By Oliveira                                           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 171.061, Tax Code, is amended to read as
   2-10  follows:
   2-11        Sec. 171.061.  EXEMPTION--NONPROFIT CORPORATION ORGANIZED FOR
   2-12  EDUCATIONAL PURPOSES
   2-13        A nonprofit corporation organized solely for educational
   2-14  purposes, <including a corporation organized solely to provide a
   2-15  student loan fund or student scholarships,> is exempted from the
   2-16  franchise tax.
   2-17        SECTION 3.  Section 171.082, Tax Code, is amended to read as
   2-18  follows:
   2-19        Sec. 171.082.  EXEMPTION--CERTAIN HOMEOWNER'S ASSOCIATIONS
   2-20        A nonprofit corporation is exempted from the franchise tax
   2-21  if:
   2-22              (1)  the corporation is organized and operated
   2-23  primarily to obtain, manage, construct, and maintain the property
   2-24  in or of a residential condominium or residential real estate
   2-25  development; and
    3-1              (2)  voting control of the corporation is vested in the
    3-2  owners of individual lots, residences, or residential units, and
    3-3  not in the developer or any one individual, partnership,
    3-4  corporation, trust or other entity.
    3-5        SECTION 4.  Section 171.087, Tax Code, is added to read as
    3-6  follows:
    3-7        Sec. 171.087.  EXEMPTION--NONPROFIT CORPORATIONS ORGANIZED
    3-8  SOLELY TO PROVIDE STUDENT LOAN FUND OR STUDENT SCHOLARSHIPS
    3-9        A nonprofit corporation organized solely to provide a student
   3-10  loan fund or student scholarships is exempted from the franchise
   3-11  tax.
   3-12        SECTION 5.  Section 171.101(a) and (d).  Tax Code, are
   3-13  amended to read as follows:
   3-14        (a)  Except as provided by Subsections (b) and (c), the net
   3-15  taxable capital of a corporation is computed by:
   3-16              (1)  adding the corporation's stated capital as defined
   3-17  by Article 1.02, Texas Business Corporation Act, and the
   3-18  corporation's surplus, to determine the corporation's taxable
   3-19  capital;
   3-20              (2)  apportioning the corporation's taxable capital to
   3-21  this state as provided by Section 171.106(a) or (c), as applicable,
   3-22  to determine the corporation's apportioned taxable capital; <and>
   3-23              (3)  adding the corporation's taxable capital allocated
   3-24  to this state as provided in Section 171.1061; and
   3-25              (4) <(3)>  subtracting from the amount computed under
    4-1  Subdivision (2) any other allowable deductions to determine the
    4-2  corporation's net taxable capital.
    4-3        (d)  For purposes of this chapter, no deduction shall be
    4-4  allowed for expenses otherwise allowable as deductions is such
    4-5  expenses relate to income exempt or excluded from taxation under
    4-6  this chapter.
    4-7        SECTION 6.  Section 171.103, Tax Code, is amended to read as
    4-8  follows:
    4-9        Except for the gross receipts of a corporation that are
   4-10  subject to the provisions of Section 171.1061, in <In> apportioning
   4-11  taxable capital, the gross receipts of a corporation from its
   4-12  business done in this state is the sum of the corporation's
   4-13  receipts from:
   4-14              (1)  each sale of tangible personal property if the
   4-15  property is delivered or shipped to a buyer in this state
   4-16  regardless of the FOB point or another condition of the sale, and
   4-17  each sale of tangible personal property shipped from this state to
   4-18  a purchaser in another state in which the seller is not subject to
   4-19  taxation;
   4-20              (2)  each service performed in this state;
   4-21              (3)  each rental of property situated in this state;
   4-22              (4)  each royalty for the use of a patent or copyright
   4-23  in this state; and
   4-24              (5)  other business done in this state.
   4-25        SECTION 7.  Section 171.1032(a),  Tax Code, is amended to
    5-1  read as follows:
    5-2        (a)  Except for the gross receipts of a corporation that are
    5-3  subject to the provisions of Section 171.1062, in <In> apportioning
    5-4  taxable earned  surplus, the gross receipts of a corporation from
    5-5  its business done in this state is the sum of the corporation's
    5-6  receipts from:
    5-7              (1)  each sale of tangible personal property if the
    5-8  property is delivered or shipped to a buyer in this state
    5-9  regardless of the FOB point or another condition of the sale, and
   5-10  each sale of tangible personal property shipped from this state to
   5-11  a purchaser in another state in which the seller is not subject to
   5-12  taxation;
   5-13              (2)  each service performed in this state;
   5-14              (3)  each rental of property situated in this state;
   5-15              (4)  each royalty for the use of a patent or copyright
   5-16  in this state; and
   5-17              (5)  other business done in this state.
