By Oliveira                                           H.B. No. 1893
          Substitute the following for H.B. No. 1893:
          By Oliveira                                       C.S.H.B. No. 1893
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the application and administration of the franchise
    1-3  tax.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 171.001(b), Tax Code, is amended to read
    1-6  as follows:
    1-7        (b)  In this chapter:
    1-8              (1)  "Banking corporation" means each state, national,
    1-9  domestic, or foreign bank, and each bank organized under Section
   1-10  25(a), Federal Reserve Act (12 U.S.C. Secs. 611-631) (edge
   1-11  corporations), but does not include a bank holding company as that
   1-12  term is defined by Section 2, Bank Holding Company Act of 1956 (12
   1-13  U.S.C. Sec. 1841).
   1-14              (2)  "Corporation" includes:
   1-15                    (A)  a limited liability company, as defined
   1-16  under the Texas Limited Liability Company Act; and
   1-17                    (B)  a state or federal savings and loan
   1-18  association.
   1-19              (3)  "Charter" includes a limited liability company's
   1-20  certificate of organization.
   1-21              (4)  "Internal Revenue Code" means the Internal Revenue
   1-22  Code of 1986, as amended and in effect for the federal taxable year
   1-23  beginning on or after January 1, 1992 <1990>, and before January 1,
    2-1  1993 <1991>, and any regulations adopted under that code applicable
    2-2  to that period.
    2-3              (5)  "Officer" and "director" include a limited
    2-4  liability company's directors and managers.
    2-5              (6)  "Savings and loan association" includes a state or
    2-6  federal savings bank.
    2-7              (7)  "Shareholder" includes a limited liability
    2-8  company's member.
    2-9        SECTION 2.  Section 171.052, Tax Code, is amended to read as
   2-10  follows:
   2-11        Sec. 171.152.  CERTAIN CORPORATIONS.
   2-12        A corporation that is an insurance company; surety, guaranty,
   2-13  or fidelity company now required to pay an annual tax measured by
   2-14  their gross receipts, or is organized under Chapter 12 or 16 of the
   2-15  Insurance Code is exempted from the franchise tax.
   2-16        SECTION 3.  Section 171.061, Tax Code, is amended to read as
   2-17  follows:
   2-18        Sec. 171.061.  EXEMPTION--NONPROFIT CORPORATION ORGANIZED FOR
   2-19  EDUCATIONAL PURPOSES
   2-20        A nonprofit corporation organized solely for educational
   2-21  purposes, <including a corporation organized solely to provide a
   2-22  student loan fund or student scholarships,> is exempted from the
   2-23  franchise tax.
   2-24        SECTION 4.  Section 171.082, Tax Code, is amended to read as
   2-25  follows:
    3-1        Sec. 171.082.  EXEMPTION--CERTAIN HOMEOWNER'S ASSOCIATIONS
    3-2        A nonprofit corporation is exempted from the franchise tax
    3-3  if:
    3-4              (1)  the corporation is organized and operated
    3-5  primarily to obtain, manage, construct, and maintain the property
    3-6  in or of a residential condominium or residential real estate
    3-7  development; and
    3-8              (2)  voting control of the corporation is vested in the
    3-9  owners of individual lots, residences, or residential units, and
   3-10  not in the developer or any one individual, partnership,
   3-11  corporation, trust or other entity.
   3-12        SECTION 5.  Section 171.087, Tax Code, is added to read as
   3-13  follows:
   3-14        Sec. 171.087.  EXEMPTION--NONPROFIT CORPORATIONS ORGANIZED
   3-15  SOLELY TO PROVIDE STUDENT LOAN FUND OR STUDENT SCHOLARSHIPS
   3-16        A nonprofit corporation organized solely to provide a student
   3-17  loan fund or student scholarships is exempted from the franchise
   3-18  tax.
   3-19        SECTION 6.  Section 171.1032(a),  Tax Code, is amended to
   3-20  read as follows:
   3-21        (a)  Except for the gross receipts of a corporation that are
   3-22  subject to the provisions of Section 171.1062, in <In> apportioning
   3-23  taxable earned surplus, the gross receipts of a corporation from
   3-24  its business done in this state is the sum of the corporation's
   3-25  receipts from:
    4-1              (1)  each sale of tangible personal property if the
    4-2  property is delivered or shipped to a buyer in this state
    4-3  regardless of the FOB point or another condition of the sale, and
    4-4  each sale of tangible personal property shipped from this state to
    4-5  a purchaser in another state in which the seller is not subject to
    4-6  taxation;
    4-7              (2)  each service performed in this state;
    4-8              (3)  each rental of property situated in this state;
    4-9              (4)  each royalty for the use of a patent or copyright
   4-10  in this state; and
   4-11              (5)  other business done in this state.
