1-1  By:  Berlanga (Senate Sponsor - Armbrister)            H.B. No. 995
    1-2        (In the Senate - Received from the House March 24, 1993;
    1-3  March 25, 1993, read first time and referred to Committee on
    1-4  Finance; March 31, 1993, reported favorably by the following vote:
    1-5  Yeas 13, Nays 0; March 31, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Montford           x                               
    1-9        Turner             x                               
   1-10        Armbrister         x                               
   1-11        Barrientos         x                               
   1-12        Bivins             x                               
   1-13        Ellis              x                               
   1-14        Haley              x                               
   1-15        Moncrief           x                               
   1-16        Parker             x                               
   1-17        Ratliff            x                               
   1-18        Sims               x                               
   1-19        Truan              x                               
   1-20        Zaffirini          x                               
   1-21                         A BILL TO BE ENTITLED
   1-22                                AN ACT
   1-23  relating to the collection and disposition of the motor vehicle
   1-24  sales tax on a motor vehicle sold using seller financing.
   1-25        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-26        SECTION 1.  Section 152.001, Tax Code, is amended by adding
   1-27  Subdivision (16) to read as follows:
   1-28              (16)  "Seller-financed sale" means a retail sale of a
   1-29  motor vehicle by a dealer licensed under Article 6686, Revised
   1-30  Statutes, in which the seller collects all or part of the total
   1-31  consideration in periodic payments and retains a lien on the motor
   1-32  vehicle until all payments have been received.  The term does not
   1-33  include a:
   1-34                    (A)  retail sale of a motor vehicle in which a
   1-35  person other than the seller provides the consideration for the
   1-36  sale and retains a lien on the motor vehicle as collateral;
   1-37                    (B)  lease; or
   1-38                    (C)  rental.
   1-39        SECTION 2.  Section 152.021(a), Tax Code, is amended to read
   1-40  as follows:
   1-41        (a)  A tax is imposed on every retail sale of every motor
   1-42  vehicle sold in this state.  Except as provided by Section 152.047,
   1-43  the <The> tax is an obligation of and shall be paid by the
   1-44  purchaser of the motor vehicle.
   1-45        SECTION 3.  Sections 152.041(b) and (c), Tax Code, are
   1-46  amended to read as follows:
   1-47        (b)  Except as provided by Section 152.069, the <The> tax
   1-48  assessor-collector may not accept an application unless the tax and
   1-49  any penalty is paid.
   1-50        (c)  Except as provided by Section 152.047, the <The> tax
   1-51  imposed by Section 152.021 of this code is due on the 20th working
   1-52  day after the day that the motor vehicle is delivered to the
   1-53  purchaser.
   1-54        SECTION 4.  Subchapter C, Chapter 152, Tax Code, is amended
   1-55  by adding Sections 152.047 and 152.048 to read as follows:
   1-56        Sec. 152.047.  COLLECTION OF TAX ON SELLER-FINANCED SALE.
   1-57  (a)  Except as inconsistent with this chapter and rules adopted
   1-58  under this chapter, the seller of a motor vehicle shall report and
   1-59  pay the tax imposed on a seller-financed sale to the comptroller on
   1-60  the seller's receipts from seller-financed sales in the same manner
   1-61  as the sales tax is reported and paid by a retailer under Chapter
   1-62  151.
   1-63        (b)  If a note, mortgage, account receivable, or other
   1-64  document evidencing the purchaser's indebtedness to the seller of a
   1-65  vehicle sold subject to a seller-financed sale does not bear
   1-66  interest, it will be conclusively presumed that the total
   1-67  consideration for the sale is principal.
   1-68        (c)  If a note, mortgage, account receivable, or other
    2-1  document evidencing the purchaser's indebtedness to the seller of a
    2-2  vehicle sold subject to a seller-financed sale bears interest, it
    2-3  is conclusively presumed that interest accrues and is paid by the
    2-4  purchaser on a straight line basis.
    2-5        (d)  The seller shall add the tax imposed on a
    2-6  seller-financed sale to the sales price of the vehicle sold, and
    2-7  when added, the tax is:
    2-8              (1)  a part of the sales price;
    2-9              (2)  a debt owed to the seller by the purchaser; and
   2-10              (3)  recoverable at law in the same manner as the sales
   2-11  price.
   2-12        (e)  Regardless of the accounting method used by the seller,
   2-13  the seller shall collect and pay the tax imposed on a
   2-14  seller-financed sale to the comptroller as the seller receives the
   2-15  proceeds of the sale.
   2-16        (f)  If the seller fails to apply, not later than the 60th
   2-17  day after the date the motor vehicle is delivered to the purchaser,
   2-18  for registration and a Texas certificate of title for a motor
   2-19  vehicle sold in a seller-financed sale in accordance with Section
   2-20  152.069, the seller is liable for all unpaid tax on the total
   2-21  consideration, and the tax is due and must be sent to the
   2-22  comptroller with the first report after the expiration of the
   2-23  prescribed period.
