By Horn                                               H.B. No. 1760
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the sales tax treatment of nonresidential real property
    1-3  construction services; and declaring an emergency.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 151.0047, Tax Code, is amended to read as
    1-6  follows:
    1-7        Sec. 151.0047.  "Nonresidential Real Property Construction
    1-8  Services  <Repairs and Remodeling>." "Nonresidential real property
    1-9  construction services <repairs and remodeling> means the repair,
   1-10  restoration, remodeling, maintenance, <or> modification,
   1-11  demolition, or initial construction of an improvement to real
   1-12  property other than<:> residential real property, as defined in
   1-13  Section 151.056.
   1-14              <(1)  a structure or separate part of a structure used
   1-15  as a residence by an owner of the structure or of the separate part
   1-16  of the structure; or>
   1-17              <(2)  an improvement immediately adjacent to a
   1-18  structure described by Subdivision (1) of this section and used in
   1-19  the residential occupancy of the structure or separate part of the
   1-20  structure by the owner using the structure or part as a residence.>
   1-21        SECTION 2.  Subsection (a), Section 151.0101, Tax Code, is
   1-22  amended to read as follows:
   1-23        Sec. 151.0101.  "Taxable Services."  (a)  "Taxable services"
    2-1  means:
    2-2              (1)  amusement services;
    2-3              (2)  cable television services;
    2-4              (3)  personal services;
    2-5              (4)  motor vehicle parking and storage services;
    2-6              (5)  the repair, remodeling, maintenance, and
    2-7  restoration of tangible personal property, except:
    2-8                    (A)  aircraft;
    2-9                    (B)  a ship, boat, or other vessel, other than:
   2-10                          (i)  a taxable boat or motor as defined by
   2-11  Section 160.001;
   2-12                          (ii)  a sports fishing boat; or
   2-13                          (iii)  any other vessel used for pleasure;
   2-14                    (C)  the repair, maintenance, and restoration of
   2-15  a motor vehicle; and
   2-16                    (D)  the repair, maintenance, creation, and
   2-17  restoration of a computer program, including its development and
   2-18  modification, not sold by the person performing the repair,
   2-19  maintenance, creation, or restoration service;
   2-20              (6)  telecommunications services;
   2-21              (7)  credit reporting services;
   2-22              (8)  debt collection services;
   2-23              (9)  insurance services;
   2-24              (10)  information services;
   2-25              (11)  real property services;
    3-1              (12)  data processing services;
    3-2              (13)  nonresidential real property construction
    3-3  services <repair and remodeling>;
    3-4              (14)  security services; and
    3-5              (15)  telephone answering services.
    3-6        SECTION 3.  The title, and Subsections (a), (b), and (d),
    3-7  Section 151.056, Tax Code, are  amended to read as follows:
    3-8        Sec. 151.056.  PROPERTY CONSUMED IN CONTRACTS TO IMPROVE
    3-9  RESIDENTIAL REAL PROPERTY.  (a)  A contractor who improves
   3-10  residential real property is the consumer of tangible personal
   3-11  property furnished by him and incorporated into the property of his
   3-12  customer if the contract between the contractor and his customer
   3-13  contains a lump-sum price covering both the performance of the
   3-14  service and the furnishing of the necessary incidental materials.
   3-15        (b)  A contractor who improves residential real property is
   3-16  the seller of tangible personal property furnished by him and
   3-17  incorporated into the property of his customer, from whom he shall
   3-18  collect the tax, if the contract between the contractor and his
   3-19  customer contains separate amounts for the performance of the
   3-20  service and for the furnishing of the necessary incidental
   3-21  material.  The tax rate is applied to the price of the materials as
   3-22  agreed in the contract or the price of the materials to the
   3-23  contractor, whichever is the greater.
   3-24        (d)  In this section:<,>
   3-25              (1)  "contractor" means a person, other than one who
    4-1  makes sales of taxable services, who makes an improvement on real
    4-2  estate and who, as a necessary or incidental part of the service,
    4-3  incorporates tangible personal property into the property improved;
    4-4  and <.>
    4-5              (2)  "residential" means:
    4-6                    (i)  property used as a family dwelling or a
    4-7  multifamily apartment or housing complex, nursing homes,
    4-8  condominiums, or retirement homes.  The term does not include a
    4-9  hotel or other facility which is subject to the hotel occupancy
   4-10  tax; or
   4-11                    (ii)  a building listed in the National Register
   4-12  of Historic Places.
   4-13        SECTION 4.  Chapter 151, Tax Code, is amended by adding a new
   4-14  Section 151.0561 to read as follows:
   4-15        Sec. 151.0561.  CONTRACTS TO PERFORM NONRESIDENTIAL REAL
   4-16  PROPERTY CONSTRUCTION SERVICES.  (a)  The sales price of
   4-17  nonresidential real property construction services is ____
   4-18  percentage of the net contract price, as defined in Subsection (b)
   4-19  of this section.
   4-20        (b)  "Net contract price" means the agreed upon written
   4-21  contract price less, if separately stated in the
   4-22  contract:  engineering fees, architectural fees, and the cost of
   4-23  manufacturing equipment exempted under Section 151.318 of this
   4-24  code.
   4-25        (c)  Persons performing nonresidential construction services
    5-1  may purchase taxable items, other than machinery or equipment, for
    5-2  use or incorporation in the performance of the contract, for
    5-3  resale.
    5-4        SECTION 5.  The title and Subsection (a), Section 151.311,
    5-5  Tax Code, are amended to read as follows:
    5-6        Sec. 151.311.  TAXABLE ITEMS <PROPERTY> INCORPORATED INTO OR
    5-7  USED FOR IMPROVEMENT OF REALTY OF AN EXEMPT ENTITY <OF A SCHOOL
    5-8  DISTRICT OR NONPROFIT HOSPITAL>.  (a)  A taxable item, other than
    5-9  machinery or equipment, purchased for use or incorporation in the
   5-10  performance of a contract for either the improvement of residential
   5-11  real property or nonresidential construction services for an
   5-12  organization exempted under Sections 151.309 or 151.310 of this
   5-13  code, is exempted from the taxes imposed by this chapter.
   5-14  <Tangible personal property purchased by a contractor for use in
   5-15  the performance of a contract for the improvement of realty for a
   5-16  school district or nonprofit hospital is exempted from the taxes
   5-17  imposed by this chapter to the extent of the value of the tangible
   5-18  personal property used or consumed or both in the performance of
   5-19  the contract.  In this section "nonprofit hospital" means a
   5-20  hospital licensed under Chapter 241 or 577, Health and Safety Code,
   5-21  that is operated as a charitable or nonprofit establishment>.
   5-22        SECTION 6.  Section 321.203, Tax Code, is amended by adding a
   5-23  new Subsection (l) to read as follows:
   5-24        (l)  The sale of nonresidential real property construction
   5-25  services is consummated at the location where the services are
    6-1  being performed.
    6-2        SECTION 7.  Section 323.203, Tax Code, is amended by adding a
    6-3  new Subsection (l) to read as follows:
    6-4        (l)  The sale of nonresidential real property construction
    6-5  services is consummated at the location where the services are
    6-6  being performed.
    6-7        SECTION 8.  This Act takes effect October 1, 1993 and applies
    6-8  to all nonresidential real property construction services contracts
    6-9  entered into on or after October 1, 1993.
   6-10        SECTION 9.  The importance of this legislation and the
   6-11  crowded condition of the calendars in both houses create an
   6-12  emergency and imperative public necessity that the constitutional
   6-13  rule requiring bills to be read on three several day in each house
   6-14  be suspended, and this rule is hereby suspended.