By: Romo H.B. No. 1253
73R5206 JBN-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the administration, collection, enforcement, and
1-3 application of various taxes and fees; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 101.003, Tax Code, is amended by amending
1-6 Subdivisions (8) and (11) and adding Subdivision (12) to read as
1-7 follows:
1-8 (8) "Taxpayer" means a person liable for a tax, fee,
1-9 assessment, or other amount imposed by a statute or under the
1-10 authority of a statutory function administered by the comptroller
1-11 <this title>.
1-12 (11) "Report" means a tax return, declaration,
1-13 statement, or other document required to be filed with the
1-14 comptroller <by a provision of this title>.
1-15 (12) "Obligation" means the duty of a person to pay a
1-16 tax, fee, assessment, or other amount or to make, file, or keep a
1-17 report, certificate, affidavit, or other document.
1-18 SECTION 2. Subchapter A, Chapter 111, Tax Code, is amended
1-19 by adding Section 111.0022 to read as follows:
1-20 Sec. 111.0022. APPLICATION TO OTHER LAWS ADMINISTERED BY
1-21 COMPTROLLER. This subtitle and Subtitle A of this title apply to
1-22 the administration, collection, and enforcement of other taxes,
1-23 fees, and charges, including penalties, that the comptroller is
1-24 required or authorized to collect or administer under other law, to
2-1 the extent that the other law does not conflict with this subtitle
2-2 or Subtitle A of this title.
2-3 SECTION 3. Sections 111.021(e), (g), and (h), Tax Code, are
2-4 amended to read as follows:
2-5 (e) A notice under this section that attempts to prohibit
2-6 the transfer or disposal of an asset possessed or controlled by a
2-7 bank is <not> effective if <unless> it is delivered or mailed to
2-8 the principal or any branch office of the bank including any <or
2-9 the> office of the bank at which the deposit is carried or the
2-10 credit or property is held.
2-11 (g) At any time during the <last 45 days of the> 60-day
2-12 period as stated in Subdivision (2) of Subsection (d) of this
2-13 section, the comptroller may levy upon the asset or debt. The levy
2-14 shall be accomplished by delivery of a notice of levy, upon receipt
2-15 of which the person possessing the asset or debt shall transfer the
2-16 asset to the comptroller or pay to the comptroller the amount owed
2-17 to the delinquent or to the person against whom the unpaid
2-18 determination is made.
2-19 (h) A notice delivered under this section is effective:
2-20 (1) at the time of delivery against all property,
2-21 rights to property, credits, and/or debts involving the delinquent
2-22 taxpayer which are not at the time of the <such> notice subject to
2-23 an attachment, garnishment, or execution issued through a judicial
2-24 process; and
2-25 (2) against all property, rights to property, credits
2-26 and/or debts involving the delinquent taxpayer that come into the
2-27 possession or control of the person served with the notice within
3-1 the 60-day period provided by Subdivision (2) of Subsection (d) of
3-2 this section.
3-3 SECTION 4. Section 111.051, Tax Code, is amended to read as
3-4 follows:
3-5 Sec. 111.051. REPORTS AND PAYMENTS; DUE DATES; METHOD OF
3-6 PAYMENT. (a) The comptroller may set the date for filing a report
3-7 for and making a payment of a tax imposed by this title.
3-8 (b) A date set by the comptroller under this section
3-9 prevails over a different date prescribed by this title for the
3-10 filing of a report for or the payment of a tax, except that the
3-11 comptroller may only set a report or payment date for the state
3-12 sales and use tax that conflicts with the dates prescribed by
3-13 Chapter 151 of this code in case of public calamity or natural
3-14 disaster.