   2-24        (g)  If a seller factors, assigns, or otherwise transfers the
   2-25  right to receive payments, all unpaid tax is due on the total
   2-26  consideration not reported at the time the agreement is factored,
   2-27  assigned, or otherwise transferred.  The seller shall report and
   2-28  submit the tax in the report period in which the right to receive
   2-29  the payment is factored, assigned, or otherwise transferred.  The
   2-30  seller may not take a deduction in the amount of tax due if a
   2-31  transfer at a discount is made.
   2-32        (h)  The comptroller may proceed against the purchaser in a
   2-33  seller-financed sale for the amount of any tax not paid by the
   2-34  purchaser.
   2-35        (i)  The comptroller shall adopt rules and promulgate forms
   2-36  necessary to implement this section.
   2-37        Sec. 152.048.  GROSS RECEIPTS PRESUMED SUBJECT TO TAX.
   2-38  (a)  All gross receipts of a seller required to obtain a permit
   2-39  under Section 152.065 are presumed to be subject to the provisions
   2-40  of this code.
   2-41        (b)  The presumption provided by Subsection (a) does not
   2-42  apply to receipts:
   2-43              (1)  on which a tax imposed under other law is computed
   2-44  and paid to the comptroller; or
   2-45              (2)  for which a properly completed resale or exemption
   2-46  certificate is accepted by the seller.
   2-47        (c)  The seller may overcome the presumption under Subsection
   2-48  (a) by credible evidence that the receipts are not from a
   2-49  seller-financed sale or that the tax on those receipts has been
   2-50  sent to the comptroller.
   2-51        SECTION 5.  Subchapter D, Chapter 152, Tax Code, is amended
   2-52  by adding Section 152.0635 to read as follows:
   2-53        Sec. 152.0635.  RECORDS OF CERTAIN SELLERS.  (a)  In addition
   2-54  to the requirements prescribed by Section 152.063, a seller engaged
   2-55  in seller-financed sales who has a permit under Section 152.065
   2-56  shall keep the records required by this section.
   2-57        (b)  For seller-financed sales, the seller shall keep at the
   2-58  seller's principal office for at least four years from the date on
   2-59  which the seller receives the final payment for the motor vehicle:
   2-60              (1)  the lienholder's copy of the receipt for title
   2-61  application, registration, and motor vehicle tax issued by a county
   2-62  tax assessor-collector; and
   2-63              (2)  a ledger or other document containing a complete
   2-64  record of the payment history for that motor vehicle, including:
   2-65                    (A)  the name and address of the purchaser;
   2-66                    (B)  the total consideration;
   2-67                    (C)  the amount of the down payment received at
   2-68  the time the motor vehicle is sold;
   2-69                    (D)  the date and amount of each subsequent
   2-70  payment;
    3-1                    (E)  the date of sale; and
    3-2                    (F)  the date of any repossession.
    3-3        (c)  For retail sales paid in full at the time of sale, the
    3-4  seller shall keep at the seller's principal office for at least
    3-5  four years from the date of the sale documentation of complete
    3-6  payment in the form of:
    3-7              (1)  a copy of the payment instrument or a receipt for
    3-8  cash received; and
    3-9              (2)  a copy of the receipt for title application,
   3-10  registration, and motor vehicle tax issued by the county tax
   3-11  assessor-collector or a statement by the purchaser that is signed
   3-12  and dated and indicates the date that each of the documents
   3-13  necessary to apply for the title, register the vehicle, and pay the
   3-14  motor vehicle sales tax were provided to the purchaser by the
   3-15  seller.
   3-16        (d)  The document required under Subsection (c)(2) shall also
   3-17  include a statement that the seller advised the purchaser that the
   3-18  purchaser must pay a tax to the county tax assessor-collector.
   3-19        (e)  For sales for resale, the seller shall keep at the
   3-20  seller's principal office for at least four years from the date of
   3-21  the sale the purchaser's written statement of resale on a form
   3-22  prescribed by the comptroller.
   3-23        SECTION 6.  Section 152.065, Tax Code, is amended to read as
   3-24  follows:
   3-25        Sec. 152.065.  REQUIRED PERMITS <REGISTRATION AS A RETAILER;
   3-26  PERMIT>.  A motor vehicle owner required to collect, report, and
   3-27  pay a tax on gross rental receipts imposed by this chapter and a
   3-28  seller required to collect, report, and pay a tax on a
   3-29  seller-financed sale shall register as a retailer with the
   3-30  comptroller in the same manner as is required of a retailer under
   3-31  Subchapter F, <of> Chapter 151 <of this code.  The owner shall also
   3-32  obtain from the comptroller a motor vehicle retailer's permit>.
   3-33        SECTION 7.  Section 152.068(a), Tax Code, is amended to read
   3-34  as follows:
   3-35        (a)  The comptroller may revoke or suspend any one or more of
   3-36  the <motor vehicle retailer's> permits held by a person if that
   3-37  person fails to comply with a provision of this chapter or with a
   3-38  rule of the comptroller relating to a tax imposed by this chapter.
