74R9505 E
          By Craddick                                           H.B. No. 2627
          Substitute the following for H.B. No. 2627:
          By Craddick                                       C.S.H.B. No. 2627
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to administration and collection of the franchise tax.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Section 171.001(b)(1), Tax Code, is amended to
    1-5  read as follows:
    1-6              (1)  "Banking corporation" means each state, national,
    1-7  domestic, or foreign bank, including a limited banking association
    1-8  organized under Subchapter C, Chapter III, The Texas Banking Code
    1-9  (Article 342-360 et seq., Vernon's Texas Civil Statutes), and each
   1-10  bank organized under Section 25(a), Federal Reserve Act (12 U.S.C.
   1-11  Secs. 611-631) (edge corporations), but does not include a bank
   1-12  holding company as that term is defined by Section 2, Bank Holding
   1-13  Company Act of 1956 (12 U.S.C. Sec. 1841).  The term includes a
   1-14  bank organized under the laws of a foreign country, the
   1-15  Commonwealth of Puerto Rico, or a territory or possession of the
   1-16  United States whose effectively connected income, as defined by the
   1-17  Internal Revenue Code, is taxable in this state.
   1-18        SECTION 2.  Section 171.101(a), Tax Code, is amended to read
   1-19  as follows:
   1-20        (a)  Except as provided by Subsections (b) and (c), the net
   1-21  taxable capital of a corporation is computed by:
   1-22              (1)  adding the corporation's stated capital, as
   1-23  defined by Article 1.02, Texas Business Corporation Act, and the
   1-24  corporation's surplus, to determine the corporation's taxable
    2-1  capital;
    2-2              (2)  apportioning the corporation's taxable capital to
    2-3  this state as provided by Section 171.106(a) or (c), as applicable,
    2-4  or if a banking corporation, as provided by Section 171.1065, to
    2-5  determine the corporation's apportioned taxable capital; and
    2-6              (3)  subtracting from the amount computed under
    2-7  Subdivision (2) any other allowable deductions to determine the
    2-8  corporation's net taxable capital.
    2-9        SECTION 3.  Section 171.103, Tax Code, is amended to read as
   2-10  follows:
   2-11        Sec. 171.103.  Determination of Gross Receipts From Business
   2-12  Done in this State for Taxable Capital.  Except as specifically
   2-13  provided by Sections 171.1033-171.1037 for a banking corporation or
   2-14  by Section 171.1031 for a savings and loan association, in <In>
   2-15  apportioning taxable capital, the gross receipts of a corporation
   2-16  from its business done in this state is the sum of the
   2-17  corporation's receipts from:
   2-18              (1)  each sale of tangible personal property if the
   2-19  property is delivered or shipped to a buyer in this state
   2-20  regardless of the FOB point or another condition of the sale, and
   2-21  each sale of tangible personal property shipped from this state to
   2-22  a purchaser in another state in which the seller is not subject to
   2-23  taxation;
   2-24              (2)  each service performed in this state;
   2-25              (3)  each rental of property situated in this state;
   2-26              (4)  each royalty for the use of a patent or copyright
   2-27  in this state; and
    3-1              (5)  other business done in this state.
    3-2        SECTION 4.  Section 171.1031, Tax Code, is amended to read as
    3-3  follows:
    3-4        Sec. 171.1031.  APPORTIONMENT OF TAXABLE CAPITAL AND TAXABLE
    3-5  EARNED SURPLUS OF <BANKING CORPORATION AND> SAVINGS AND LOAN
    3-6  ASSOCIATION.  (a)  Interest and dividends received by a <banking
    3-7  corporation or a> savings and loan association are gross receipts
    3-8  of the <banking corporation or> savings and loan association from
    3-9  its business done in this state if the <banking corporation or>
   3-10  savings and loan association has its commercial domicile in this
   3-11  state.
   3-12        (b)  This section does not apply to any corporation other
   3-13  than a <banking corporation and a> savings and loan association.
   3-14        <(c)  To the extent that this subsection does not conflict
   3-15  with Article 8, Chapter 9, The Texas Banking Code of 1943 (Article
   3-16  342-908, Vernon's Texas Civil Statutes), the Banking Department of
   3-17  Texas is required to revoke the charter of any banking corporation
   3-18  certified by the Comptroller as being delinquent in the payment of
   3-19  its franchise tax.>
   3-20        SECTION 5.  Section 171.1032(a), Tax Code, is amended to read
   3-21  as follows:
   3-22        (a)  Except as specifically provided by Sections
   3-23  171.1033-171.1037 for a banking corporation and Section 171.1031
   3-24  for a savings and loan association, and except for the gross
   3-25  receipts of a corporation that are subject to the provisions of
   3-26  Section 171.1061, in apportioning taxable earned surplus, the gross
   3-27  receipts of a corporation from its business done in this state is
    4-1  the sum of the corporation's receipts from:
    4-2              (1)  each sale of tangible personal property if the
    4-3  property is delivered or shipped to a buyer in this state
    4-4  regardless of the FOB point or another condition of the sale, and
    4-5  each sale of tangible personal property shipped from this state to
    4-6  a purchaser in another state in which the seller is not subject to
    4-7  any tax on, or measured by, net income, without regard to whether
    4-8  the tax is imposed;
    4-9              (2)  each service performed in this state;
   4-10              (3)  each rental of property situated in this state;
   4-11              (4)  each royalty for the use of a patent or copyright
   4-12  in this state; and
   4-13              (5)  other business done in this state.
   4-14        SECTION 6.  Subchapter C, Chapter 171, Tax Code, is amended
   4-15  by adding Sections 171.1033-171.1037 to read as follows:
   4-16        Sec. 171.1033.  DETERMINATION OF GROSS RECEIPTS, PROPERTY,
   4-17  AND PAYROLL FACTORS FOR APPORTIONMENT OF TAXABLE CAPITAL AND
   4-18  TAXABLE EARNED SURPLUS OF BANKING CORPORATION.  A banking
   4-19  corporation shall determine the gross receipts factor, property
   4-20  factor, and payroll factor for purposes of apportioning the
   4-21  corporation's taxable capital and taxable earned surplus as
   4-22  provided by Sections 171.1034-171.1037.