3-15 (c) The comptroller may require that all payments from a
3-16 taxpayer who files tax reports monthly and remits three or more
3-17 dishonored or insufficient funds checks or drafts within a
3-18 six-month period be remitted using certified instruments. The
3-19 comptroller may require that all payments from a taxpayer who files
3-20 tax reports quarterly and remits three or more dishonored or
3-21 insufficient funds checks or drafts within an 18-month period be
3-22 remitted by using certified instruments. In this subsection,
3-23 "certified instruments" includes cashier's checks and money orders.
3-24 The comptroller shall send written notice of a payment restriction
3-25 under this subsection to the taxpayer at the business address shown
3-26 on the comptroller's records. A failure to remit a payment by a
3-27 certified instrument after imposition of the payment restriction by
4-1 the comptroller is grounds for the suspension and revocation of a
4-2 permit or license as provided by Section 111.0047 of this code.
4-3 SECTION 5. Section 111.201, Tax Code, is amended to read as
4-4 follows:
4-5 Sec. 111.201. ASSESSMENT AND REFUND LIMITATION. (a) No tax
4-6 imposed by this title may be assessed after four years from the
4-7 date that the tax becomes due and payable.
4-8 (b) No refund of any tax imposed by this title may be made
4-9 by the comptroller after four years after the date that the tax was
4-10 paid, except on tolling of the statute of limitations for refunds
4-11 as provided in this title.
4-12 SECTION 6. Section 151.0028(a), Tax Code, is amended to read
4-13 as follows:
4-14 (a) "Amusement services" means the provision of amusement,
4-15 entertainment, or recreation<, but does not include the provision
4-16 of educational or health services if prescribed by a licensed
4-17 practitioner of the healing arts for the primary purpose of
4-18 education or health maintenance or improvement>.
4-19 SECTION 7. Subchapter D, Chapter 151, Tax Code, is amended
4-20 by adding Section 151.108 to read as follows:
4-21 Sec. 151.108. RETAILER'S CUSTOMERS LIST. (a) The
4-22 comptroller may require a retailer who is engaged in business in
4-23 this state by means of any of the activities listed in
4-24 Section 151.107(a) of this code to provide the comptroller with a
4-25 list of the retailer's customers in this state. This requirement
4-26 may be enforced against a retailer without regard to whether the
4-27 retailer has contacts in this state that are sufficient to require
5-1 it to obtain a sales tax permit. A retailer's customers list
5-2 provided under this section may be used for the enforcement and
5-3 collection of taxes due under this chapter.
5-4 (b) A customers list provided to the comptroller by
5-5 retailers under this section shall be kept confidential and is not
5-6 subject to disclosure under any state law.
5-7 (c) A retailer who fails to provide the comptroller with a
5-8 list of the retailer's customers in this state when requested by
5-9 the comptroller is subject to a civil fine of not more than
5-10 $25,000.
5-11 (d) A district court of Travis County has exclusive
5-12 jurisdiction, on petition by the attorney general, to enforce this
5-13 section.
5-14 SECTION 8. Section 151.304, Tax Code, is amended by adding
5-15 Subsection (g) to read as follows:
5-16 (g) A person who holds a permit issued under this chapter
5-17 and makes a purchase from a person entitled to claim the exemption
5-18 provided by Subsection (b)(1) of this section shall accrue use tax
5-19 on the transaction and remit it to the comptroller.
5-20 SECTION 9. Section 151.324, Tax Code, is amended by adding
5-21 Subsection (e) to read as follows:
5-22 (e) An exemption under this section does not apply to
5-23 equipment that is removed from this state and then returned to this
5-24 state for storage or use.
5-25 SECTION 10. Subchapter L, Chapter 151, Tax Code, is amended
5-26 by adding Section 151.7031 to read as follows:
5-27 Sec. 151.7031. FAILURE TO REPORT ON THREE OR MORE OCCASIONS;
6-1 CIVIL PENALTY. A person who is required to file a report under
6-2 this chapter, who fails to file the report under this chapter, and
6-3 who has on two or more previous occasions failed to file a timely
6-4 report under this chapter shall pay an additional penalty of $50.
