1-1  By:  Gutierrez (Senate Sponsor - Truan)               H.B. No. 2413
    1-2        (In the Senate - Received from the House May 10, 1993;
    1-3  May 12, 1993, read first time and referred to Committee on
    1-4  International Relations, Trade, and Technology; May 19, 1993,
    1-5  reported favorably, as amended, by the following vote:  Yeas 6,
    1-6  Nays 0; May 19, 1993, sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Truan              x                               
   1-10        Barrientos                                    x    
   1-11        Bivins             x                               
   1-12        Brown                                         x    
   1-13        Carriker           x                               
   1-14        Harris of Tarrant  x                               
   1-15        Lucio                                         x    
   1-16        Rosson             x                               
   1-17        Wentworth          x                               
   1-18  COMMITTEE AMENDMENT NO. 1                                By:  Truan
   1-19  Amend HB 2413 as follows:
   1-20        On page 1, Line 37, strike the word "and" and between
   1-21  "151.159" and "to" insert  ", and 151.160".
   1-22        On page 3, between lines 33 and 39 add the following:
   1-23        Sec. 151.160.  DEPOSITS.  Penalties collected by the
   1-24  comptroller shall be deposited into general revenue.  Fees and
   1-25  charges collected by the comptroller under this Act shall be
   1-26  considered reimbursements for expenses of administration and shall
   1-27  be available for use by the comptroller in accordance with
   1-28  provisions in the General Appropriations Act appropriating such
   1-29  revenues for use by agencies.
   1-30                         A BILL TO BE ENTITLED
   1-31                                AN ACT
   1-32  relating to tangible personal property exported outside of the
   1-33  United States and the persons who may provide documentation to
   1-34  prove the tax exemption for the property; providing penalties.
   1-35        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-36        SECTION 1.  Subchapter E, Chapter 151, Tax Code, is amended
   1-37  by adding Sections 151.157, 151.158, and 151.159 to read as
   1-38  follows:
   1-39        Sec. 151.157.  CUSTOMS BROKERS.  (a)  A customs broker, or an
   1-40  authorized employee of a customs broker, licensed by the
   1-41  comptroller under this section may issue documentation for the
   1-42  purpose of showing the exemption of tangible personal property
   1-43  under Section 151.307(b)(2) only under procedures established by
   1-44  the comptroller by rule.
   1-45        (b)  The comptroller may issue a license to a customs broker
   1-46  for the purpose described by Subsection (a) for each place of
   1-47  business of the broker if the broker:
   1-48              (1)  applies to the comptroller for the license;
   1-49              (2)  pays the fee set by the comptroller;
   1-50              (3)  posts the bond or security in the amount required
   1-51  by Subsection (d); and
   1-52              (4)  complies with any rules of the comptroller to
   1-53  administer this section and to prevent the evasion of the tax under
   1-54  this chapter and local sales and use taxes.
   1-55        (c)  The comptroller shall set the fee for a license in an
   1-56  amount that does not exceed $100 for each customs broker, without
   1-57  regard to whether the broker has more than one place of business.
   1-58  The fee may be imposed only once for each broker.  The comptroller
   1-59  shall use the fees only for the administration of this section,
   1-60  including costs of materials, labor, and overhead.
   1-61        (d)  The amount of the bond or security required by
   1-62  Subsection (b)(3) is $500, except that the comptroller may require
   1-63  a customs broker to post additional bond or security in an amount
   1-64  the comptroller considers necessary to ensure the payment of the
   1-65  tax under this chapter and local sales and use taxes.  The
   1-66  comptroller may not require a bond or security in an amount greater
   1-67  than $2,500.  The comptroller may not require the customs broker to
   1-68  post more than one bond or security solely because the broker has
    2-1  more than one place of business.  The security may be in the form
    2-2  of cash, a certificate of deposit, a letter of credit, or another
    2-3  instrument of value.
    2-4        (e)  A customs broker licensed under this section shall make
    2-5  available to the comptroller, on or after the 15th day after the
    2-6  date the broker receives written notice from the comptroller, the
    2-7  customs broker's books and records relating to the business of
    2-8  issuing documentation certifying the export of tangible personal
    2-9  property beyond the territorial limits of the United States for
   2-10  purposes of exempting the property from the taxes imposed by this
   2-11  chapter.  The customs broker shall make available to the
   2-12  comptroller, without notice from the comptroller, the customs
   2-13  broker's book and records if the comptroller determines that the
   2-14  comptroller's ability to administer and enforce effectively the
   2-15  provisions of this chapter relating to documentation for the
   2-16  purpose of showing the exemption of tangible personal property
   2-17  under Section 151.307(b)(2) is jeopardized by providing notice.
   2-18  The customs broker shall keep the books and records described by
   2-19  this subsection for at least two years after the date of the last
   2-20  entry that they contain.
