73R8668 DAK-D
By Gutierrez H.B. No. 2413
Substitute the following for H.B. No. 2413:
By Craddick C.S.H.B. No. 2413
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to tangible personal property exported outside of the
1-3 United States and the persons who may provide documentation to
1-4 prove the tax exemption for the property; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subchapter E, Chapter 151, Tax Code, is amended
1-7 by adding Sections 151.157, 151.158, and 151.159 to read as
1-8 follows:
1-9 Sec. 151.157. CUSTOMS BROKERS. (a) A customs broker, or an
1-10 authorized employee of a customs broker, licensed by the
1-11 comptroller under this section may issue documentation for the
1-12 purpose of showing the exemption of tangible personal property
1-13 under Section 151.307(b)(2) only under procedures established by
1-14 the comptroller by rule.
1-15 (b) The comptroller may issue a license to a customs broker
1-16 for the purpose described by Subsection (a) for each place of
1-17 business of the broker if the broker:
1-18 (1) applies to the comptroller for the license;
1-19 (2) pays the fee set by the comptroller;
1-20 (3) posts the bond or security in the amount required
1-21 by Subsection (d); and
1-22 (4) complies with any rules of the comptroller to
1-23 administer this section and to prevent the evasion of the tax under
1-24 this chapter and local sales and use taxes.
2-1 (c) The comptroller shall set the fee for a license in an
2-2 amount that does not exceed $100 for each customs broker, without
2-3 regard to whether the broker has more than one place of business.
2-4 The fee may be imposed only once for each broker. The comptroller
2-5 shall use the fees only for the administration of this section,
2-6 including costs of materials, labor, and overhead.
2-7 (d) The amount of the bond or security required by
2-8 Subsection (b)(3) is $500, except that the comptroller may require
2-9 a customs broker to post additional bond or security in an amount
2-10 the comptroller considers necessary to ensure the payment of the
2-11 tax under this chapter and local sales and use taxes. The
2-12 comptroller may not require a bond or security in an amount greater
2-13 than $2,500. The comptroller may not require the customs broker to
2-14 post more than one bond or security solely because the broker has
2-15 more than one place of business. The security may be in the form
2-16 of cash, a certificate of deposit, a letter of credit, or another
2-17 instrument of value.
2-18 (e) A customs broker licensed under this section shall make
2-19 available to the comptroller, on or after the 15th day after the
2-20 date the broker receives written notice from the comptroller, the
2-21 customs broker's books and records relating to the business of
2-22 issuing documentation certifying the export of tangible personal
2-23 property beyond the territorial limits of the United States for
2-24 purposes of exempting the property from the taxes imposed by this
2-25 chapter.
2-26 (f) The comptroller may suspend or revoke a license issued
2-27 under this section for good cause. The comptroller may determine
3-1 the length of suspension or revocation necessary for the
3-2 enforcement of this chapter and the comptroller's rules. A
3-3 proceeding to suspend or revoke a license under this subsection is
3-4 a contested case under the Administrative Procedure and Texas
3-5 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
3-6 Judicial review is by trial de novo. Venue is in the county in
3-7 which some or all of the actions of the customs broker alleged to
3-8 be grounds for good cause for suspension or revocation under this
3-9 subsection occurred. A county court or a statutory county court
3-10 does not have jurisdiction of an appeal under this subsection.
3-11 (g) A customs broker may authorize a person to act as an
3-12 independent contractor to certify that tangible personal property
3-13 has been exported outside of the United States only if the
3-14 authorization is part of the written contract and the comptroller
3-15 in writing approves the authorization. A customs broker may not
3-16 authorize a person under this subsection to prepare documentation
3-17 for the purpose of showing the exemption for tangible personal
3-18 property under Section 151.307(b)(2).
3-19 (h) In this section:
3-20 (1) "Customs broker" means a person licensed by the
3-21 United States Customs Service to act as a customs house broker.
3-22 (2) "Authorized employee" means an employee of a
3-23 customs broker:
3-24 (A) who is authorized by the broker to perform
3-25 customs transactions on behalf of the broker;
3-26 (B) who is compensated by the broker with a
3-27 regular salary or wages;
4-1 (C) who is under the direct control and
4-2 supervision of the broker; and
4-3 (D) from whose salary or wages the broker is
4-4 required to and actually does deduct and withhold a tax under
4-5 federal law.
4-6 Sec. 151.158. EXPORT STAMPS. (a) The comptroller shall
4-7 have printed or manufactured stamps in the design, size, and
4-8 quantity the comptroller determines is necessary for the purpose of
4-9 this section.
4-10 (b) The comptroller may designate the method of
4-11 identification for the stamps.
4-12 (c) The comptroller shall require that the stamps be
4-13 manufactured so that a stamp may be easily and securely attached to
4-14 export documentation.
4-15 (d) The comptroller shall change the design of the stamps at
4-16 least once each calendar quarter, or more frequently if the
4-17 comptroller determines it is necessary for the enforcement of this
4-18 section and the comptroller's rules.
