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.