   2-21        (f)  The comptroller may suspend or revoke a license issued
   2-22  under this section for good cause.  The comptroller may determine
   2-23  the length of suspension or revocation necessary for the
   2-24  enforcement of this chapter and the comptroller's rules.  A
   2-25  proceeding to suspend or revoke a license under this subsection is
   2-26  a contested case under the Administrative Procedure and Texas
   2-27  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
   2-28  Judicial review is by trial de novo.  The district courts of Travis
   2-29  County have exclusive original jurisdiction of a suit under this
   2-30  section.
   2-31        (g)  A customs broker may authorize a person to act as an
   2-32  independent contractor to certify that tangible personal property
   2-33  has been exported outside of the United States only if the
   2-34  authorization is part of the written contract and the comptroller
   2-35  in writing approves the authorization.  A customs broker may not
   2-36  authorize a person under this subsection to prepare documentation
   2-37  for the purpose of showing the exemption for tangible personal
   2-38  property under Section 151.307(b)(2).
   2-39        (h)  In this section:
   2-40              (1)  "Customs broker" means a person licensed by the
   2-41  United States Customs Service to act as a customs house broker.
   2-42              (2)  "Authorized employee" means an employee of a
   2-43  customs broker:
   2-44                    (A)  who is authorized by the broker to perform
   2-45  customs transactions on behalf of the broker;
   2-46                    (B)  who is compensated by the broker with a
   2-47  regular salary or wages;
   2-48                    (C)  who is under the direct control and
   2-49  supervision of the broker; and
   2-50                    (D)  from whose salary or wages the broker is
   2-51  required to and actually does deduct and withhold a tax under
   2-52  federal law.
   2-53        Sec. 151.158.  EXPORT STAMPS.  (a)  The comptroller shall
   2-54  have printed or manufactured stamps in the design, size, and
   2-55  quantity the comptroller determines is necessary for the purpose of
   2-56  this section.
   2-57        (b)  The comptroller may designate the method of
   2-58  identification for the stamps.
   2-59        (c)  The comptroller shall require that the stamps be
   2-60  manufactured so that a stamp may be easily and securely attached to
   2-61  export documentation.
   2-62        (d)  The comptroller shall change the design of the stamps at
   2-63  least once each calendar quarter, or more frequently if the
   2-64  comptroller determines it is necessary for the enforcement of this
   2-65  section and the comptroller's rules.
   2-66        (e)  The comptroller may provide stamps only to a customs
   2-67  broker licensed under Section 151.157.
   2-68        (f)  A stamp is invalid if transferred to a person other than
   2-69  the customs broker to whom the comptroller issued the stamp, to an
   2-70  authorized employee of that customs broker, or to an authorized
    3-1  independent contractor.
    3-2        (g)  The comptroller shall charge an amount not to exceed
    3-3  five cents for each stamp.  The comptroller shall use the money
    3-4  from the sale of the stamps only for costs related to producing the
    3-5  stamps, including costs of materials, labor, and overhead.
    3-6        (h)  The comptroller may require stamps to be purchased in
    3-7  minimum quantities if the comptroller considers it necessary for
    3-8  the efficient administration of this section.
    3-9        Sec. 151.159.  REFUNDS; IDENTIFICATION CARDS.  (a)  The
   3-10  comptroller in writing may authorize a customs broker to refund
   3-11  taxes collected under this chapter at export locations specified by
   3-12  the comptroller.
   3-13        (b)  The comptroller may issue an export identification card
   3-14  to a wholesaler or retailer.  The card must contain the picture of
   3-15  the person to whom the card is issued.  The comptroller may issue
   3-16  the card only if the wholesaler or retailer shows by clear and
   3-17  convincing evidence that the wholesaler or retailer is a citizen
   3-18  and resident of a foreign country and that any tangible personal
   3-19  property purchased in this state by the wholesaler or retailer is
   3-20  for export purposes only and is to be used or consumed outside the
   3-21  territorial limits of the United States.  A wholesaler or retailer
   3-22  issued an export identification card may use the card only to
   3-23  facilitate the preparation of documentation by a customs broker
   3-24  under Section 151.307(b).  The comptroller may require a wholesaler
   3-25  or retailer applying for an export identification card to submit
   3-26  any information in any form the comptroller determines is necessary
   3-27  and to pay a fee in an amount the comptroller determines is
   3-28  necessary to pay for the cost of issuing the card.