4-19 (e) The comptroller may provide stamps only to a customs
4-20 broker licensed under Section 151.157.
4-21 (f) A stamp is invalid if transferred to a person other than
4-22 the customs broker to whom the comptroller issued the stamp, to an
4-23 authorized employee of that customs broker, or to an authorized
4-24 independent contractor.
4-25 (g) The comptroller shall charge an amount not to exceed
4-26 five cents for each stamp. The comptroller shall use the money
4-27 from the sale of the stamps only for costs related to producing the
5-1 stamps, including costs of materials, labor, and overhead.
5-2 (h) The comptroller may require stamps to be purchased in
5-3 minimum quantities if the comptroller considers it necessary for
5-4 the efficient administration of this section.
5-5 Sec. 151.159. REFUNDS; IDENTIFICATION CARDS. (a) The
5-6 comptroller in writing may authorize a customs broker to refund
5-7 taxes collected under this chapter at export locations specified by
5-8 the comptroller.
5-9 (b) The comptroller may issue an export identification card
5-10 to a wholesaler or retailer. The card must contain the picture of
5-11 the person to whom the card is issued. The comptroller may issue
5-12 the card only if the wholesaler or retailer shows by clear and
5-13 convincing evidence that the wholesaler or retailer is a citizen
5-14 and resident of a foreign country and that any tangible personal
5-15 property purchased in this state by the wholesaler or retailer is
5-16 for export purposes only and is to be used or consumed outside the
5-17 territorial limits of the United States. A wholesaler or retailer
5-18 issued an export identification card may use the card only to
5-19 facilitate the preparation of documentation by a customs broker
5-20 under Section 151.307(b). The comptroller may require a wholesaler
5-21 or retailer applying for an export identification card to submit
5-22 any information in any form the comptroller determines is necessary
5-23 and to pay a fee in an amount the comptroller determines is
5-24 necessary to pay for the cost of issuing the card.
5-25 SECTION 2. Section 151.307, Tax Code, is amended by amending
5-26 Subsection (b) and adding Subsections (c) and (d) to read as
5-27 follows:
6-1 (b) When an exemption is claimed because tangible personal
6-2 property is exported beyond the territorial limits of the United
6-3 States, proof of export may be shown only by:
6-4 (1) a bill of lading issued by a licensed and
6-5 certificated carrier of persons or property showing the seller as
6-6 consignor, the buyer as consignee, and a delivery point outside the
6-7 territorial limits of the United States;
6-8 (2) documentation:
6-9 (A) provided by a <licensed> United States
6-10 Customs Broker licensed by the comptroller under Section 151.157;
6-11 (B) certifying that delivery was made to a point
6-12 outside the territorial limits of the United States; and
6-13 (C) to which a stamp issued under Section
6-14 151.158 is affixed in the manner required by that section or
6-15 Section 151.157;
6-16 (3) import documents from the country of destination
6-17 showing that the property was imported into a country other than
6-18 the United States;
6-19 (4) an original airway, ocean, or railroad bill of
6-20 lading and a forwarder's receipt if an air, ocean, or rail freight
6-21 forwarder takes possession of the property; or
6-22 (5) any other manner provided by the comptroller for
6-23 an enterprise authorized to make tax-free purchases under Section
6-24 151.156.
6-25 (c) Documentation, including the stamp affixed to the
6-26 documentation, that is provided by a customs broker licensed by the
6-27 comptroller under Section 151.157 is presumed valid in the absence
7-1 of clear and convincing evidence that the tangible personal
7-2 property covered by the documentation was not exported outside the
7-3 territorial limits of the United States.
7-4 (d) In this section:
7-5 (1) "Air forwarder" means a licensed International Air
7-6 Transportation Association freight forwarder.
7-7 (2) "Ocean forwarder" means a licensed Federal
7-8 Maritime Commission freight forwarder.
7-9 SECTION 3. Chapter 151, Tax Code, is amended by adding
7-10 Section 151.3071 to read as follows:
7-11 Sec. 151.3071. INSTALLATION OF CERTAIN EQUIPMENT FOR EXPORT.
7-12 Electronic audio equipment that is exempted from the taxes imposed
7-13 by this chapter because it is purchased for use beyond the
7-14 territorial limits of the United States does not become subject to
7-15 the taxes imposed by this chapter solely because the equipment is
7-16 installed in this state.
7-17 SECTION 4. Subchapter L, Chapter 151, Tax Code, is amended
7-18 by adding Sections 151.712 and 151.713 to read as follows:
7-19 Sec. 151.712. CIVIL PENALTY FOR PERSONS CERTIFYING EXPORTS.
7-20 (a) A person may not sign or certify proof of export documentation
7-21 for the purpose of showing an exemption under Section 151.307(b)(2)
7-22 unless:
7-23 (1) the person is:
7-24 (A) a customs broker licensed by the comptroller
7-25 under Section 151.157; or
7-26 (B) an authorized employee of a customs broker
7-27 licensed by the comptroller under Section 151.157; and
8-1 (2) the tangible personal property the export of which
8-2 the person certifies is exported on the date and to the place shown
8-3 on the export documentation signed by the person.