6-5 The penalty provided by this section is assessed without regard to
6-6 whether the taxpayer subsequently files the report or whether no
6-7 taxes were due from the taxpayer for the reporting period under the
6-8 required report.
6-9 SECTION 11. Section 151.707, Tax Code, is amended to read as
6-10 follows:
6-11 Sec. 151.707. RESALE OR EXEMPTION CERTIFICATE; CRIMINAL
6-12 PENALTY. (a) A person commits an offense if the person:
6-13 (1) intentionally or knowingly makes a false entry in,
6-14 or a fraudulent alteration of, an exemption or resale certificate;
6-15 (2) makes, presents, or uses an exemption certificate
6-16 or resale certificate with knowledge that it is false and with the
6-17 intent that it be accepted as a valid resale or exemption
6-18 certificate; or
6-19 (3) intentionally destroys, conceals, removes, or
6-20 otherwise impairs the verity, legibility, or availability of an
6-21 exemption or resale certificate <gives a resale certificate to a
6-22 seller for property that the person knows, at the time of purchase,
6-23 is purchased for the purpose of use and not for the purpose of
6-24 resale, lease, or rental by the person to another in the regular
6-25 course of business or for transfer as an integral part of a taxable
6-26 service performed in the regular course of business>.
6-27 (b) It is an exception to the application of Subsection
7-1 (a)(3) of this section that the exemption certificate or resale
7-2 certificate is destroyed under a legal authorization.
7-3 (c) An offense under Subsection (a)(1) or (a)(2) of this
7-4 section is:
7-5 (1) a Class C misdemeanor if the tax avoided by the
7-6 use of the exemption or resale certificate is less than $20;
7-7 (2) a Class B misdemeanor if the tax avoided by the
7-8 use of the exemption or resale certificate is $20 or more, but less
7-9 than $200;
7-10 (3) a Class A misdemeanor if the tax avoided by the
7-11 use of the exemption or resale certificate is $200 or more, but
7-12 less than $750;
7-13 (4) a felony of the third degree if the tax avoided by
7-14 the use of the exemption or resale certificate is $750 or more, but
7-15 less than $20,000; or
7-16 (5) a felony of the second degree if the tax avoided
7-17 by the use of the exemption or resale certificate is $20,000 or
7-18 more. <An offense under this section is a misdemeanor punishable
7-19 by a fine of not more than $500.>
7-20 SECTION 12. Subchapter A, Chapter 153, Tax Code, is amended
7-21 by adding Section 153.0061 to read as follows:
7-22 Sec. 153.0061. SUMMARY SUSPENSION OF PERMIT. (a) The
7-23 comptroller may suspend a person's permit without notice or a
7-24 hearing for the person's failure to comply with this chapter or a
7-25 rule adopted under this chapter if the person's continued operation
7-26 constitutes an immediate and substantial threat to the collection
7-27 of taxes imposed by this chapter and attributable to the person's
8-1 operation.
8-2 (b) If the comptroller summarily suspends a person's permit,
8-3 proceedings for a preliminary hearing before the comptroller or the
8-4 comptroller's representative must be initiated simultaneously with
8-5 the summary suspension. The preliminary hearing shall be set for a
8-6 date not later than 10 days after the date of the summary
8-7 suspension, unless the parties agree to a later date.
8-8 (c) At the preliminary hearing, the permit holder must show
8-9 cause why the permit should not remain suspended pending a final
8-10 hearing on suspension or revocation.
8-11 (d) The Administrative Procedure and Texas Register Act
8-12 (Article 6252-13a, Vernon's Texas Civil Statutes) does not apply to
8-13 a summary suspension under this section.