   4-12        SECTION 7.  Section 171.1051(a), Tax Code, is amended to read
   4-13  as follows:
   4-14        (a)  Except for the gross receipts of a corporation that are
   4-15  subject to the provisions of Section 171.1062, in <In> apportioning
   4-16  taxable earned surplus, the gross receipts of a corporation from
   4-17  its entire business  is the sum of the corporation's receipts from:
   4-18              (1)  each sale of the corporation's tangible personal
   4-19  property;
   4-20              (2)  each service, rental, or royalty; and
   4-21              (3)  other business.
   4-22        SECTION 8.  Section 171.106(c), Tax Code, is amended to read
   4-23  as follows:
   4-24        (c)  A corporation's taxable capital or earned surplus that
   4-25  is derived, directly or indirectly, from the sale of management,
    5-1  distribution, or administration services to or on behalf of a
    5-2  regulated investment company, including a corporation that includes
    5-3  trustees or sponsors of employee benefit plans that have accounts
    5-4  in a regulated investment company, is apportioned to this state to
    5-5  determine the amount of the tax imposed under Section 171.002 by
    5-6  multiplying the corporation's total taxable capital or earned
    5-7  surplus from the sale of services to or on behalf of a regulated
    5-8  investment company by a fraction, the numerator of which is the
    5-9  average of the sum of shares owned at the beginning of the year and
   5-10  the sum of shares owned at the end of the year by the investment
   5-11  company shareholders who are commercially domiciled in this state
   5-12  or domiciled in this state, if an individual, and the denominator
   5-13  of which is the average of the sum of shares owned at the beginning
   5-14  of the year and the sum of shares owned at the end of the year by
   5-15  all investment company shareholders.
   5-16        SECTION 9.  Section 171.1062, Tax Code, is added to read as
   5-17  follows:
   5-18        Sec. 171.1062.  ALLOCATION OF CERTAIN TAXABLE EARNED SURPLUS
   5-19  TO THIS STATE
   5-20        Any item of income included in a corporation's taxable earned
   5-21  surplus, except that portion derived from dividends and interest,
   5-22  which no state other than this state or country other than this
   5-23  country can tax because the activities generating such item of
   5-24  income do not have sufficient unitary connection with the
   5-25  corporation's other activities conducted within such state or
    6-1  country under the United States Constitution, will be allocated to
    6-2  this state if the corporation's commercial domicile is in this
    6-3  state.  Any income allocated to this state under this section will
    6-4  be net of any related expenses.  Any portion of a corporation's
    6-5  taxable earned surplus allocated to this state under this section
    6-6  will not be apportioned under Section 171.110(a)(2) of this
    6-7  chapter.
    6-8        SECTION 10.  Section 171.109(m), Tax Code, is amended to add
    6-9  Subsection (m) to read as follows:
   6-10        (m)  A corporation may not use the push-down method of
   6-11  accounting in computing or reporting its surplus.
   6-12        SECTION 11.  Section 171.110 Tax Code, is amended by amending
   6-13  Subsection (a) and adding Subsections (h), and (i) to read as
   6-14  follows:
   6-15        (a)  The net taxable earned surplus of a corporation is
   6-16  computed by:
   6-17              (1)  determining the corporation's reportable federal
   6-18  taxable income, subtracting from that amount any amount included in
   6-19  reportable federal taxable income under Section 78 or Sections
   6-20  951-964, Internal Revenue Code, and dividends received from a
   6-21  subsidiary, associate, or affiliated corporation that does not
   6-22  transact a substantial portion of its business or regularly
   6-23  maintain a substantial portion of its assets in the United States,
   6-24  and adding to that amount any compensation of officers or
   6-25  directors, or if a bank, any compensation of directors and
    7-1  executive officers, to the extent excluded in determining federal
    7-2  taxable income to determine the corporation's taxable earned
    7-3  surplus;
    7-4              (2)  apportioning the corporation's taxable earned
    7-5  surplus to this state as provided by Section 171.106(b) or (c), as
    7-6  applicable, to determine the corporation's apportioned taxable
    7-7  earned surplus; <and>
    7-8              (3)  adding the corporation's taxable earned surplus
    7-9  allocated to this state as provided by Section 171.1062; and
   7-10              (4) <(3)>  subtracting from that amount any allowable
   7-11  deductions and any business loss that is carried forward to the tax
   7-12  reporting period and deductible under Subsection (e).