   5-18        SECTION 8.  Section 171.105(a), Tax Code, is amended to read
   5-19  as follows:
   5-20        (a)  Except for the gross receipts of a corporation that are
   5-21  subject to the provisions of Section 171.1061, in <In> apportioning
   5-22  taxable capital, the gross receipts of a corporation from its
   5-23  entire business is the sum of the corporation's receipts from:
   5-24              (1)  each sale of the corporation's tangible personal
   5-25  property;
    6-1              (2)  each service, rental, or royalty; and
    6-2              (3)  other business.
    6-3        SECTION 9.  Section 171.1051(a), Tax Code, is amended to read
    6-4  as follows:
    6-5        (a)  Except for the gross receipts of a corporation that are
    6-6  subject to the provisions of Section 171.1062, in <In> apportioning
    6-7  taxable earned surplus, the gross receipts of a corporation from
    6-8  its entire business  is the sum of the corporation's receipts from:
    6-9              (1)  each sale of the corporation's tangible personal
   6-10  property;
   6-11              (2)  each service, rental, or royalty; and
   6-12              (3)  other business.
   6-13        SECTION 10.  Section 171.106(c), Tax Code, is amended to read
   6-14  as follows:
   6-15        (c)  A corporation's taxable capital or earned surplus that
   6-16  is derived, directly or indirectly, from the sale of management,
   6-17  distribution, or administration services to or on behalf of a
   6-18  regulated investment company, including a corporation that includes
   6-19  trustees or sponsors of employee benefit plans that have accounts
   6-20  in a regulated investment company, is apportioned to this state to
   6-21  determine the amount of the tax imposed under Section 171.002 by
   6-22  multiplying the corporation's total taxable capital or earned
   6-23  surplus from the sale of services to or on behalf of a regulated
   6-24  investment company by a fraction, the numerator of which is the
   6-25  average of the sum of shares owned at the beginning of the year and
    7-1  the sum of shares owned at the end of the year by the investment
    7-2  company shareholders who are commercially domiciled in this state
    7-3  or domiciled in this state, if an individual, and the denominator
    7-4  of which is the average of the sum of shares owned at the beginning
    7-5  of the year and the sum of shares owned at the end of the year by
    7-6  all investment company shareholders.
    7-7        SECTION 11.  Section 171.1061, Tax Code, is added to read as
    7-8  follows:
    7-9        Sec. 171.1061.  ALLOCATION OF CERTAIN TAXABLE CAPITAL TO THIS
   7-10  STATE
   7-11        Any portion of a corporation's taxable capital not subject to
   7-12  tax by a state or country other than this state because it does not
   7-13  have sufficient unitary connection with such other state or country
   7-14  in accordance with federal law, will be allocated to and taxed by
   7-15  this state if the corporation's commercial domicile is in this
   7-16  state.
   7-17        SECTION 12.  Section 171.1062, Tax Code, is added to read as
   7-18  follows:
   7-19        Sec. 171.1062.  ALLOCATION OF CERTAIN TAXABLE EARNED SURPLUS
   7-20  TO THIS STATE
   7-21        Any portion of a corporation's taxable earned surplus not
   7-22  subject to tax by a state or country other than this state because
   7-23  it does not have sufficient unitary connection with such other
   7-24  state or country in accordance with federal law, will be allocated
   7-25  to and taxed by this state if the corporation's commercial domicile
    8-1  is in this state.
    8-2        SECTION 13.  Section 171.109(m), Tax Code, is amended to add
    8-3  Subsection (m) to read as follows:
    8-4        (m)  A corporation may not use the push-down method of
    8-5  accounting in computing or reporting its surplus.
    8-6        SECTION 14.  Section 171.110 Tax Code, is amended by amending
    8-7  Subsection (a) and adding Subsections (h), and (i) to read as
    8-8  follows:
    8-9        (a)  The net taxable earned surplus of a corporation is
   8-10  computed by:
   8-11              (1)  determining the corporation's reportable federal
   8-12  taxable income, subtracting from that amount any amount included in
   8-13  reportable federal taxable income under Section 78 or Sections
   8-14  951-964, Internal Revenue Code, and dividends received from a
   8-15  subsidiary, associate, or affiliated corporation that does not
   8-16  transact a substantial portion of its business or regularly
   8-17  maintain a substantial portion of its assets in the United States,
   8-18  and adding to that amount any compensation of officers or
   8-19  directors, or if a bank, any compensation of directors and
   8-20  executive officers, to the extent excluded in determining federal
   8-21  taxable income to determine the corporation's taxable earned
   8-22  surplus;
   8-23              (2)  apportioning the corporation's taxable earned
   8-24  surplus to this state as provided by Section 171.106(b) or (c), as
   8-25  applicable, to determine the corporation's apportioned taxable
    9-1  earned surplus; <and>
    9-2              (3)  adding the corporation's taxable earned surplus
    9-3  allocated to this state as provided in Section 171.1062; and
    9-4              (4) <(3)>  subtracting from that amount any allowable
    9-5  deductions and any business loss that is carried forward to the tax
    9-6  reporting period and deductible under Subsection (e).
