By: Gutierrez H.B. No. 2413
73R4739 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the exemption under the state sales and use tax for
1-3 tangible personal property exported outside of the United States
1-4 and the persons who may provide documentation to prove the
1-5 exemption; providing penalties.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Subchapter E, Chapter 151, Tax Code, is amended
1-8 by adding Sections 151.157 and 151.158 to read as 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 reasonably includes all costs related to the
2-3 administration of this section, including costs of materials,
2-4 labor, and overhead.
2-5 (d) The amount of the bond or security required by
2-6 Subsection (b)(3) is $10,000, except that the comptroller may
2-7 require a customs broker to post additional bond or security in an
2-8 amount the comptroller considers necessary to ensure the payment of
2-9 the tax under this chapter and local sales and use taxes.
2-10 (e) A customs broker licensed under this section shall make
2-11 available to the comptroller on request the customs broker's books
2-12 and records relating to the business of issuing documentation
2-13 certifying the export of tangible personal property beyond the
2-14 territorial limits of the United States for purposes of exempting
2-15 the property from the taxes imposed by this chapter.
2-16 (f) The comptroller without notice may suspend or revoke a
2-17 license issued under this section for good cause. The comptroller
2-18 shall notify a customs broker whose license is suspended or revoked
2-19 as soon as practicable of the comptroller's action and shall
2-20 provide the customs broker with an opportunity for a hearing on
2-21 whether the customs broker qualifies for a license. The
2-22 comptroller may determine the length of suspension or revocation
2-23 necessary for the enforcement of this chapter and the comptroller's
2-24 rules.
2-25 (g) In this section:
2-26 (1) "Customs broker" means a person licensed by the
2-27 United States Customs Service to act as a customs house broker.
3-1 (2) "Authorized employee" means an employee of a
3-2 customs broker:
3-3 (A) who is authorized by the broker to perform
3-4 customs transactions on behalf of the broker;
3-5 (B) who is compensated by the broker with a
3-6 regular salary or wages;
3-7 (C) who is under the direct control and
3-8 supervision of the broker; and
3-9 (D) from whose salary or wages the broker is
3-10 required to and actually does deduct and withhold a tax under
3-11 federal law.
3-12 Sec. 151.158. EXPORT STAMPS. (a) The comptroller shall
3-13 have printed or manufactured stamps in the design, size, and
3-14 quantity the comptroller determines is necessary for the purpose of
3-15 this section.
3-16 (b) The comptroller may designate the method of
3-17 identification for the stamps.
3-18 (c) The comptroller shall require that the stamps be
3-19 manufactured so that a stamp may be easily and securely attached to
3-20 export documentation.
3-21 (d) The comptroller shall change the design of the stamps at
3-22 least once each calendar quarter, or more frequently if the
3-23 comptroller determines it is necessary for the enforcement of this
3-24 section and the comptroller's rules.
3-25 (e) The comptroller may provide stamps only to a customs
3-26 broker licensed under Section 151.157.
3-27 (f) A stamp is invalid if transferred to a person other than
4-1 the customs broker to whom the comptroller issued the stamp or to
4-2 an authorized employee of that customs broker.
4-3 (g) The comptroller shall charge an amount for the stamps
4-4 that is not excessive and that reasonably includes all costs
4-5 related to producing the stamps, including costs of materials,
4-6 labor, and overhead.
4-7 (h) The comptroller may require stamps to be purchased in
4-8 minimum quantities if the comptroller considers it necessary for
4-9 the efficient administration of this section.
4-10 SECTION 2. Section 151.307, Tax Code, is amended by amending
4-11 Subsection (b) and adding Subsection (c) to read as follows:
4-12 (b) When an exemption is claimed because tangible personal
4-13 property is exported beyond the territorial limits of the United
4-14 States, proof of export may be shown only by:
4-15 (1) a bill of lading issued by a licensed and
4-16 certificated carrier of persons or property showing the seller as
4-17 consignor, the buyer as consignee, and a delivery point outside the
4-18 territorial limits of the United States;
4-19 (2) documentation:
4-20 (A) provided by a <licensed> United States
4-21 Customs Broker licensed by the comptroller under Section 151.157;
4-22 (B) certifying that delivery was made to a point
4-23 outside the territorial limits of the United States; and
4-24 (C) to which a stamp issued under Section
4-25 151.158 is affixed in the manner required by that section or
4-26 Section 151.157;
4-27 (3) import documents from the country of destination
5-1 showing that the property was imported into a country other than
5-2 the United States;
5-3 (4) an original airway, ocean, or railroad bill of
5-4 lading and a forwarder's receipt if an air, ocean, or rail freight
5-5 forwarder takes possession of the property; or
5-6 (5) any other manner provided by the comptroller for
5-7 an enterprise authorized to make tax-free purchases under Section
5-8 151.156.
5-9 (c) In this section:
5-10 (1) "Air forwarder" means a licensed International Air
5-11 Transportation Association freight forwarder.
5-12 (2) "Ocean forwarder" means a licensed Federal
5-13 Maritime Commission freight forwarder.