   4-23        Sec. 171.1034.  GROSS RECEIPTS FACTOR:  BANKING CORPORATION.
   4-24  The gross receipts factor for a banking corporation is a fraction,
   4-25  the numerator of which is the gross receipts of the banking
   4-26  corporation from its business done in this state and the
   4-27  denominator of which is the gross receipts of the banking
    5-1  corporation in and outside this state.  The denominator of the
    5-2  gross receipts factor is determined using the same method used to
    5-3  determine the numerator of the gross receipts factor.  The gross
    5-4  receipts factor includes only the receipts that are included in the
    5-5  banking corporation's taxable capital or taxable earned surplus for
    5-6  the period on which the tax is based.  All receipts that would be
    5-7  assigned under this section to a state in which the taxpayer is not
    5-8  taxable are included in the numerator if the taxpayer's commercial
    5-9  domicile is in this state.  All receipts of a banking corporation
   5-10  not specifically described by Subdivisions (1)-(12) are apportioned
   5-11  as business done in this state under the rules prescribed by
   5-12  Section 171.103 for taxable capital and under the rules prescribed
   5-13  by Section 171.1032 for taxable earned surplus.  The numerator of
   5-14  the gross receipts factor includes all receipts, interest, fees, or
   5-15  penalties in the nature of interest, net gains, but not less than
   5-16  zero, charges, fees, and other receipts of the banking corporation
   5-17  from:
   5-18              (1)  the lease or rental of real property located in
   5-19  this state and owned by the taxpayer or the sublease of real
   5-20  property located in this state and for which the taxpayer is the
   5-21  sublessor;
   5-22              (2)  the lease or rental of tangible personal property,
   5-23  other than transportation property, that is owned by the taxpayer
   5-24  and located in this state when it is first placed in service by the
   5-25  lessee;
   5-26              (3)  the lease or rental of transportation property
   5-27  owned by the taxpayer to the extent the property is used in this
    6-1  state, subject to the following:
    6-2                    (A)  the extent to which an aircraft is deemed to
    6-3  be used in this state and the amount of receipts to be included in
    6-4  the numerator of the receipts factor is determined by multiplying
    6-5  all the receipts from the lease or rental of the aircraft by a
    6-6  fraction, the numerator of which is the number of landings of the
    6-7  aircraft in this state and the denominator of which is the number
    6-8  of landings of the aircraft in and outside this state;
    6-9                    (B)  if the extent of the use of any
   6-10  transportation property in this state cannot be determined, the
   6-11  property is deemed to be used wholly in the state in which the
   6-12  property has its principal base of operations; and
   6-13                    (C)  a motor vehicle is deemed to be used wholly
   6-14  in the state in which it is registered;
   6-15              (4)  a loan secured by real property located in this
   6-16  state, subject to the following:
   6-17                    (A)  if the real property securing the loan is
   6-18  located both in this state and one or more other states, the gross
   6-19  receipts from the loan are included as business done in this state
   6-20  if more than 50 percent of the fair market value of the real
   6-21  property is located in this state;
   6-22                    (B)  if more than 50 percent of the fair market
   6-23  value of the real property is not located in any one state, the
   6-24  gross receipts are included as business done in this state if the
   6-25  borrower is located in this state; and
   6-26                    (C)  the determination of whether the real
   6-27  property securing a loan is located in this state is made at the
    7-1  time the original loan agreement is made and any subsequent
    7-2  substitutions of collateral are disregarded;
    7-3              (5)  a loan not secured by real property if the
    7-4  borrower is located in this state;
    7-5              (6)  net gains from the sale of loans, including income
    7-6  recorded under the coupon stripping rule of Section 1286, Internal
    7-7  Revenue Code, subject to the following:
    7-8                    (A)  if the amount of the net gains, but not less
    7-9  than zero, is from the sale of loans secured by real property, the
   7-10  amount of the net gains included as business done in this state is
   7-11  determined by multiplying the net gains by a fraction, the
   7-12  numerator of which is the amount included as business done in this
   7-13  state under Subdivision (4) and the denominator of which is the
   7-14  taxpayer's total amount of interest and fees or penalties in the
   7-15  nature of interest from all loans secured by real property; and
   7-16                    (B)  if the amount of the net gains, but not less
   7-17  than zero, is from the sale of loans not secured by real property,
   7-18  the amount of the net gains included as business done in this state
   7-19  is determined by multiplying the net gains by a fraction, the
   7-20  numerator of which is the amount included as business done in this
   7-21  state under Subdivision (5) and the denominator of which is the
   7-22  taxpayer's total amount of interest and fees or penalties in the
   7-23  nature of interest from all loans not secured by real property;
   7-24              (7)  a credit card receivable and a credit card fee,
   7-25  such as an annual fee, charged to a card holder, if the billing
   7-26  address of the card holder is in this state;
   7-27              (8)  a credit card issuer's reimbursement fee and any
    8-1  net gain, but not less than zero, from the sale of a credit card
    8-2  receivable, provided that the amount of credit card issuer's
    8-3  reimbursement fees or net gains from the sale of credit card
    8-4  receivables included as business done in this state is determined
    8-5  by multiplying the credit card issuer's reimbursement fees or net
    8-6  gains from the sale of credit card receivables, respectively, by a
    8-7  fraction, the numerator of which is the amount included as business
    8-8  done in this state from credit card receivables and credit card
    8-9  fees under Subdivision (7) and the denominator of which is the
   8-10  taxpayer's total amount of interest, and fees or penalties in the
   8-11  nature of interest, from all credit card receivables and all credit
   8-12  card fees charged to card holders;
   8-13              (9)  a merchant discount, if the commercial domicile of
   8-14  the merchant is in this state;
   8-15              (10)  a loan servicing fee, subject to the following:
   8-16                    (A)  if loan servicing fees are derived from
   8-17  loans secured by real property, the amount of the loan servicing
   8-18  fees included as business done in this state is determined by
   8-19  multiplying the loan servicing fees by a fraction, the numerator of
   8-20  which is the amount included as business done in this state under
   8-21  Subdivision (4) and the denominator of which is the taxpayer's
   8-22  total amount of interest, and fees or penalties in the nature of
   8-23  interest, from all loans secured by real property;
   8-24                    (B)  if the loan servicing fees are derived from
   8-25  loans not secured by real property, the amount of the loan
   8-26  servicing fees included as business done in this state is
   8-27  determined by multiplying the loan servicing fees by a fraction,
    9-1  the numerator of which is the amount included as business done in
    9-2  this state under Subdivision (5) and the denominator of which is
    9-3  the taxpayer's total amount of interest, and fees or penalties in
    9-4  the nature of interest, from all loans not secured by real
    9-5  property; and
    9-6                    (C)  if the loan servicing fees are derived from
    9-7  servicing either the secured or unsecured loans of another, the
    9-8  numerator of the receipts factor includes those fees if the
    9-9  borrower is located in this state;
   9-10              (11)  any other fee or charge for a service not
   9-11  otherwise apportioned under this subsection, if the service is
   9-12  performed in this state, provided that if the service is performed
