By: Montford S.B. No. 640
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the imposition, collection, and enforcement of taxes;
1-2 providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (c), Section 111.010, Tax Code, is
1-5 amended to read as follows:
1-6 (c) Venue for and jurisdiction of a suit arising under this
1-7 section is exclusively conferred upon the district courts of Travis
1-8 County.
1-9 SECTION 2. Subsection (c), Section 111.060, Tax Code, is
1-10 amended to read as follows:
1-11 (c) Subsection (b) of this section does not apply to the
1-12 taxes imposed by Chapters 152 and 211 of this code or under an
1-13 agreement made under Section 153.017 of this code.
1-14 SECTION 3. Section 111.101, Tax Code, is amended to read as
1-15 follows:
1-16 Sec. 111.101. Settlement Before Redetermination.
1-17 <(a)> After the comptroller examines a taxpayer's records and
1-18 before a petition for redetermination of the tax is filed, the
1-19 comptroller may settle a claim for a tax, penalty, or interest
1-20 imposed by this title if the cost of collection of the amount due
1-21 would exceed the amount of tax due and if the amount due is not
1-22 more than $300.
1-23 <(b) A settlement under this section is not effective unless
1-24 it is approved by the assistant comptroller for legal services.>
2-1 SECTION 4. Section 111.201, Tax Code, is amended to read as
2-2 follows:
2-3 Sec. 111.201. ASSESSMENT <AND REFUND> LIMITATION. <(a)> No
2-4 tax imposed by this title may be assessed after four years from the
2-5 date that the tax becomes due and payable.
2-6 <(b) No refund of any tax imposed by this title may be made
2-7 by the comptroller after four years after the date that the tax was
2-8 paid, except on tolling of the statute of limitations for refunds
2-9 as provided in this title.>
2-10 SECTION 5. Section 151.0036, Tax Code, is amended by adding
2-11 Subsection (c) to read as follows:
2-12 (c) "Debt collection service" includes the service performed
2-13 for which a fee is collected under Chapter 617, Acts of the 68th
2-14 Legislature, Regular Session, 1983 (Article 9022, Vernon's Texas
2-15 Civil Statutes). The person collecting the check shall add the
2-16 amount of the tax to the fee in accordance with Section 151.052 and
2-17 shall collect the fee from the drawer or endorser of the check.
2-18 SECTION 6. Section 151.0048, Tax Code, is amended to read as
2-19 follows:
2-20 Sec. 151.0048. Real Property Service. (a) Except as
2-21 provided by Subsection (b), "real <"Real> property service" means:
2-22 (1) landscaping;
2-23 (2) the care and maintenance of lawns, yards, or
2-24 ornamental trees or other plants;
2-25 (3) the removal or collection of garbage, rubbish, or
2-26 other solid waste other than:
2-27 (A) hazardous waste;
3-1 (B) industrial solid waste;
3-2 (C) waste material that results from an activity
3-3 associated with the exploration, development, or production of oil,
3-4 gas, geothermal resources, or any other substance or material
3-5 regulated by the Railroad Commission of Texas under Section 91.101,
3-6 Natural Resources Code;
3-7 (D) domestic sewage or an irrigation return
3-8 flow, to the extent the sewage or return flow does not constitute
3-9 garbage or rubbish; and
3-10 (E) industrial discharges subject to regulation
3-11 by permit issued pursuant to Chapter 26, Water Code;
3-12 (4) building or grounds cleaning, janitorial, or
3-13 custodial services;
3-14 (5) a structural pest control service covered by
3-15 Section 2, Texas Structural Pest Control Act (Article 135b-6,
3-16 Vernon's Texas Civil Statutes); or
3-17 (6) the surveying of real property.
3-18 (b) "Real property service" does not include a service
3-19 listed under Subsection (a) if the service is purchased by a
3-20 contractor as part of the improvement of real property with a new
3-21 structure to be used as a residence or other improvement
3-22 immediately adjacent to the new structure and used in the
3-23 residential occupancy of the structure.
3-24 (c) In this section, "contractor" means a person who makes
3-25 an improvement on real estate and who, as a necessary or incidental
3-26 part of the service, incorporates tangible personal property into
3-27 the property improved.
4-1 SECTION 7. Section 151.154, Tax Code, is amended to read as
4-2 follows:
4-3 Sec. 151.154. Resale Certificate: Liability of Purchaser.