   3-29        SECTION 2.  Section 151.307, Tax Code, is amended by amending
   3-30  Subsection (b) and adding Subsections (c) and (d) to read as
   3-31  follows:
   3-32        (b)  When an exemption is claimed because tangible personal
   3-33  property is exported beyond the territorial limits of the United
   3-34  States, proof of export may be shown only by:
   3-35              (1)  a bill of lading issued by a licensed and
   3-36  certificated carrier of persons or property showing the seller as
   3-37  consignor, the buyer as consignee, and a delivery point outside the
   3-38  territorial limits of the United States;
   3-39              (2)  documentation:
   3-40                    (A)  provided by a <licensed> United States
   3-41  Customs Broker licensed by the comptroller under Section 151.157;
   3-42                    (B)  certifying that delivery was made to a point
   3-43  outside the territorial limits of the United States; and
   3-44                    (C)  to which a stamp issued under Section
   3-45  151.158 is affixed in the manner required by that section or
   3-46  Section 151.157;
   3-47              (3)  import documents from the country of destination
   3-48  showing that the property was imported into a country other than
   3-49  the United States;
   3-50              (4)  an original airway, ocean, or railroad bill of
   3-51  lading and a forwarder's receipt if an air, ocean, or rail freight
   3-52  forwarder takes possession of the property; or
   3-53              (5)  any other manner provided by the comptroller for
   3-54  an enterprise authorized to make tax-free purchases under Section
   3-55  151.156.
   3-56        (c)  Documentation, including the stamp affixed to the
   3-57  documentation, that is provided by a customs broker licensed by the
   3-58  comptroller under Section 151.157 is presumed valid in the absence
   3-59  of clear and convincing evidence that the tangible personal
   3-60  property covered by the documentation was not exported outside the
   3-61  territorial limits of the United States.
   3-62        (d)  In this section:
   3-63              (1)  "Air forwarder" means a licensed International Air
   3-64  Transportation Association freight forwarder.
   3-65              (2)  "Ocean forwarder" means a licensed Federal
   3-66  Maritime Commission freight forwarder.
   3-67        SECTION 3.  Subchapter H, Chapter 151, Tax Code, is amended
   3-68  by adding Section 151.3071 to read as follows:
   3-69        Sec. 151.3071.  INSTALLATION OF CERTAIN EQUIPMENT FOR EXPORT.
   3-70  Electronic audio equipment that is exempted from the taxes imposed
    4-1  by this chapter because it is purchased for use beyond the
    4-2  territorial limits of the United States does not become subject to
    4-3  the taxes imposed by this chapter solely because the equipment is
    4-4  installed in this state.
    4-5        SECTION 4.  Subchapter L, Chapter 151, Tax Code, is amended
    4-6  by adding Sections 151.712 and 151.713 to read as follows:
    4-7        Sec. 151.712.  CIVIL PENALTY FOR PERSONS CERTIFYING EXPORTS.
    4-8  (a)  A person may not sign or certify proof of export documentation
    4-9  for the purpose of showing an exemption under Section 151.307(b)(2)
   4-10  unless:
   4-11              (1)  the person is:
   4-12                    (A)  a customs broker licensed by the comptroller
   4-13  under Section 151.157; or
   4-14                    (B)  an authorized employee of a customs broker
   4-15  licensed by the comptroller under Section 151.157; and
   4-16              (2)  the tangible personal property the export of which
   4-17  the person certifies is exported on the date and to the place shown
   4-18  on the export documentation signed by the person.
   4-19        (b)  A person who provides proof of documentation that
   4-20  tangible personal property has been exported outside of the United
   4-21  States or a person who may benefit from the provision of the proof
   4-22  of documentation, including a customs broker, authorized employee,
   4-23  authorized independent contractor, seller of the property or agent
   4-24  or employee of the seller, or a consumer of the property or agent
   4-25  or employee of the consumer, may not sell or buy the proof of
   4-26  documentation, including stamps required for the documentation.
   4-27  This subsection does not apply to a customs broker who accepts a
   4-28  fee for providing documentation under Section 151.307(b).
   4-29        (c)  Except as provided by Subsection (e), a person who
   4-30  violates this section is subject to a monetary penalty that may not
   4-31  exceed:
   4-32              (1)  $500 for the first violation;
   4-33              (2)  $1,000 for the second violation; and
   4-34              (3)  $3,000 for each subsequent violation.
   4-35        (d)  Except as provided by Subsection (e), each violation of
   4-36  this section is subject to a separate monetary penalty.
   4-37        (e)  The aggregate of monetary penalties imposed under this
   4-38  section against any person for all violations that occur in a
   4-39  calendar year may not exceed $30,000.
   4-40        (f)  In addition to any monetary penalty under this section,
   4-41  the comptroller may suspend or revoke under Section 151.157 the
   4-42  license of a customs broker who violates this section.
   4-43        (g)  A proceeding to impose a civil penalty or suspend or
   4-44  revoke a license because of a violation of this section is a
   4-45  contested case under the Administrative Procedure and Texas
   4-46  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
   4-47  Judicial review is by trial de novo.  The district courts of Travis
   4-48  County have exclusive original jurisdiction of a suit under this
   4-49  section.