   9-13  both in and outside of this state, the receipts factor includes
   9-14  receipts from services not otherwise apportioned under this section
   9-15  if the greater proportion of the income-producing activity is
   9-16  performed in this state determined according to the cost of
   9-17  performance; and
   9-18              (12)  any interest, dividends, net gains, but not less
   9-19  than zero, and other income from investment assets and activities
   9-20  and from trading assets and activities that are attributable to
   9-21  this state, subject to the following:
   9-22                    (A)  investment assets and activities and trading
   9-23  assets and activities included in the receipts factor include
   9-24  investment securities, trading account assets, federal funds,
   9-25  securities purchased and sold under agreements to resell or
   9-26  repurchase, options, futures contracts, forward contracts, notional
   9-27  principal contracts such as swaps, equities, and foreign currency
   10-1  transactions;
   10-2                    (B)  with respect to the investment and trading
   10-3  assets and activities involving federal funds sold and securities
   10-4  purchased under resale agreements, the receipts factor includes the
   10-5  amount by which interest from federal funds sold and securities
   10-6  purchased under resale agreements exceeds interest expense on
   10-7  federal funds purchased and securities sold under repurchase
   10-8  agreements;
   10-9                    (C)  with respect to the trading assets and
  10-10  activities involving interest, dividends, gains, and other income
  10-11  from trading assets and activities, the receipts factor includes
  10-12  the amount by which interest, dividends, gains, and other income
  10-13  from trading assets and activities, including assets and activities
  10-14  in the matched book, in the arbitrage book, and foreign currency
  10-15  transactions, exceed amounts paid in lieu of interest, amounts paid
  10-16  in lieu of dividends, and losses from those assets and activities;
  10-17                    (D)  the amount of interest, dividends, net
  10-18  gains, but not less than zero, and other income from investment
  10-19  assets and activities in the investment account to be attributed to
  10-20  this state as business done in this state and included in the
  10-21  numerator is determined by multiplying all that income from those
  10-22  assets and activities by a fraction, the numerator of which is the
  10-23  average value of those assets that are properly assigned to a
  10-24  regular place of business of the taxpayer in this state and the
  10-25  denominator of which is the average value of all those assets;
  10-26                    (E)  the amount of interest from federal funds
  10-27  sold and purchased and from securities purchased under resale
   11-1  agreements and securities sold under repurchase agreements to be
   11-2  attributed to this state as business done in this state and
   11-3  included in the numerator is determined by multiplying the amount
   11-4  described by Paragraph (B) from those funds and securities by a
   11-5  fraction, the numerator of which is the average value of the
   11-6  federal funds sold and securities purchased under agreements to
   11-7  resell that are properly assigned to a regular place of business of
   11-8  the taxpayer in this state and the denominator of which is the
   11-9  average value of all those funds and securities;
  11-10                    (F)  the amount of interest, dividends, gains,
  11-11  and other income from trading assets and activities, including
  11-12  assets and activities in the matched book, in the arbitrage book,
  11-13  and foreign currency transactions, but excluding amounts described
  11-14  by Paragraphs (D) and (E), to be attributed to this state as
  11-15  business done in this state and included in the numerator is
  11-16  determined by multiplying the amount described by Paragraph (C) by
  11-17  a fraction, the numerator of which is the average value of those
  11-18  trading assets that are properly assigned to a regular place of
  11-19  business of the taxpayer in this state and the denominator of which
  11-20  is the average value of all those assets;
  11-21                    (G)  for purposes of this subdivision, average
  11-22  value is determined using the rules for determining the average
  11-23  value of tangible personal property prescribed by Subsection
  11-24  (c)(3); and
  11-25                    (H)  in lieu of using the method prescribed by
  11-26  Paragraphs (D) through (G), the taxpayer may elect, or the
  11-27  comptroller may require in order to represent fairly the business
   12-1  activity of the taxpayer in this state, the use of the following
   12-2  method:
   12-3                          (i)  the amount of interest, dividends, net
   12-4  gains, but not less than zero, and other income from investment
   12-5  assets and activities in the investment account to be attributed to
   12-6  this state and included in the numerator is determined by
   12-7  multiplying all that income from those assets and activities by a
   12-8  fraction, the numerator of which is the gross income from those
   12-9  assets and activities that are properly assigned to a regular place
  12-10  of business of the taxpayer in this state and the denominator of
  12-11  which is the gross income from all those assets and activities;
  12-12                          (ii)  the amount of interest from federal
  12-13  funds sold and purchased and from securities purchased under resale
  12-14  agreements and securities sold under repurchase agreements
  12-15  attributable to this state and included in the numerator is
  12-16  determined by multiplying the amount described by Paragraph (B)
  12-17  from those funds and securities by a fraction, the numerator of
  12-18  which is the gross income from those funds and securities that are
  12-19  properly assigned to a regular place of business of the taxpayer in
  12-20  this state and the denominator of which is the gross income from
  12-21  all those funds and securities; and
  12-22                          (iii)  the amount of interest, dividends,
  12-23  gains, and other income from trading assets and activities,
  12-24  including assets and activities in the matched book, in the
  12-25  arbitrage book, and foreign currency transactions, but excluding
  12-26  amounts described by Subparagraph (i) or (ii), attributable to this
  12-27  state and included in the numerator is determined by multiplying
   13-1  the amount described by Paragraph (C) by a fraction, the numerator
   13-2  of which is the gross income from those trading assets and
   13-3  activities that are properly assigned to a regular place of
   13-4  business of the taxpayer in this state and the denominator of which
   13-5  is the gross income from all those assets and activities;
   13-6                    (I)  if the taxpayer elects or is required by the
   13-7  comptroller to use the method prescribed by Paragraph (H), the
   13-8  taxpayer shall use this method on all subsequent returns unless the
   13-9  taxpayer receives prior permission from the comptroller to use, or
  13-10  the comptroller requires, a different method; and
  13-11                    (J)  the taxpayer has the burden of proving that
  13-12  an investment asset or activity or trading asset or activity was
  13-13  properly assigned to a regular place of business outside of this
  13-14  state by demonstrating that the day-to-day decisions regarding the
  13-15  asset or activity occurred at a regular place of business outside
  13-16  this state, subject to the following:
  13-17                          (A)  if the day-to-day decisions regarding
  13-18  an investment asset or activity or trading asset or activity occur
  13-19  at more than one regular place of business and one of those regular
  13-20  places of business is in this state, and one of those regular
  13-21  places of business is outside this state, the asset or activity is
  13-22  considered to be located at the regular place of business of the
  13-23  taxpayer where the investment or trading policies or guidelines
  13-24  with respect to the asset or activity are established; and
  13-25                          (B)  unless the taxpayer or comptroller
  13-26  demonstrates to the contrary, the investment or trading policies
  13-27  and guidelines are presumed to be established at the commercial
   14-1  domicile of the taxpayer.