4-4 (a) If a purchaser who gives a resale certificate makes any use of
4-5 the taxable item <tangible personal property> other than retention,
4-6 demonstration, or display while holding it for sale, lease, or
4-7 rental in the regular course of business or for transfer as an
4-8 integral part of a taxable service in the regular course of
4-9 business, the purchaser shall be liable for payment of the sales
4-10 tax on the <fair market rental> value of the taxable item for any
4-11 period during which the taxable item <tangible personal property>
4-12 is used other than for retention, demonstration, or display.
4-13 (b) The value of an item of tangible personal property is
4-14 the <The> fair market rental value of the tangible personal
4-15 property, which is the amount that a purchaser would pay on the
4-16 open market to rent or lease the tangible personal property for his
4-17 use. The value of a taxable service is the fair market value of
4-18 the taxable service, which is the amount that a purchaser would pay
4-19 on the open market to obtain the service for the use of the
4-20 purchaser.
4-21 (c) If an <the> item of tangible personal property has no
4-22 fair market rental value or if a taxable service has no fair market
4-23 value, the original purchase price shall be the measure of the tax.
4-24 (d) At any time, the person making the divergent use may
4-25 cease paying tax on the fair market rental value or fair market
4-26 value and may pay sales tax on the original purchase price without
4-27 credit for taxes previously paid <on the fair market rental value>.
5-1 (e) <(b)> A purchaser of a taxable item <tangible personal
5-2 property> who gives a resale certificate is not liable for the tax
5-3 imposed by this chapter if he donates the item <property> to an
5-4 organization exempted under Section 151.309 or 151.310(a)(1) or (2)
5-5 of this code; except that any use by the purchaser of the taxable
5-6 item <property> other than retention, demonstration, or display
5-7 shall be subject to taxes imposed by <Subsection (a) of> this
5-8 section.
5-9 SECTION 8. Section 151.155, Tax Code, is amended to read as
5-10 follows:
5-11 Sec. 151.155. Exemption Certificate. (a) If a purchaser
5-12 certifies in writing to a seller that a taxable item sold, leased,
5-13 or rented to the purchaser will be used in a manner or for a
5-14 purpose that qualifies the sale of the item for an exemption from
5-15 the taxes imposed by this chapter, and if the purchaser then uses
5-16 the item in some other manner or for some other purpose, the
5-17 purchaser is liable for the payment of the sales tax on the <fair
5-18 market rental> value of the taxable item for any period during
5-19 which the item is used in the divergent manner or for the divergent
5-20 purpose.
5-21 (b) The value of an item of tangible personal property is
5-22 the fair market rental value of tangible personal property, which
5-23 is the amount that a purchaser would pay on the open market to rent
5-24 or lease the property for his use. The value of a taxable service
5-25 is the fair market value of the taxable service, which is the
5-26 amount that a purchaser would pay on the open market to obtain the
5-27 service for the use of the purchaser.
6-1 (c) If an <the> item of tangible personal property has no
6-2 fair market rental value or if a taxable service has no fair market
6-3 value, the original purchase price shall be the measure of tax.
6-4 (d) At any time, the person making the divergent use may
6-5 cease paying tax on the fair market rental value or fair market
6-6 value and may pay sales tax on the original purchase price without
6-7 credit for taxes previously paid <on the fair market rental value>.
6-8 (e) <(b)> A purchaser of a taxable item <tangible personal
6-9 property> who gives an exemption certificate is not liable for the
6-10 tax imposed by this chapter if he donates the taxable item
6-11 <property> to an organization exempted under Section 151.309 or
6-12 151.310(a)(1) or (2) of this code; except that any use by the
6-13 purchaser of the taxable item <property> other than retention,
6-14 demonstration, or display shall be subject to taxes imposed by
6-15 <Subsection (a) of> this section.
6-16 SECTION 9. Subsection (f), Section 151.157, Tax Code, is
6-17 amended to read as follows:
6-18 (f) The comptroller may suspend or revoke a license issued
6-19 under this section for good cause. The comptroller may determine
6-20 the length of suspension or revocation necessary for the
6-21 enforcement of this chapter and the comptroller's rules. A
6-22 proceeding to suspend or revoke a license under this subsection is
6-23 a contested case under Chapter 2001, Government Code <the
6-24 Administrative Procedure and Texas Register Act (Article 6252-13a,
6-25 Vernon's Texas Civil Statutes)>. Judicial review is by trial de
6-26 novo. The district courts of Travis County have exclusive original
6-27 jurisdiction of a suit under this section.