   4-50        (h)  The comptroller must give notice of the comptroller's
   4-51  intent to impose a monetary or other penalty under this section not
   4-52  later than two years after the date of the alleged commission of a
   4-53  violation of this section or the comptroller may not impose a
   4-54  monetary or other penalty.
   4-55        (i)  In this section, "customs broker" and "authorized
   4-56  employee" have the meanings assigned by Section 151.157.
   4-57        Sec. 151.713.  FURNISHING FALSE INFORMATION TO CUSTOMS
   4-58  BROKER; CIVIL PENALTY.  (a)  A person may not obtain or attempt to
   4-59  obtain export documentation for the purpose of showing an exemption
   4-60  under Section 151.307(b)(2) from a customs broker or an authorized
   4-61  employee of a customs broker if the person knows, at the time the
   4-62  documentation is sought, that the information provided to the
   4-63  broker or employee is materially false, in whole or in part, and
   4-64  the documentation is sought for the purpose of evading the tax
   4-65  imposed by this chapter.
   4-66        (b)  After notice as provided by this section, a person who
   4-67  violates this section is subject to a monetary penalty that may not
   4-68  exceed:
   4-69              (1)  $500 for the first violation;
   4-70              (2)  $1,000 for the second violation; and
    5-1              (3)  $3,000 for each subsequent violation.
    5-2        (c)  Each violation of this section is subject to a separate
    5-3  monetary penalty.
    5-4        (d)  If the comptroller believes that a person has violated
    5-5  this section, the comptroller shall give written notice to the
    5-6  person to show cause why the person should not be subject to a
    5-7  monetary penalty for the violation.  The notice must advise the
    5-8  person of the allegations and explain that the person has a right
    5-9  to respond to the allegations in writing and request an oral
   5-10  hearing before the 31st day after the date that the notice is
   5-11  issued.
   5-12        (e)  The comptroller may not impose a monetary penalty under
   5-13  this section until the comptroller or a person designated by the
   5-14  comptroller:
   5-15              (1)  considers the allegations against the person;
   5-16              (2)  considers any timely written response made by the
   5-17  person;
   5-18              (3)  considers any evidence properly admitted at any
   5-19  oral hearing held on the allegations; and
   5-20              (4)  issues a written decision.
   5-21        (f)  The comptroller must give notice of the comptroller's
   5-22  intent to impose a monetary penalty under this section not later
   5-23  than four years after the date of the alleged commission of a
   5-24  violation of this section or the comptroller may not impose a
   5-25  monetary penalty.
   5-26        (g)  The penalty imposed by this section is in addition to
   5-27  any tax, penalty, and interest that may be assessed against a
   5-28  person who violates this section.
   5-29        (h)  In this section, "customs broker" and "authorized
   5-30  employee" have the meanings assigned by Section 151.157.
   5-31        SECTION 5.  This Act applies only to an exemption to the tax
   5-32  imposed under Chapter 151, Tax Code, claimed on or after the
   5-33  effective date of this Act.
   5-34        SECTION 6.  The importance of this legislation and the
   5-35  crowded condition of the calendars in both houses create an
   5-36  emergency and an imperative public necessity that the
   5-37  constitutional rule requiring bills to be read on three several
   5-38  days in each house be suspended, and this rule is hereby suspended,
   5-39  and that this Act take effect and be in force from and after its
   5-40  passage, and it is so enacted.
   5-41                               * * * * *
   5-42                                                         Austin,
   5-43  Texas
   5-44                                                         May 19, 1993
   5-45  Hon. Bob Bullock
   5-46  President of the Senate
   5-47  Sir:
   5-48  We, your Committee on International Relations, Trade, and
   5-49  Technology to which was referred H.B. No. 2413, have had the same
   5-50  under consideration, and I am instructed to report it back to the
   5-51  Senate with the recommendation that it do pass, as amended, and be
   5-52  printed.
   5-53                                                         Truan,
   5-54  Chairman
   5-55                               * * * * *
   5-56                               WITNESSES
   5-57                                                  FOR   AGAINST  ON
   5-58  ___________________________________________________________________
   5-59  Name:  Mr. John Christian                                      x
   5-60  Representing:  Comptroller of Public Accounts
   5-61  City:  Austin
   5-62  -------------------------------------------------------------------
   5-63  Name:  Mr. Mickey Moore                          x
   5-64  Representing:  Texas Retailers Association
   5-65  City:  Austin
   5-66  -------------------------------------------------------------------
   5-67  Name:  Mr. Ralph Wright                          x
   5-68  Representing:  Self
   5-69  City:  Laredo
   5-70  -------------------------------------------------------------------
    6-1  Name:  Ms. Maria Sotelo, President               x
    6-2  Representing:  Hidalgo Custom Brokers Assn
    6-3  City:  Hidalgo
    6-4  -------------------------------------------------------------------