   14-2        Sec. 171.1035.  PROPERTY FACTOR:  BANKING CORPORATION.  (a)
   14-3  The property factor for a banking corporation is a fraction that
   14-4  represents the percentage of the taxpayer's real property, tangible
   14-5  personal property, loans, and credit card receivables apportioned
   14-6  to this state.  The numerator of the fraction is the average value
   14-7  of real and tangible personal property rented to the taxpayer that
   14-8  is located or used in this state, the average value of the
   14-9  taxpayer's real and tangible personal property owned that is
  14-10  located or used in this state, and the average value of the
  14-11  taxpayer's loans and credit card receivables that are located in
  14-12  this state, and the denominator of the fraction is the average
  14-13  value of all that property located or used in and outside this
  14-14  state.
  14-15        (b)  The property factor includes only property the income
  14-16  and expenses of which are included, or would have been included if
  14-17  not fully depreciated or expensed, or depreciated or expensed to a
  14-18  nominal amount, in the computation of the taxpayer's taxable
  14-19  capital or taxable earned surplus for the period on which the tax
  14-20  is based.
  14-21        (c)  The value of property included in the property factor is
  14-22  determined as follows:
  14-23              (1)  for real property and tangible personal property
  14-24  owned by the taxpayer, the value is the original cost or other
  14-25  basis of that property for federal income tax purposes without
  14-26  regard to depletion, depreciation, or amortization;
  14-27              (2)  for loans, the value is the outstanding principal
   15-1  balance, without regard to any reserve for bad debts, provided that
   15-2  if a loan is charged off in whole or in part for federal income tax
   15-3  purposes, the portion of the loan charged off is not outstanding
   15-4  and a specifically allocated reserve established under regulatory
   15-5  or financial accounting guidelines that is treated as charged off
   15-6  for federal income tax purposes is treated as charged off for
   15-7  purposes of this subsection; and
   15-8              (3)  for credit card receivables, the value is the
   15-9  outstanding principal balance, without regard to any reserve for
  15-10  bad debts, provided that if a credit card receivable is charged-off
  15-11  in whole or in part for federal income tax purposes, the portion of
  15-12  the receivable charged-off is not outstanding.
  15-13        (d)  The average value of property owned by the taxpayer is
  15-14  computed for the entire tax period by adding the value of the
  15-15  property on the first day of the period on which the tax is based
  15-16  and the value on the last day of the period on which the tax is
  15-17  based and dividing the sum by two.  The comptroller may require
  15-18  averaging more frequently if the averaging does not properly
  15-19  reflect the average value.  The taxpayer may elect to average more
  15-20  frequently.  If averaging more frequently is required by the
  15-21  comptroller or is elected by the taxpayer, the same method of
  15-22  valuation must be used consistently by the taxpayer with respect to
  15-23  property in and outside this state and on all subsequent reports,
  15-24  unless the taxpayer receives prior permission from the comptroller
  15-25  or the comptroller requires a different method of determining
  15-26  average value.
  15-27        (e)  The average value of real property and tangible personal
   16-1  property that the taxpayer has rented from another and that is not
   16-2  treated as property owned by the taxpayer for federal income tax
   16-3  purposes, is determined for an annual tax period by multiplying the
   16-4  gross rents payable during the period by eight.  If the use of this
   16-5  method results in inaccurate valuations of rented property, any
   16-6  other method that properly reflects the value may be adopted by the
   16-7  comptroller or by the taxpayer if the comptroller approves the
   16-8  method in writing.  Once approved, the other method of valuation
   16-9  must be used on all subsequent reports unless the taxpayer receives
  16-10  prior approval from the comptroller or the comptroller requires a
  16-11  different method of valuation.
  16-12        (f)  The location of real property and tangible personal
  16-13  property owned by or rented to the taxpayer for purposes of the
  16-14  property factor is determined as follows:
  16-15              (1)  except as described by Subdivision (2), real
  16-16  property and tangible personal property owned by or rented to the
  16-17  taxpayer is considered to be located in this state if it is
  16-18  physically located, situated, or used in this state; and
  16-19              (2)  transportation property is included in the
  16-20  numerator of the property factor to the extent that the property is
  16-21  used in this state, subject to the following:
  16-22                    (A)  the extent an aircraft is deemed to be used
  16-23  in this state and the amount of value that is to be included in the
  16-24  numerator of this state's property factor is determined by
  16-25  multiplying the average value of the aircraft by a fraction, the
  16-26  numerator of which is the number of landings of the aircraft in
  16-27  this state and the denominator of which is the total number of
   17-1  landings of the aircraft in and outside this state;
   17-2                    (B)  if the extent of the use of any
   17-3  transportation property in this state cannot be determined, the
   17-4  property is deemed to be used wholly in the state in which the
   17-5  property has its principal base of operations; and
   17-6                    (C)  a motor vehicle is deemed to be used wholly
   17-7  in the state in which it is registered.