    9-7        (h)  For purposes of this chapter, no deduction shall be
    9-8  allowed for expenses otherwise allowable as deductions if such
    9-9  expenses relate to income exempt or excluded from taxation under
   9-10  this chapter.
   9-11        (i)  Except as provided in subsection (g) of this section,
   9-12  each partner in a partnership shall be considered one shareholder
   9-13  and each beneficiary of a trust shall be considered one
   9-14  shareholder, if the shares are held in the name of a partnership or
   9-15  of a trust.
   9-16        SECTION 15.  Section 171.151, Tax Code, is amended to read as
   9-17  follows:
   9-18        Sec. 171.151.  PRIVILEGE PERIOD COVERED BY TAX.
   9-19        The franchise tax shall be paid for each of the following:
   9-20              (1)   an initial period beginning on the date that the
   9-21  corporation files its charter or is granted a certificate of
   9-22  authority or the date that a foreign corporation begins doing
   9-23  business in this state, whichever is earlier, and ending on the day
   9-24  before the first anniversary of that date;
   9-25              (2)  a second period beginning on the first anniversary
   10-1  of the date that the corporation files its charter or is granted
   10-2  its certificate of authority or the date that a foreign corporation
   10-3  begins doing business in this state, whichever is earlier, and
   10-4  ending on December 31 following that date, unless the date of the
   10-5  first anniversary is December 31, in which event the second period
   10-6  begins and ends on that December 31; and
   10-7              (3)  after the initial and second periods have expired,
   10-8  a regular annual period beginning each year on January 1 and ending
   10-9  the following December 31.
  10-10        SECTION 16.  Section 171.204, Tax Code, is amended to read as
  10-11  follows:
  10-12        Sec. 171.204.  INFORMATION REPORT
  10-13        To determine eligibility for the exemption provided by
  10-14  Section 171.2022, or to determine the amount of the franchise tax
  10-15  or the correctness of a franchise tax report, the comptroller may
  10-16  require <an officer of> a corporation that may be subject to the
  10-17  tax imposed under this chapter to file an information report with
  10-18  the comptroller stating the amount of the corporation's taxable
  10-19  capital and earned surplus, or any other information the
  10-20  comptroller may request.
  10-21        SECTION 17.  Subchapter H, Chapter 171, Tax Code is amended
  10-22  by adding Section 171.364 to read as follows:
  10-23        Sec. 171.364.  TRANSACTIONS ENTERED INTO TO AVOID OR EVADE
  10-24  TAX
  10-25        If the principal purpose of any transaction or series of
   11-1  transactions entered into by a corporation is determined by the
   11-2  comptroller to be entered into to avoid or evade the imposition of
   11-3  the tax under this Title, the comptroller may take the following
   11-4  actions:
   11-5        (a)  In the case of a transaction or a series of transactions
   11-6  between a corporation and one or more businesses (whether or not
   11-7  incorporated, and whether or not affiliated), owned or controlled
   11-8  directly or indirectly by the same interests, the comptroller may
   11-9  distribute, apportion, or allocate gross income, deductions,
  11-10  credits or allowances between or among the corporation and such
  11-11  businesses if it is determined that such allocation is necessary in
  11-12  order to
  11-13              (1)  prevent evasion of taxes, or
  11-14              (2)  clearly reflect the income of any of such
  11-15  corporation.
  11-16        (b)  In the case of certain reorganization transactions in
  11-17  which the principal purpose of the transaction or series of
  11-18  transactions is the avoidance or evasion of tax, the comptroller
  11-19  may disregard the transaction or take such other action as may be
  11-20  necessary to prevent the avoidance or evasion of tax.
  11-21        SECTION 18.  This Act takes effect for franchise tax reports
  11-22  originally due on or after January 1, 1994.
  11-23        SECTION 19.  The importance of this legislation and the
  11-24  crowded condition of the calendars in both houses create an
  11-25  emergency and an imperative public necessity that the
   12-1  constitutional rule requiring bills to be read on three several
   12-2  days in each house be suspended, and this rule is hereby suspended.