8-14 (e) To initiate a proceeding to suspend summarily a person's
8-15 permit, the comptroller shall serve notice on the permit holder
8-16 informing the permit holder of the right to a preliminary hearing
8-17 before the comptroller or the comptroller's representative and of
8-18 the time and place of the preliminary hearing. The notice must be
8-19 personally served on the permit holder or an officer, employee, or
8-20 agent of the permit holder, or sent by certified or registered
8-21 mail, return receipt requested, to the permit holder's mailing
8-22 address as it appears on the comptroller's records. The notice
8-23 must state the alleged violations that constitute the grounds for
8-24 summary suspension. The suspension is effective at the time the
8-25 notice is served. If the notice is served in person, the permit
8-26 holder shall immediately surrender the permit to the comptroller or
8-27 to the comptroller's representative. If notice is served by mail,
9-1 the permit holder shall immediately return the permit to the
9-2 comptroller.
9-3 (f) Section 153.006, governing hearings for permit
9-4 cancellation or refusal to issue a permit under this chapter,
9-5 governs a final administrative hearing under this section.
9-6 SECTION 13. Section 153.007, Tax Code, is amended to read as
9-7 follows:
9-8 Sec. 153.007. Enforcement of Permit Cancellation,
9-9 SUSPENSION, or Refusal. (a) The comptroller may examine any books
9-10 and records incident to the conduct of the business of a person
9-11 whose permit has been canceled or suspended on the person's failure
9-12 to file the reports required by this chapter or to remit all taxes
9-13 due. The comptroller shall issue an audit deficiency determination
9-14 of the amount of delinquent taxes, penalties, and interest,
9-15 containing a demand for payment. The deficiency determination
9-16 shall provide that if neither a payment is made nor a request for a
9-17 redetermination is filed within 30 days after the date of the
9-18 notice of the deficiency, the amount of the determination becomes
9-19 due and payable. If the amount is not paid on or before the 44th
9-20 day after service of the notice of the deficiency determination,
9-21 the bond or other security required under this chapter shall be
9-22 forfeited. The demand for payment shall be addressed to both the
9-23 surety or sureties and the person who owes the delinquency.
9-24 (b) If the forfeiture of the bond or other security does not
9-25 satisfy the delinquency, the comptroller shall certify the taxes,
9-26 penalty, and interest delinquent to the attorney general, who may
9-27 file suit against the person or his surety or both to collect the
10-1 amount due. After being given notice of an order of cancellation
10-2 or summary suspension, it shall be unlawful for any person to
10-3 continue to operate his business under a canceled or suspended
10-4 permit. The attorney general may file suit to enjoin the person
10-5 from continuing to operate under his permit until the person's
10-6 permit is reissued by the comptroller.
10-7 (c) An appeal from an order of the comptroller canceling or
10-8 suspending, or refusing the issuance or reissuance of, a permit may
10-9 be taken to a district court of Travis County by the aggrieved
10-10 permittee or applicant. The trial shall be de novo under the same
10-11 rules as ordinary civil suits, except that:
10-12 (1) an appeal must be perfected and filed within 30
10-13 days after the effective date of the order, decision, or ruling of
10-14 the comptroller;
10-15 (2) the trial of the case shall begin within 10 days
10-16 after its filing; and
10-17 (3) the order, decision, or ruling of the comptroller
10-18 may be suspended or modified by the court pending a trial on the
10-19 merits.
10-20 SECTION 14. Subchapter B, Chapter 403, Government Code, is
10-21 amended by adding Section 403.0111 to read as follows:
10-22 Sec. 403.0111. SUBPOENA POWER. The comptroller may issue a
10-23 subpoena if the comptroller determines that the subpoena is
10-24 necessary for the proper discharge of the duties imposed by law on
10-25 the comptroller. The comptroller may subpoena a person to appear
10-26 at a place and time stipulated in the subpoena for the taking of
10-27 the person's deposition, and the subpoena may require the person to
11-1 produce at the time of the deposition books, documents, records,
11-2 papers, accounts, and all other objects that may be necessary to
11-3 make a full determination of the facts essential to the completion
11-4 of an investigation by the comptroller.