   17-8        (g)  The location of loans and credit card receivables for
   17-9  purposes of the property factor shall be determined as follows:
  17-10              (1)  a loan or credit card receivable properly assigned
  17-11  to a regular place of business of the taxpayer in this state is
  17-12  considered to be located in this state;
  17-13              (2)  a loan or credit card receivable is properly
  17-14  assigned to the regular place of business with which it has a
  17-15  preponderance of substantive contacts, provided that a loan or
  17-16  credit card receivable assigned by the taxpayer to a regular place
  17-17  of business outside this state is presumed to have been properly
  17-18  assigned if:
  17-19                    (A)  the taxpayer has assigned, in the regular
  17-20  course of its business, the loan or credit card receivable on its
  17-21  records to a regular place of business consistent with federal or
  17-22  state regulatory requirements;
  17-23                    (B)  the assignment on its records is based on
  17-24  substantive contacts of the loan or credit card receivable to the
  17-25  regular place of business; and
  17-26                    (C)  the taxpayer uses the records reflecting
  17-27  assignment of loans or credit card receivables for the filing of
   18-1  all state and local tax returns for which an assignment of loans or
   18-2  credit card receivables to a regular place of business is required;
   18-3              (3)  the presumption of proper assignment of a loan or
   18-4  credit card receivable provided by Subdivision (2) may be rebutted
   18-5  on a showing by the comptroller, supported by a preponderance of
   18-6  the evidence, that the preponderance of substantive contacts
   18-7  regarding the loan or credit card receivable did not occur at the
   18-8  regular place of business to which it was assigned on the
   18-9  taxpayer's records, and when such presumption has been rebutted,
  18-10  the loan shall then be located in this state if the taxpayer had a
  18-11  regular place of business in this state at the time the loan was
  18-12  made, and the taxpayer fails to show, by a preponderance of the
  18-13  evidence, that the preponderance of substantive contacts regarding
  18-14  such loan did not occur in this state;
  18-15              (4)  in the case of a loan which is assigned by the
  18-16  taxpayer to a place outside this state which is not a regular place
  18-17  of business, it shall be presumed, subject to rebuttal by the
  18-18  taxpayer on a showing supported by the preponderance of evidence,
  18-19  that the preponderance of substantive contacts regarding the loan
  18-20  occurred in this state if, at the time the loan was made, the
  18-21  taxpayer's commercial domicile, as defined by Section
  18-22  171.1037(b)(2), was in this state; and
  18-23              (5)  to determine the state in which the preponderance
  18-24  of substantive contacts relating to a loan have occurred, the facts
  18-25  and circumstances regarding the loan at issue shall be reviewed on
  18-26  a case-by-case basis, and consideration shall be given to such
  18-27  activities as the solicitation, investigation, negotiation,
   19-1  approval, and administration of the loan.  The terms
   19-2  "solicitation," "investigation," "negotiation," "approval," and
   19-3  "administration" are defined as follows:
   19-4                    (A)  "Solicitation."  Solicitation is either
   19-5  active or passive.  Active solicitation occurs when an employee of
   19-6  the taxpayer initiates the contact with the customer.  Such
   19-7  activity is located at the regular place of business that the
   19-8  taxpayer's employee is regularly connected with or working out of,
   19-9  regardless of where the services of such employee were actually
  19-10  performed.  Passive solicitation occurs when the customer initiates
  19-11  the contact with the taxpayer.  If the customer's initial contact
  19-12  was not at a regular place of business of the taxpayer, the regular
  19-13  place of business, if any, where the passive solicitation occurred
  19-14  is determined by the facts in each case;
  19-15                    (B)  "Investigation."  Investigation is the
  19-16  procedure whereby employees of the taxpayer determine the
  19-17  creditworthiness of the customer as well as the degree of risk
  19-18  involved in making a particular agreement.  Such activity is
  19-19  located at the regular place of business which the taxpayer's
  19-20  employees are regularly connected with or working out of,
  19-21  regardless of where the services of such employees were actually
  19-22  performed;
  19-23                    (C)  "Negotiation."  Negotiation is the procedure
  19-24  whereby employees of the taxpayer and its customer determine the
  19-25  terms of the agreement (e.g., the amount, duration, interest rate,
  19-26  frequency of repayment, currency denomination, and security
  19-27  required).  Such activity is located at the regular place of
   20-1  business which the taxpayer's employees are regularly connected
   20-2  with or working out of, regardless of where the services of such
   20-3  employees were actually performed;
   20-4                    (D)  "Approval."  Approval is the procedure
   20-5  whereby employees or the board of directors of the taxpayer make
   20-6  the final determination whether to enter into the agreement.  Such
   20-7  activity is located at the regular place of business which the
   20-8  taxpayer's employees are regularly connected with or working out
   20-9  of, regardless of where the services of such employees are actually
  20-10  performed.  If the board of directors makes the final
  20-11  determination, such activity is located at the commercial domicile
  20-12  of the taxpayer; and
  20-13                    (E)  "Administration."  Administration is the
  20-14  process of managing the account.  This process includes
  20-15  bookkeeping, collecting the payments, corresponding with the
  20-16  customer, reporting to management regarding the status of the
  20-17  agreement, and proceeding against the borrower or the security
  20-18  interest if the borrower is in default.  Such activity is located
  20-19  at the regular place of business which oversees this activity.
  20-20        Sec. 171.1036.  PAYROLL FACTOR:  BANKING CORPORATION.  (a)
  20-21  The payroll factor for a banking corporation is a fraction, the
  20-22  numerator of which is the total amount paid in this state by the
  20-23  taxpayer for compensation and the denominator of which is the total
  20-24  amount paid by the taxpayer as compensation in and outside this
  20-25  state.  The payroll factor shall include only that compensation
  20-26  that is included in the computation of taxable capital or taxable
  20-27  earned surplus for the period on which the tax is based.
   21-1        (b)  The compensation paid to an employee for services or
   21-2  activities connected to the production of nonbusiness income and
   21-3  the compensation paid to an independent contractor or a person who
   21-4  cannot be classified as an employee of the taxpayer is excluded
   21-5  from both the numerator and the denominator of the factor.  Income
   21-6  is considered nonbusiness income if it is not includable in the
   21-7  taxable earned surplus base.
