of this
10-15 Act is covered by the law in effect when the offense was committed,
10-16 and the former law is continued in effect for this purpose.
10-17 SECTION 3. The importance of this legislation and the
10-18 crowded condition of the calendars in both houses create an
10-19 emergency and an imperative public necessity that the
10-20 constitutional rule requiring bills to be read on three several
10-21 days in each house be suspended, and this rule is hereby suspended.