11-5 SECTION 15. Section (1), Article 8802, Revised Statutes, is
11-6 amended to read as follows:
11-7 (1) Every "owner", save an owner holding an import license
11-8 and holding coin-operated machines solely for re-sale, who
11-9 exhibits, displays, or who permits to be exhibited or displayed in
11-10 this State any "coin-operated machine" shall pay, and there is
11-11 hereby levied on each "coin-operated machine", as defined herein in
11-12 Article 8801, except as are exempt herein, an annual occupation tax
11-13 of $60.00. The tax shall be paid to the comptroller by cashier's
11-14 check or money order. The annual tax levied by this chapter may be
11-15 collected by the comptroller on a quarterly basis. The comptroller
11-16 may establish procedures for quarterly collection and set due dates
11-17 for the tax payments. The tax due from the owner of a
11-18 coin-operated machine first exhibited or displayed in this State
11-19 later than March 31 shall be prorated on a quarterly basis, with
11-20 one-fourth of the annual tax due for each quarter or portion of a
11-21 quarter remaining in the calendar year. No refund or credit of the
11-22 annual tax levied by this chapter may be allowed to any owner who
11-23 ceases the exhibition or display of any coin-operated machine prior
11-24 to the end of any calendar year. Subtitle B, Title 2, Tax Code,
11-25 applies to the administration, collection, and enforcement of the
11-26 taxes, penalties, and interest imposed by this chapter.
11-27 SECTION 16. Section (2), Article 8807, Revised Statutes, is
12-1 amended to read as follows:
12-2 (2) If any individual, company, corporation or association
12-3 who owns, operates, exhibits or displays any coin-operated machine
12-4 in this State, shall violate any provision of this Chapter or any
12-5 rule and regulation promulgated hereunder, the Comptroller may
12-6 investigate the violation and may impose <seek> sanctions,
12-7 including suspension or revocation of a license, permit, or
12-8 registration certificate issued under this chapter.
12-9 SECTION 17. Article 8811, Revised Statutes, is amended to
12-10 read as follows:
12-11 Art. 8811. VIOLATIONS OF ACT; PENALTY; ENFORCEMENT <SUIT TO
12-12 RECOVER PENALTY>. If any "owner" of a coin-operated machine within
12-13 this State shall (a) permit any coin-operated machine under his
12-14 control to be operated, exhibited or displayed within this State
12-15 without said permit being permanently attached thereto, or (b) if
12-16 any person shall exhibit or display within this State any
12-17 coin-operated machine without having annexed or attached thereto a
12-18 permit issued by the Comptroller showing the payment of the tax due
12-19 thereon for the current year, or (c) if any person exhibits or
12-20 displays a coin-operated machine that is not registered with the
12-21 Comptroller, or (d) shall fail to keep such records, or (e) shall
12-22 refuse or fail to present such records for inspection upon the
12-23 demand of the Comptroller or an authorized representative of the
12-24 Comptroller, or (f) if any person in this State shall use any
12-25 artful device or deceptive practice to conceal any violation of
12-26 this Chapter, or (g) mislead the Comptroller or an authorized
12-27 representative of the Comptroller in the enforcement of this
13-1 Chapter, or (h) if any person in this State shall fail to comply
13-2 with the provisions of this Chapter, or violate the same, or (i) if
13-3 any person in this State shall fail to comply with the rules and
13-4 regulations promulgated by the Comptroller, or violate the same,
13-5 the Comptroller in addition to the other remedies provided in this
13-6 Chapter may assess a penalty in the sum of not less than Fifty
13-7 Dollars ($50) <Five Dollars ($5)> nor more than Two Thousand
13-8 Dollars ($2,000) <Five Hundred Dollars ($500)>. Each day's
13-9 violation shall constitute a separate offense and incur another
13-10 penalty, which, if not paid may be recovered by the Comptroller in
13-11 any manner available for the recovery of delinquent taxes under
13-12 Subtitle B, Title 2, Tax Code, or in a suit by the Attorney General
13-13 of this State in a court of competent jurisdiction in Travis
13-14 County, Texas<, or any court having jurisdiction>.