   21-8        (c)  Compensation is paid in this state if any one of the
   21-9  following tests, applied consecutively, is met:
  21-10              (1)  the employee's service is performed entirely in
  21-11  this state;
  21-12              (2)  the employee's service is performed both in and
  21-13  outside this state, but the service performed outside this state is
  21-14  incidental to the employee's service in this state because the
  21-15  service is temporary or transitory in nature or is rendered in
  21-16  connection with an isolated transaction; or
  21-17              (3)  if the employee's services are performed both in
  21-18  and outside this state, the employee's compensation is attributed
  21-19  to this state:
  21-20                    (A)  if the employee's principal base of
  21-21  operations is in this state;
  21-22                    (B)  if there is no principal base of operations
  21-23  in any state in which some part of the service is performed, but
  21-24  the place from which the service is directed or controlled is in
  21-25  this state; or
  21-26                    (C)  if the principal base of operations and the
  21-27  place from which the service is directed or controlled is not in
   22-1  any state in which some part of the service is performed, but the
   22-2  employee's residence is in this state.
   22-3        Sec. 171.1037.  SPECIAL RULES AND DEFINITIONS FOR BANKING
   22-4  CORPORATION APPORTIONMENT FACTORS.  (a)  For purposes of Sections
   22-5  171.1033-171.1036 and this section:
   22-6              (1)  a borrower is located in this state if the
   22-7  borrower:
   22-8                    (A)  is engaged in a trade or business that
   22-9  maintains its commercial domicile in this state; or
  22-10                    (B)  if the borrower is not engaged in a trade or
  22-11  business, has a billing address in this state;
  22-12              (2)  a credit card holder is located in this state if
  22-13  the credit card holder's billing address is in this state;
  22-14              (3)  a loan is secured by real property if at least 50
  22-15  percent of the aggregate value of the collateral used to secure the
  22-16  loan or other obligation, as valued at fair market value at the
  22-17  time the original loan or obligation was incurred, is real
  22-18  property; and
  22-19              (4)  a taxpayer is taxable if:
  22-20                    (A)  the taxpayer is subject in another state to:
  22-21                          (i)  a net income tax;
  22-22                          (ii)  a franchise tax measured by net
  22-23  income;
  22-24                          (iii)  a franchise tax for the privilege of
  22-25  doing business;
  22-26                          (iv)  a corporate stock tax, including a
  22-27  bank share tax;
   23-1                          (v)  a single business tax;
   23-2                          (vi)  an earned surplus tax; or
   23-3                          (vii)  another tax that is imposed on or
   23-4  measured by net income; or
   23-5                    (B)  another state has jurisdiction to subject
   23-6  the taxpayer to a tax prescribed by Paragraph (A), regardless of
   23-7  whether the state actually imposes the tax.
   23-8        (b)  In Sections 171.1033-171.1036 and this section:
   23-9              (1)  "Billing address" means the location indicated in
  23-10  the books and records of the taxpayer on the first day of the
  23-11  period on which the tax is based, or on a later date in the period
  23-12  when the customer relationship began, as the address where any
  23-13  notice, statement, or bill relating to a customer's account is
  23-14  mailed.
  23-15              (2)  "Commercial domicile" means the headquarters of
  23-16  the trade or business, that is, the place from which the trade or
  23-17  business is principally managed and directed, or if a banking
  23-18  corporation is organized under the laws of a foreign country, the
  23-19  Commonwealth of Puerto Rico, or any territory or possession of the
  23-20  United States or the District of Columbia, the place from which
  23-21  that taxpayer's trade or business in the United States is
  23-22  principally managed and directed.  There is a rebuttable
  23-23  presumption that the location from which the taxpayer's trade or
  23-24  business is principally managed and directed is the state of the
  23-25  United States or the District of Columbia to which the greatest
  23-26  number of employees are regularly connected or out of which they
  23-27  are working on the last day of the period on which the tax is
   24-1  based, regardless of where the services of those employees are
   24-2  performed.
   24-3              (3)  "Compensation" includes all wages, salaries,
   24-4  commissions, and any other forms of remuneration paid to an
   24-5  employee for personal services that are considered income under the
   24-6  Internal Revenue Code.  In the case of an employee not subject to
   24-7  the Internal Revenue Code, for example, an employee employed in a
   24-8  foreign country, the determination of whether those payments would
   24-9  constitute gross income to those employees under the Internal
  24-10  Revenue Code is made as though the employees were subject to the
  24-11  Internal Revenue Code.
  24-12              (4)  "Credit card" means a credit, travel, or
  24-13  entertainment card.
  24-14              (5)  "Credit card issuer's reimbursement fee" means the
  24-15  fee a taxpayer receives from a merchant's bank because one of the
  24-16  persons to whom the taxpayer has issued a credit card has charged
  24-17  merchandise or services to the credit card.
  24-18              (6)  "Employee" means, with respect to a particular
  24-19  taxpayer, an individual who, under the usual common law rules
  24-20  applicable in determining the employer-employee relationship, has
  24-21  the status of an employee of that taxpayer.
  24-22              (7)  "Gross rents" means the actual sum of money or
  24-23  other consideration payable for the use or possession of property.
  24-24  The term includes:
  24-25                    (A)  any amount payable for the use or possession
  24-26  of real property or tangible property whether designated as a fixed
  24-27  sum of money or as a percentage of receipts, profits, or otherwise;
   25-1                    (B)  any amount payable as additional rent or in
   25-2  lieu of rent, such as interest, taxes, insurance, repairs, or any
   25-3  other amount required to be paid by the terms of a lease or other
   25-4  arrangement;
   25-5                    (C)  a proportionate part of the cost of any
   25-6  improvement to real property made by or on behalf of the taxpayer
   25-7  that reverts to the owner or lessor on termination of a lease or
   25-8  other arrangement, determined by computing the amount of
   25-9  amortization or depreciation allowed in computing the taxable
  25-10  capital or taxable earned surplus base for the period on which the
  25-11  tax is based; except that if a building is erected on leased land
  25-12  by or on behalf of the taxpayer, the value of the land is
  25-13  determined by multiplying the gross rent by eight and the value of
  25-14  the building is determined in the same manner as if owned by the
  25-15  taxpayer; and
  25-16                    (D)  the term does not include:
  25-17                          (i)  reasonable amounts payable as separate
  25-18  charges for water and electric service furnished by the lessor;
  25-19                          (ii)  reasonable amounts payable as service
  25-20  charges for janitorial services furnished by the lessor;
  25-21                          (iii)  reasonable amounts payable for
  25-22  storage, provided the amounts are payable for space not designated
  25-23  and not under the control of the taxpayer; and
  25-24                          (iv)  that portion of any rental payment
  25-25  that is applicable to the space subleased from the taxpayer and not
  25-26  used by it.