7-1 SECTION 10. Subsection (a), Section 151.313, Tax Code, is
7-2 amended to read as follows:
7-3 (a) The following items are exempted from the taxes imposed
7-4 by this chapter:
7-5 (1) a drug or medicine, other than insulin, if
7-6 prescribed or dispensed for a human or animal by a licensed
7-7 practitioner of the healing arts;
7-8 (2) insulin;
7-9 (3) a hypodermic syringe or needle;
7-10 (4) a brace; hearing aid or audio loop; orthopedic,
7-11 dental, or prosthetic device; ileostomy, colostomy, or ileal
7-12 bladder appliance; or supplies or replacement parts for the listed
7-13 items;
7-14 (5) a therapeutic appliance, device, and any related
7-15 supplies specifically designed for those products, if dispensed or
7-16 prescribed by a licensed practitioner of the healing arts, when
7-17 those items are purchased and used by an individual for whom the
7-18 items listed in this subdivision were dispensed or prescribed;
7-19 (6) corrective lens and necessary and related
7-20 supplies, if dispensed or prescribed by an ophthalmologist or
7-21 optometrist;
7-22 (7) specialized printing or signalling equipment used
7-23 by the deaf for the purpose of enabling the deaf to communicate
7-24 through the use of an ordinary telephone and all materials, paper,
7-25 and printing ribbons used in that equipment;
7-26 (8) a braille wristwatch, braille writer, braille
7-27 paper and braille electronic equipment that connects to computer
8-1 equipment, and the necessary adaptive devices and adaptive computer
8-2 software; <and>
8-3 (9) each of the following items if purchased for use
8-4 by the blind to enable them to function more independently: a
8-5 slate and stylus, print enlarger, light probe, magnifier, white
8-6 cane, talking clock, large print terminal, talking terminal, or
8-7 harness for guide dog; and
8-8 (10) hospital beds.
8-9 SECTION 11. Subsection (e), Section 151.314, Tax Code, is
8-10 amended to read as follows:
8-11 (e) Food products, candy, carbonated beverages, and diluted
8-12 juices are exempted from the taxes imposed by this chapter if sold
8-13 at an exempt sale qualifying under this subsection or if stored or
8-14 used by the purchaser of the item at the exempt sale. A sale is
8-15 exempted under this subsection if:
8-16 (1) the sale is made by a person under 19 <18> years
8-17 old who is a member of a nonprofit organization devoted to the
8-18 exclusive purpose of education or religious or physical training or
8-19 by a group associated with a public or private elementary or
8-20 secondary school;
8-21 (2) the sale is made as a part of a fund-raising drive
8-22 sponsored by the organization or group; and
8-23 (3) all net proceeds from the sale go to the
8-24 organization or group for its exclusive use.
8-25 SECTION 12. Section 151.316, Tax Code, is amended by
8-26 amending Subsection (a) and by adding Subsections (c) and (d) to
8-27 read as follows:
9-1 (a) The following items are exempted from the taxes imposed
9-2 by this chapter:
9-3 (1) horses, mules, and work animals;
9-4 (2) animal life the products of which ordinarily
9-5 constitute food for human consumption;
9-6 (3) feed for farm and ranch animals;
9-7 (4) feed for animals that are held for sale in the
9-8 regular course of business;
9-9 (5) seeds and annual plants the products of which:
9-10 (A) ordinarily constitute food for human
9-11 consumption;
9-12 (B) are to be sold in the regular course of
9-13 business; or
9-14 (C) are used to produce feed for animals
9-15 exempted by this section;
9-16 (6) fertilizers, fungicides, insecticides, herbicides,
9-17 defoliants, and desiccants exclusively used or employed on a farm
9-18 or ranch in the production of:
9-19 (A) food for human consumption;
9-20 (B) feed for animal life; or
9-21 (C) other agricultural products to be sold in
9-22 the regular course of business;
9-23 (7) machinery and equipment exclusively used or
9-24 employed on a farm or ranch in the building or maintaining of roads
9-25 or water facilities or in the production of:
9-26 (A) food for human consumption;
9-27 (B) grass;
10-1 (C) feed for animal life; or
10-2 (D) other agricultural products to be sold in
10-3 the regular course of business;
10-4 (8) machinery and equipment exclusively used in the
10-5 processing, packing, or marketing of agricultural products by an
10-6 <the> original producer at a location operated by the original
10-7 producer <exclusively> for processing, packing, or marketing the
10-8 producer's own products if:
10-9 (A) 50 percent or more of the products
10-10 processed, packed, or marketed at or from the location are produced
10-11 by the original producer and not purchased or acquired from others;
10-12 and
10-13 (B) the producer does not process, pack, or
10-14 market for consideration any agricultural product that belongs to
10-15 another person; <and>
10-16 (9) ice exclusively used by commercial fishing boats
10-17 in the storing of aquatic species including but not limited to
10-18 shrimp, other crustaceans, finfish, mollusks, and other similar
10-19 creatures; and
10-20 (10) the first $50,000 of the cost of each unit of
10-21 machinery or equipment purchased to be used exclusively in site
10-22 preparation, planting, cultivation, or harvesting of timber.