13-15 SECTION 18. Subdivision (2), Section 8, Article 8817,
13-16 Revised Statutes, is amended to read as follows:
13-17 (2) A person who knowingly violates Subdivision (1) of this
13-18 Section is guilty of a Class A <B> misdemeanor. A person who
13-19 knowingly secures or attempts to secure a license under this
13-20 Article by fraud, misrepresentation, or subterfuge is guilty of a
13-21 felony of the second <third> degree.
13-22 SECTION 19. Section 17, Article 8817, Revised Statutes, is
13-23 amended to read as follows:
13-24 Sec. 17. REMOVAL OF PERMIT PROHIBITED; PENALTY. (1) A
13-25 person may not <intentionally> remove or cause to be removed a
13-26 current tax permit from a music or skill or pleasure coin-operated
13-27 machine.
14-1 (2) A person who violates this Section is guilty of a Class
14-2 B <C> misdemeanor.
14-3 SECTION 20. Subdivision (1), Section 20, Article 8817,
14-4 Revised Statutes, is amended to read as follows:
14-5 (1) The Comptroller may refuse to issue or renew a license
14-6 or registration certificate or may revoke or suspend a license or
14-7 registration certificate issued pursuant to the authority of this
14-8 Article if:
14-9 (a) the licensee or applicant has <intentionally>
14-10 violated a provision of this Article or a regulation promulgated
14-11 pursuant to the authority of this Article;
14-12 (b) the licensee or applicant has <intentionally>
14-13 failed to answer a question, or <intentionally> made a false
14-14 statement in, or in connection with, his application or renewal;
14-15 (c) the licensee or applicant extends credit without
14-16 registering his intent to do so with the consumer credit
14-17 commission;
14-18 (d) the licensee or applicant uses coercion to
14-19 accomplish a purpose or to engage in conduct regulated by the
14-20 Comptroller;
14-21 (e) a contract or agreement between the licensee or
14-22 applicant and a location owner contains a restriction, of any kind
14-23 and to any degree, on the right of the location owner to purchase,
14-24 agree to purchase, or use a product, commodity, or service not
14-25 regulated under the terms of this Article; or
14-26 (f) failure to suspend or revoke the license would be
14-27 contrary to the intent and purpose of this Article.
15-1 SECTION 21. Article 8817, Revised Statutes, is amended by
15-2 adding Section 27 to read as follows:
15-3 Sec. 27. SUITS BY THE ATTORNEY GENERAL. (1) On request by
15-4 the Comptroller, the attorney general may file suit for an
15-5 injunction prohibiting a person from engaging in business to
15-6 manufacture, own, buy, sell, or rent, lease, trade, lend, or
15-7 furnish to another, or repair, maintain, service, transport within
15-8 the state, store, or import, a music coin-operated machine or a
15-9 skill or pleasure coin-operated machine without a license or
15-10 registration certificate issued under this Article.
15-11 (2) The district courts of Travis County, Texas, have
15-12 exclusive, original jurisdiction of a suit brought under this
15-13 section.
15-14 SECTION 22. The following provisions of the Tax Code are
15-15 repealed:
15-16 (1) Section 151.502;
15-17 (2) Section 151.706; and
15-18 (3) Section 156.101.
15-19 SECTION 23. This Act takes effect September 1, 1993, and
15-20 applies to the collection and enforcement of taxes imposed before,
15-21 on, or after the effective date of this Act.
15-22 SECTION 24. The importance of this legislation and the
15-23 crowded condition of the calendars in both houses create an
15-24 emergency and an imperative public necessity that the
15-25 constitutional rule requiring bills to be read on three several
15-26 days in each house be suspended, and this rule is hereby suspended.