5-14 SECTION 3. Subchapter L, Chapter 151, Tax Code, is amended
5-15 by adding Sections 151.712 and 151.713 to read as follows:
5-16 Sec. 151.712. CIVIL PENALTY FOR PERSONS CERTIFYING EXPORTS.
5-17 (a) A person may not sign or certify proof of export documentation
5-18 for the purpose of showing an exemption under Section 151.307(b)(2)
5-19 unless:
5-20 (1) the person is:
5-21 (A) a customs broker licensed by the comptroller
5-22 under Section 151.157; or
5-23 (B) an authorized employee of a customs broker
5-24 licensed by the comptroller under Section 151.157; or
5-25 (2) the tangible personal property the export of which
5-26 the person certifies is actually exported at the time and to the
5-27 place shown on the export documentation signed by the person.
6-1 (b) Except as provided by Subsection (d) and after notice as
6-2 provided by this section, a person who violates this section is
6-3 subject to a monetary penalty that may not exceed:
6-4 (1) $500 for the first violation;
6-5 (2) $1,000 for the second violation; and
6-6 (3) $3,000 for each subsequent violation.
6-7 (c) Except as provided by Subsection (d), each violation of
6-8 this section is subject to a separate monetary penalty.
6-9 (d) The aggregate of monetary penalties imposed under this
6-10 section against any person for all violations that occur in a
6-11 calendar year may not exceed $30,000.
6-12 (e) If the comptroller believes that a person has violated
6-13 this section, the comptroller shall give written notice to the
6-14 person to show cause why the person should not be subject to a
6-15 monetary penalty for the violation. The notice must advise the
6-16 person of the allegations and explain that the person has a right
6-17 to respond to the allegations in writing and request an oral
6-18 hearing before the 31st day after the date that the notice is
6-19 issued.
6-20 (f) The comptroller may not impose a monetary penalty under
6-21 this section until the comptroller or a person designated by the
6-22 comptroller:
6-23 (1) considers the allegations against the person;
6-24 (2) considers any timely written response made by the
6-25 person;
6-26 (3) considers any evidence properly admitted at any
6-27 oral hearing held on the allegations; and
7-1 (4) issues a written decision.
7-2 (g) The comptroller must give notice of the comptroller's
7-3 intent to impose a monetary penalty under this section not later
7-4 than four years after the date of the alleged commission of a
7-5 violation of this section or the comptroller may not impose a
7-6 monetary penalty.
7-7 (h) In this section, "customs broker" and "authorized
7-8 employee" have the meanings assigned by Section 151.157.
7-9 Sec. 151.713. FURNISHING FALSE INFORMATION TO CUSTOMS
7-10 BROKER; CIVIL PENALTY. (a) A person may not obtain or attempt to
7-11 obtain export documentation for the purpose of showing an exemption
7-12 under Section 151.307(b)(2) from a customs broker or an authorized
7-13 employee of a customs broker if the person knows, at the time the
7-14 documentation is sought, that the information provided to the
7-15 broker or employee is materially false, in whole or in part, and
7-16 the documentation is sought for the purpose of evading the tax
7-17 imposed by this chapter.
7-18 (b) After notice as provided by this section, a person who
7-19 violates this section is subject to a monetary penalty that may not
7-20 exceed:
7-21 (1) $500 for the first violation;
7-22 (2) $1,000 for the second violation; and
7-23 (3) $3,000 for each subsequent violation.
7-24 (c) Each violation of this section is subject to a separate
7-25 monetary penalty.
7-26 (d) If the comptroller believes that a person has violated
7-27 this section, the comptroller shall give written notice to the
8-1 person to show cause why the person should not be subject to a
8-2 monetary penalty for the violation. The notice must advise the
8-3 person of the allegations and explain that the person has a right
8-4 to respond to the allegations in writing and request an oral
8-5 hearing before the 31st day after the date that the notice is
8-6 issued.
8-7 (e) The comptroller may not impose a monetary penalty under
8-8 this section until the comptroller or a person designated by the
8-9 comptroller:
8-10 (1) considers the allegations against the person;
8-11 (2) considers any timely written response made by the
8-12 person;
8-13 (3) considers any evidence properly admitted at any
8-14 oral hearing held on the allegations; and
8-15 (4) issues a written decision.
8-16 (f) The comptroller must give notice of the comptroller's
8-17 intent to impose a monetary penalty under this section not later
8-18 than four years after the date of the alleged commission of a
8-19 violation of this section or the comptroller may not impose a
8-20 monetary penalty.
8-21 (g) The penalty imposed by this section is in addition to
8-22 any tax, penalty, and interest that may be assessed against a
8-23 person who violates this section.
8-24 (h) In this section, "customs broker" and "authorized
8-25 employee" have the meanings assigned by Section 151.157.
8-26 SECTION 4. This Act applies only to an exemption to the tax
8-27 imposed under Chapter 151, Tax Code, claimed on or after the
9-1 effective date of this Act.
9-2 SECTION 5. The importance of this legislation and the
9-3 crowded condition of the calendars in both houses create an
9-4 emergency and an imperative public necessity that the
9-5 constitutional rule requiring bills to be read on three several
9-6 days in each house be suspended, and this rule is hereby suspended,
9-7 and that this Act take effect and be in force from and after its
9-8 passage, and it is so enacted.