8-4 (b) A person who provides proof or documentation that
8-5 tangible personal property has been exported outside of the United
8-6 States or a person who may benefit from the provision of the proof
8-7 or documentation, including a customs broker, authorized employee,
8-8 authorized independent contractor, seller of the property or agent
8-9 or employee of the seller, or a consumer of the property or agent
8-10 or employee of the consumer, may not sell or buy the proof or
8-11 documentation, including stamps required for the documentation.
8-12 This subsection does not apply to a customs broker who accepts a
8-13 fee for providing documentation under Section 151.307(b).
8-14 (c) Except as provided by Subsection (e), a person who
8-15 violates this section is subject to a monetary penalty that may not
8-16 exceed:
8-17 (1) $500 for the first violation;
8-18 (2) $1,000 for the second violation; and
8-19 (3) $3,000 for each subsequent violation.
8-20 (d) Except as provided by Subsection (e), each violation of
8-21 this section is subject to a separate monetary penalty.
8-22 (e) The aggregate of monetary penalties imposed under this
8-23 section against any person for all violations that occur in a
8-24 calendar year may not exceed $30,000.
8-25 (f) In addition to any monetary penalty under this section,
8-26 the comptroller may suspend or revoke under Section 151.157 the
8-27 license of a customs broker who violates this section.
9-1 (g) A proceeding to impose a civil penalty or suspend or
9-2 revoke a license because of a violation of this section is a
9-3 contested case under the Administrative Procedure and Texas
9-4 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
9-5 Judicial review is by trial de novo. Venue is in the county in
9-6 which all or part of the alleged violation of this section
9-7 occurred. A county court or a statutory county court does not
9-8 have jurisdiction of an appeal under this subsection.
9-9 (h) The comptroller must give notice of the comptroller's
9-10 intent to impose a monetary or other penalty under this section not
9-11 later than four years after the date of the alleged commission of a
9-12 violation of this section or the comptroller may not impose a
9-13 monetary or other penalty.
9-14 (i) In this section, "customs broker" and "authorized
9-15 employee" have the meanings assigned by Section 151.157.
9-16 Sec. 151.713. FURNISHING FALSE INFORMATION TO CUSTOMS
9-17 BROKER; CIVIL PENALTY. (a) A person may not obtain or attempt to
9-18 obtain export documentation for the purpose of showing an exemption
9-19 under Section 151.307(b)(2) from a customs broker or an authorized
9-20 employee of a customs broker if the person knows, at the time the
9-21 documentation is sought, that the information provided to the
9-22 broker or employee is materially false, in whole or in part, and
9-23 the documentation is sought for the purpose of evading the tax
9-24 imposed by this chapter.
9-25 (b) After notice as provided by this section, a person who
9-26 violates this section is subject to a monetary penalty that may not
9-27 exceed:
10-1 (1) $500 for the first violation;
10-2 (2) $1,000 for the second violation; and
10-3 (3) $3,000 for each subsequent violation.
10-4 (c) Each violation of this section is subject to a separate
10-5 monetary penalty.
10-6 (d) If the comptroller believes that a person has violated
10-7 this section, the comptroller shall give written notice to the
10-8 person to show cause why the person should not be subject to a
10-9 monetary penalty for the violation. The notice must advise the
10-10 person of the allegations and explain that the person has a right
10-11 to respond to the allegations in writing and request an oral
10-12 hearing before the 31st day after the date that the notice is
10-13 issued.
10-14 (e) The comptroller may not impose a monetary penalty under
10-15 this section until the comptroller or a person designated by the
10-16 comptroller:
10-17 (1) considers the allegations against the person;
10-18 (2) considers any timely written response made by the
10-19 person;
10-20 (3) considers any evidence properly admitted at any
10-21 oral hearing held on the allegations; and
10-22 (4) issues a written decision.
10-23 (f) The comptroller must give notice of the comptroller's
10-24 intent to impose a monetary penalty under this section not later
10-25 than four years after the date of the alleged commission of a
10-26 violation of this section or the comptroller may not impose a
10-27 monetary penalty.
11-1 (g) The penalty imposed by this section is in addition to
11-2 any tax, penalty, and interest that may be assessed against a
11-3 person who violates this section.
11-4 (h) In this section, "customs broker" and "authorized
11-5 employee" have the meanings assigned by Section 151.157.
11-6 SECTION 5. This Act applies only to an exemption to the tax
11-7 imposed under Chapter 151, Tax Code, claimed on or after the
11-8 effective date of this Act.
11-9 SECTION 6. The importance of this legislation and the
11-10 crowded condition of the calendars in both houses create an
11-11 emergency and an imperative public necessity that the
11-12 constitutional rule requiring bills to be read on three several
11-13 days in each house be suspended, and this rule is hereby suspended,
11-14 and that this Act take effect and be in force from and after its
11-15 passage, and it is so enacted.