   3-39        SECTION 8.  Subchapter D, Chapter 152, Tax Code, is amended
   3-40  by adding Section 152.069 to read as follows:
   3-41        Sec. 152.069.  REGISTRATION OF MOTOR VEHICLE USING
   3-42  SELLER-FINANCING.  (a)  The seller of a motor vehicle sold in a
   3-43  seller-financed sale shall apply for the registration of, and a
   3-44  Texas certificate of title for, the motor vehicle in the name of
   3-45  the purchaser to the appropriate county tax assessor-collector.
   3-46        (b)  The seller shall provide to the county tax
   3-47  assessor-collector a joint affidavit as prescribed by Section
   3-48  152.062 in lieu of the motor vehicle sales tax imposed by Section
   3-49  152.021.  The affidavit shall include the seller's permit
   3-50  identification number issued by the comptroller.
   3-51        SECTION 9.  Subsection (a), Section 10, Chapter 88, General
   3-52  Laws, Acts of the 41st Legislature, 2nd Called Session, 1929
   3-53  (Article 6675a-10, Vernon's Texas Civil Statutes), is amended to
   3-54  read as follows:
   3-55        (a)  Except as provided by Subsections (c-1), (c-2), (c-3),
   3-56  and (c-4) of this section, on Monday of each week each County Tax
   3-57  Collector shall deposit in the County Depository of his County to
   3-58  the credit of the County Road and Bridge Fund an amount equal to
   3-59  one hundred per cent (100%) of the net collections made hereunder
   3-60  during the preceding week until the amount so deposited for the
   3-61  current calendar year shall have reached a total sum of Sixty
   3-62  Thousand Dollars ($60,000), plus Three Hundred and Fifty Dollars
   3-63  ($350) for each mile of county road, not to exceed five hundred
   3-64  (500) miles, maintained by the County according to the latest data
   3-65  available from the State Department of Highways and Public
   3-66  Transportation, plus an amount equal to five per cent (5%) of the
   3-67  tax and penalties collected by the County Tax Collector under
   3-68  Chapter 152, Tax Code, in the preceding calendar year, plus an
   3-69  amount equal to five per cent (5%) of the tax and penalties
   3-70  collected by the Comptroller of Public Accounts under Section
    4-1  152.047, Tax Code, in the preceding calendar year.  All of the
    4-2  amount of the tax and penalties collected under Chapter 152, Tax
    4-3  Code, in the preceding calendar year that is retained by a county
    4-4  under this subsection shall be used for county road construction,
    4-5  maintenance, and rehabilitation, for bridge construction,
    4-6  maintenance, and rehabilitation, for purchase of right-of-way for
    4-7  road or highway purposes, or for relocation of utilities for road
    4-8  or highway purposes.  On or before January 30 of each year, each
    4-9  county shall file a report, in a form promulgated by the State
   4-10  Department of Highways and Public Transportation, with the State
   4-11  Engineer-Director for the State Department of Highways and Public
   4-12  Transportation that accurately sets forth the amounts and purposes
   4-13  of all expenditures of the tax and penalties collected under
   4-14  Chapter 152, Tax Code, and retained by the county under this
   4-15  subsection.
   4-16        SECTION 10.  Section  152.103(a), Tax Code, is amended to
   4-17  read as follows:
   4-18        (a)  A seller commits an offense if he fails to make and
   4-19  retain complete records for the period of four years as provided by
   4-20  this chapter <Section 152.063(a) of this code>.
   4-21        SECTION 11.  This Act takes effect October 1, 1993, and
   4-22  applies to the sale of a motor vehicle on or after that date.  The
   4-23  sale of a motor vehicle before the effective date of this Act is
   4-24  governed by the law in effect when the motor vehicle was sold, and
   4-25  that law is continued in effect for that purpose.
   4-26        SECTION 12.  The importance of this legislation and the
   4-27  crowded condition of the calendars in both houses create an
   4-28  emergency and an imperative public necessity that the
   4-29  constitutional rule requiring bills to be read on three several
   4-30  days in each house be suspended, and this rule is hereby suspended.
   4-31                               * * * * *
   4-32                                                         Austin,
   4-33  Texas
   4-34                                                         March 31, 1993
   4-35  Hon. Bob Bullock
   4-36  President of the Senate
   4-37  Sir:
   4-38  We, your Committee on Finance to which was referred H.B. No. 995,
   4-39  have had the same under consideration, and I am instructed to
   4-40  report it back to the Senate with the recommendation that it do
   4-41  pass and be printed.
   4-42                                                         Montford,
   4-43  Chairman
   4-44                               * * * * *
   4-45                               WITNESSES
   4-46                                                  FOR   AGAINST  ON
   4-47  ___________________________________________________________________
   4-48  Name:  Allen Ray                                 x
   4-49  Representing:  Tx Independent Auto Dealers
   4-50  City:  Austin
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