  25-27              (8)  "Loan" means any extension of credit resulting
   26-1  from direct negotiations between the taxpayer and its customer, or
   26-2  the purchase, in whole or in part, of the extension of credit from
   26-3  another, or both.  The term includes participations, syndications,
   26-4  and leases treated as loans for federal income tax purposes, but
   26-5  does not include:
   26-6                    (A)  property treated as a loan under Section
   26-7  595, Internal Revenue Code;
   26-8                    (B)  futures or forward contracts, options, and
   26-9  notional principal contracts, such as swaps;
  26-10                    (C)  credit card receivables, including purchased
  26-11  credit card relationships;
  26-12                    (D)  non-interest-bearing balances due from other
  26-13  depository institutions;
  26-14                    (E)  cash items in the process of collection;
  26-15                    (F)  federal funds sold;
  26-16                    (G)  securities purchased under agreements to
  26-17  resell;
  26-18                    (H)  assets held in a trading account;
  26-19                    (I)  securities;
  26-20                    (J)  interests in a real estate mortgage
  26-21  investment conduit (REMIC) or other mortgage-backed or asset-backed
  26-22  security; and
  26-23                    (K)  other similar items.
  26-24              (9)  "Merchant discount" means the fee or negotiated
  26-25  discount charged to a merchant by the taxpayer for the privilege of
  26-26  participating in a program in which a credit card is accepted in
  26-27  payment for merchandise or services sold to the card holder.  The
   27-1  fee is computed net of any card holder charge-backs, but is not
   27-2  reduced by an interchange transaction fee or by a credit card
   27-3  issuer's reimbursement fee paid to another for charges made by its
   27-4  card holders.
   27-5              (10)  "Participation" means an extension of credit in
   27-6  which an undivided ownership interest is held on a pro rata basis
   27-7  in a single loan or pool of loans and related collateral.  In a
   27-8  loan participation, the credit originator initially makes the loan
   27-9  and then subsequently resells all or a portion of it to other
  27-10  lenders.  The participation may or may not be known to the
  27-11  borrower.
  27-12              (11)  "Person" means an individual, estate, trust,
  27-13  partnership, corporation, and any other business entity.
  27-14              (12)  "Principal base of operations" means:
  27-15                    (A)  with respect to transportation property, the
  27-16  place of more or less permanent nature from which the property is
  27-17  regularly directed or controlled; and
  27-18                    (B)  with respect to an employee, the place of
  27-19  more or less permanent nature from which the employee regularly
  27-20  starts the employee's work and to which the employee customarily
  27-21  returns to:
  27-22                          (i)  receive instructions from the
  27-23  employee's employer or communications from the employee's customers
  27-24  or other persons; or
  27-25                          (ii)  perform any other functions necessary
  27-26  to the exercise of the employee's trade or profession at some other
  27-27  point or points.
   28-1              (13)  "Real property owned" and "tangible personal
   28-2  property owned" mean real and tangible personal property,
   28-3  respectively:
   28-4                    (A)  on which the taxpayer may claim depreciation
   28-5  for federal income tax purposes; or
   28-6                    (B)  to which the taxpayer holds legal title and
   28-7  on which no other person may claim depreciation for federal income
   28-8  tax purposes or could claim depreciation if subject to federal
   28-9  income tax.  Real and tangible personal property does not include
  28-10  coin, currency, or property acquired in lieu of or under a
  28-11  foreclosure.
  28-12              (14)  "Regular place of business" means an office at
  28-13  which the taxpayer carries on the taxpayer's business in a regular
  28-14  and systematic manner and that is continuously maintained,
  28-15  occupied, and used by employees of the taxpayer.
  28-16              (15)  "State" means:
  28-17                    (A)  a state of the United States;
  28-18                    (B)  the District of Columbia;
  28-19                    (C)  the Commonwealth of Puerto Rico;
  28-20                    (D)  a territory or possession of the United
  28-21  States; or
  28-22                    (E)  a foreign country.
  28-23              (16)  "Syndication" means an extension of credit funded
  28-24  by at least two persons in which each person's risk is limited to a
  28-25  specified percentage of the total extension of credit or to a
  28-26  specified dollar amount.
  28-27              (17)  "Transportation property" means a vehicle or
   29-1  vessel capable of moving under its own power, such as an aircraft,
   29-2  train, water vessel, or motor vehicle, as well as any equipment or
   29-3  a container attached to that property, such as rolling stock, a
   29-4  barge, a trailer, or the like.
   29-5        SECTION 7.  Subchapter C, Chapter 171, Tax Code, is amended
   29-6  by adding Section 171.1065 to read as follows:
   29-7        Sec. 171.1065.  APPORTIONMENT OF TAXABLE CAPITAL AND TAXABLE
   29-8  EARNED SURPLUS OF BANKING CORPORATIONS.  (a)  Except as provided by
   29-9  Sections 171.106(c) and 171.1061, the taxable capital and taxable
  29-10  earned surplus of a banking corporation are apportioned to this
  29-11  state by multiplying the taxable capital and taxable earned
  29-12  surplus, respectively, of the banking corporation by the
  29-13  apportionment percentage.  The apportionment percentage is
  29-14  determined by adding the following three factors and dividing the
  29-15  sum by three:
  29-16              (1)  the gross receipts factor computed as prescribed
  29-17  by Section 171.1034;
  29-18              (2)  the property factor computed as prescribed by
  29-19  Section 171.1035; and
  29-20              (3)  the payroll factor computed as prescribed by
  29-21  Section 171.1036.