10-23 (c) For purposes of this section, two or more corporations
10-24 that operate agricultural activities on the same tract or adjacent
10-25 tracts of land and that are entirely owned by an individual or a
10-26 combination of the individual, the individual's spouse, and the
10-27 individual's children may qualify as an "original producer" for the
11-1 purposes of Subsection (a)(8).
11-2 (d) For purposes of this section, "farm or ranch" includes
11-3 one or more tracts of land used, in whole or in part, in the
11-4 production of crops, livestock, or other agricultural products held
11-5 for sale in the regular course of business. This includes
11-6 feedlots, dairy farms, commercial orchards, commercial nurseries,
11-7 and similar commercial agricultural operations. "Farm or ranch"
11-8 does not include a home garden or a timber operation.
11-9 SECTION 13. Subsection (c), Section 151.317, Tax Code, is
11-10 amended to read as follows:
11-11 (c) In this section:
11-12 (1) "Residential use" means use:
11-13 (A) in a family dwelling or in a multifamily
11-14 apartment or housing complex or building or in a part of a building
11-15 occupied as a home or residence when the use is by the owner of the
11-16 dwelling, apartment, complex, or building or part of the building
11-17 occupied; or
11-18 (B) in a dwelling, apartment, house, or building
11-19 or part of a building occupied as a home or residence when the use
11-20 is by a tenant who occupies the dwelling, apartment, house, or
11-21 building or part of a building under a contract for an express
11-22 initial term for longer than 29 consecutive days.
11-23 (2) "Commercial use" means use by a person engaged in
11-24 selling, warehousing, or distributing a commodity or a professional
11-25 or personal service, but does not include:
11-26 (A) use by a person engaged in:
11-27 (i) processing tangible personal property
12-1 for sale as tangible personal property, other than preparation or
12-2 storage of food for immediate consumption;
12-3 (ii) exploring for, <or> producing, or
12-4 <and> transporting, a material extracted from the earth;
12-5 (iii) agriculture, including dairy or
12-6 poultry operations and pumping for farm or ranch irrigation; <or>
12-7 (iv) electrical processes such as
12-8 electroplating, electrolysis, and cathodic protection; or
12-9 (v) the off-wing processing, overhaul, or
12-10 repair of a jet turbine engine or its parts for a certificated or
12-11 licensed carrier of persons or property; or
12-12 (B) a direct or indirect use, consumption, or
12-13 loss of electricity by an electric utility engaged in the purchase
12-14 of electricity for resale.
12-15 SECTION 14. Section 151.318, Tax Code, is amended by
12-16 amending Subsections (b), (e), (m), and (n) and by adding
12-17 Subsection (q) to read as follows:
12-18 (b) The exemption includes:
12-19 (1) chemicals, catalysts, and other materials that are
12-20 used during a manufacturing, processing, or fabrication operation
12-21 to produce or induce a chemical or physical change, to remove
12-22 impurities, or to make the product more marketable; and
12-23 (2) semiconductor fabrication cleanrooms and
12-24 equipment.
12-25 (e) This section does not apply to any taxable item rented
12-26 or leased for less than one year to a person engaged in
12-27 manufacturing.
13-1 (m) The refund of a portion of the taxes imposed by this
13-2 chapter provided by Subsection (h)(1) and Subsection (n) for
13-3 property purchased during 1990 or 1991 and the reduction in the
13-4 amount of the tax imposed by this chapter provided by Subsections
13-5 (h)(2), (3), <and> (4), and (5) and Subsection (n) for property
13-6 purchased during 1992, 1993, or 1994 do not affect the application
13-7 of <a> sales and use taxes <tax> imposed on the property by a
13-8 political subdivision of this state under Chapter 321, 322, or 323,
13-9 or under any other law.