   7-13        (h)  For purposes of this chapter, no deduction shall be
   7-14  allowed for expenses otherwise allowable as deductions if such
   7-15  expenses relate to income exempt or excluded from taxation under
   7-16  this chapter.
   7-17        (i)  Except as provided in subsection (g) of this section,
   7-18  each partner in a partnership shall be considered one shareholder
   7-19  and each beneficiary of a trust shall be considered one
   7-20  shareholder, if the shares are held in the name of a partnership or
   7-21  of a trust.
   7-22        SECTION 12.  Section 171.151, Tax Code, is amended to read as
   7-23  follows:
   7-24        Sec. 171.151.  PRIVILEGE PERIOD COVERED BY TAX.
   7-25        The franchise tax shall be paid for each of the following:
    8-1              (1)  an initial period beginning on the date that the
    8-2  corporation files its charter or is granted a certificate of
    8-3  authority or the date that a foreign corporation begins doing
    8-4  business in this state, whichever is earlier, and ending on the day
    8-5  before the first anniversary of that date;
    8-6              (2)  a second period beginning on the first anniversary
    8-7  of the date that the corporation files its charter or is granted
    8-8  its certificate of authority or the date that a foreign corporation
    8-9  begins doing business in this state, whichever is earlier, and
   8-10  ending on December 31 following that date, unless the date of the
   8-11  first anniversary is December 31, in which event the second period
   8-12  begins and ends on that December 31; and
   8-13              (3)  after the initial and second periods have expired,
   8-14  a regular annual period beginning each year on January 1 and ending
   8-15  the following December 31.
   8-16        SECTION 13.  Section 171.204, Tax Code, is amended to read as
   8-17  follows:
   8-18        Sec. 171.204.  INFORMATION REPORT
   8-19        To determine eligibility for the exemption provided by
   8-20  Section 171.2022, or to determine the amount of the franchise tax
   8-21  or the correctness of a franchise tax report, the comptroller may
   8-22  require <an officer of> a corporation that may be subject to the
   8-23  tax imposed under this chapter to file an information report with
   8-24  the comptroller stating the amount of the corporation's taxable
   8-25  capital and earned surplus, or any other information the
    9-1  comptroller may request.
    9-2        SECTION 14.  Subchapter H, Chapter 171, Tax Code is amended
    9-3  by adding Section 171.364 to read as follows:
    9-4        Sec. 171.364.  TRANSACTIONS ENTERED INTO TO EVADE TAX
    9-5        If the principal purpose of any transaction or series of
    9-6  transactions entered into by a corporation is determined by the
    9-7  comptroller to be entered into to  evade the imposition of the tax
    9-8  under this Title, the comptroller may take the following actions:
    9-9              (a)  In the case of a transaction or a series of
   9-10  transactions between a corporation and one or more businesses
   9-11  (whether or not incorporated, and whether or not affiliated), owned
   9-12  or controlled directly or indirectly by the same interests, the
   9-13  comptroller may distribute, apportion, or allocate gross income,
   9-14  deductions, credits or allowances between or among the corporation
   9-15  and such businesses if it is determined that such allocation is
   9-16  necessary in order to
   9-17                    (1)  prevent evasion of taxes, or
   9-18                    (2)  clearly reflect the income of any of such
   9-19  corporation.
   9-20              (b)  In the case of certain reorganization transactions
   9-21  in which the principal purpose of the transaction or series of
   9-22  transactions is the  evasion of tax, the comptroller may disregard
   9-23  the transaction or take such other action as may be necessary to
   9-24  prevent the evasion of tax.
   9-25        SECTION 15.  This Act takes effect for franchise tax reports
   10-1  originally due on or after January 1, 1994.
   10-2        SECTION 16.  The importance of this legislation and the
   10-3  crowded condition of the calendars in both houses create an
   10-4  emergency and an imperative public necessity that the
   10-5  constitutional rule requiring bills to be read on three several
   10-6  days in each house be suspended, and this rule is hereby suspended.