  29-22        (b)  If one of the factors is missing, the two remaining
  29-23  factors are added and the sum is divided by two.  If two of the
  29-24  factors are missing, the remaining factor is the apportionment
  29-25  percentage.  A factor is missing if both its numerator and
  29-26  denominator are zero, but it is not missing solely because its
  29-27  numerator is zero.
   30-1        (c)  Each factor is computed according to the method of
   30-2  accounting required to be used by the taxpayer in determining
   30-3  taxable capital or earned surplus for the period on which the tax
   30-4  is based.
   30-5        (d)  If the apportionment percentage does not fairly
   30-6  represent the extent of the taxpayer's business activity in this
   30-7  state, the taxpayer may petition for or the comptroller may
   30-8  require, in respect to all or any part of the taxpayer's business
   30-9  activity, if reasonable:
  30-10              (1)  separate accounting;
  30-11              (2)  the exclusion of any one or more of the factors;
  30-12              (3)  the inclusion of one or more additional factors
  30-13  that will fairly represent the taxpayer's business activity in this
  30-14  state; or
  30-15              (4)  the employment of any other method to effectuate
  30-16  an equitable apportionment of the taxpayer's income.
  30-17        SECTION 8.  Section 171.110, Tax Code, is amended by amending
  30-18  Subsection (a) and adding Subsection (h) to read as follows:
  30-19        (a)  The net taxable earned surplus of a corporation is
  30-20  computed by:
  30-21              (1)  determining the corporation's reportable federal
  30-22  taxable income, subtracting from that amount any amount included in
  30-23  reportable federal taxable income under Section 78 or Sections
  30-24  951-964, Internal Revenue Code, and dividends received from a
  30-25  subsidiary, associate, or affiliated corporation that does not
  30-26  transact a substantial portion of its business or regularly
  30-27  maintain a substantial portion of its assets in the United States,
   31-1  and adding to that amount any compensation of officers or
   31-2  directors, or if a bank, any compensation of directors and
   31-3  executive officers, to the extent excluded in determining federal
   31-4  taxable income to determine the corporation's taxable earned
   31-5  surplus;
   31-6              (2)  apportioning the corporation's taxable earned
   31-7  surplus to this state as provided by Section 171.106(b) or (c), as
   31-8  applicable, or if a banking corporation, as provided by Section
   31-9  171.1065, to determine the corporation's apportioned taxable earned
  31-10  surplus;
  31-11              (3)  adding the corporation's taxable earned surplus
  31-12  allocated to this state as provided by Section 171.1061; and
  31-13              (4)  subtracting from that amount any allowable
  31-14  deductions and any business loss that is carried forward to the tax
  31-15  reporting period and deductible under Subsection (e).
  31-16        (h)  Dividends and interest received from federal obligations
  31-17  are not included in earned surplus or gross receipts for purposes
  31-18  of computing net taxable earned surplus.  In this subsection:
  31-19              (1)  "Federal obligations" means:
  31-20                    (A)  stocks and other direct obligations of, and
  31-21  obligations unconditionally guaranteed by, the United States
  31-22  government and a United States government agency; and
  31-23                    (B)  direct obligations of a United States
  31-24  government-sponsored agency.
  31-25              (2)  "Obligation" means a bond, debenture, security,
  31-26  mortgage-backed security, pass-through certificate, or other
  31-27  evidence of indebtedness of the issuing entity.  The term does not
   32-1  include a:
   32-2                    (A)  deposit;
   32-3                    (B)  repurchase agreement;
   32-4                    (C)  loan;
   32-5                    (D)  lease;
   32-6                    (E)  participation in a loan or pool of loans;
   32-7                    (F)  loan collateralized by an obligation of an
   32-8  agency of the United States; or
   32-9                    (G)  loan guaranteed by an agency of the United
  32-10  States government.
  32-11              (3)  "United States government" means a department or
  32-12  ministry of the federal government, including the 12 federal
  32-13  reserve banks.  The term does not include a state or local
  32-14  government or a commercial enterprise owned in whole or in part by
  32-15  the United States government.
  32-16              (4)  "United States government agency" means an
  32-17  instrumentality of the United States government whose obligations
  32-18  are fully and explicitly guaranteed as to the timely payment of
  32-19  principal and interest by the full faith and credit of the United
  32-20  States government.  These agencies include the Government National
  32-21  Mortgage Association (GNMA), the Veterans Administration (VA), the
  32-22  Federal Housing Administration (FHA), the Farmers Home
  32-23  Administration (FmHA), the Export-Import Bank (Exim Bank), the
  32-24  Overseas Private Investment Corporation (OPIC), the Commodity
  32-25  Credit Corporation (CCC), and the Small Business Administration
  32-26  (SBA).
  32-27              (5)  "United States government-sponsored agency" means
   33-1  an agency originally established or chartered by the United States
   33-2  government to serve public purposes specified by the United States
   33-3  Congress but whose obligations are not explicitly guaranteed by the
   33-4  full faith and credit of the United States government.  These
   33-5  agencies include the Federal Home Loan Mortgage Corporation
   33-6  (FHLMC), the Federal National Mortgage Association (FNMA), the Farm
   33-7  Credit System, the Federal Home Loan Bank System, and the Student
   33-8  Loan Marketing Association (SLMA).
   33-9        SECTION 9.  Section 171.316, Tax Code, is amended to read as
  33-10  follows:
  33-11        Sec. 171.316.  BANKING CORPORATIONS.  (a)  To the extent that
  33-12  this subsection is not preempted by federal law, the Texas
  33-13  Department of Banking is required to appoint a conservator under
  33-14  Subchapter B, Chapter 6, Texas Banking Act, to pay the franchise
  33-15  tax of any banking corporation certified by the comptroller as
  33-16  being delinquent in the payment of its franchise tax.
  33-17        (b)  Except as provided by Subsection (a), this <This>
  33-18  subchapter does not apply to a banking corporation.
  33-19        SECTION 10.  This Act takes effect January 1, 1996, and
  33-20  applies to a report originally due on or after that date.
  33-21        SECTION 11.  The importance of this legislation and the
  33-22  crowded condition of the calendars in both houses create an
  33-23  emergency and an imperative public necessity that the
  33-24  constitutional rule requiring bills to be read on three several
  33-25  days in each house be suspended, and this rule is hereby suspended.