13-10 (n) A person engaged in overhauling, retrofitting, or
13-11 repairing jet turbine aircraft engines and their component parts is
13-12 entitled to a refund or a reduction in the amount of tax imposed by
13-13 this chapter for the purchase of machinery, equipment, <or>
13-14 replacement parts or accessories with a useful life in excess of
13-15 six months, or supplies, including aluminum oxide, nitric acid, and
13-16 sodium cyanide, used in electrochemical plating or a similar
13-17 process that are used or consumed in the overhauling, retrofitting,
13-18 or repairing. The amount of the refund or reduced amount of tax
13-19 due is the same as provided by Subsection (h) for property covered
13-20 by Subsection (g).
13-21 (q) For purposes of Subsection (b), "semiconductor
13-22 fabrication cleanrooms and equipment" means all tangible personal
13-23 property, without regard to whether the property is affixed to or
13-24 incorporated into realty, used in connection with the
13-25 manufacturing, processing, or fabrication in a cleanroom
13-26 environment of a semiconductor product, without regard to whether
13-27 the property is actually contained in the cleanroom environment.
14-1 The term includes integrated systems, fixtures, and piping, all
14-2 property necessary or adapted to reduce contamination or to control
14-3 airflow, temperature, humidity, chemical purity, or other
14-4 environmental conditions or manufacturing tolerances, and
14-5 production equipment and machinery. The term does not include the
14-6 building or a permanent, nonremovable component of the building,
14-7 that houses the cleanroom environment. The term includes moveable
14-8 cleanroom partitions and cleanroom lighting. "Semiconductor
14-9 fabrication cleanrooms and equipment" are not "intraplant
14-10 transportation equipment" or "used incidentally in a manufacturing,
14-11 processing, or fabrication operation" as those terms are used in
14-12 Subsection (c)(2).
14-13 SECTION 15. Subsection (e), Section 151.319, Tax Code, is
14-14 amended to read as follows:
14-15 (e) The following items are not exempted by Subsection (d)
14-16 of this section:
14-17 (1) machinery or equipment or their accessories or
14-18 replacement parts having a useful life when new in excess of six
14-19 months;
14-20 (2) intraplant transportation equipment, maintenance
14-21 or janitorial supplies or equipment, or other machinery, equipment,
14-22 materials, or supplies that are used incidentally to printing or
14-23 processing;
14-24 (3) hand tools; or
14-25 (4) office equipment or supplies; equipment or
14-26 supplies used in sales, distribution, or transportation activities,
14-27 or in gathering information; or other tangible personal property
15-1 used by a newspaper printer in an activity other than the actual
15-2 printing and processing operation<; or>
15-3 <(5) internal or external wrapping, packing, and
15-4 packaging supplies, as defined by Section 151.302(d), purchased for
15-5 a person's own use, stored for use, or used in wrapping, packing,
15-6 or packaging tangible personal property>.
15-7 SECTION 16. Section 151.350, Tax Code, is amended to read as
15-8 follows:
15-9 Sec. 151.350. LABOR TO RESTORE <REPAIR> CERTAIN PROPERTY.
15-10 (a) Labor to restore <repair> real or tangible personal property
15-11 is exempted from the taxes imposed by this chapter if:
15-12 (1) the amount of the charge for labor is separately
15-13 itemized; and
15-14 (2) the restoration is performed on <repair is to>
15-15 property damaged within a disaster area by the condition that
15-16 caused the area to be declared a disaster area.
15-17 (b) The exemption under this section does not apply to
15-18 tangible personal property transferred by the service provider to
15-19 the purchaser as part of the service <repair>.
15-20 (c) In this section, "disaster area" means:
15-21 (1) an area declared a disaster area by the governor
15-22 under Chapter 418, Government Code; or
15-23 (2) an area declared a disaster area by the president
15-24 of the United States under 42 U.S.C. Section 5141.
15-25 (d) In this section, "restore" means:
15-26 (1) launder or clean, to the extent the service is a
15-27 personal service as defined in Section 151.0045; and
16-1 (2) repair, restore, or remodel, to the extent the
16-2 service is:
16-3 (A) a real property repair or remodeling service
16-4 as defined in Section 151.0047; or
16-5 (B) defined as a taxable service in Section
16-6 151.0101(5).
16-7 SECTION 17. Section 151.509, Tax Code, is amended to read as
16-8 follows:
16-9 Sec. 151.509. Petition for Redetermination. <(b)> A person
16-10 petitioning for a redetermination of a determination made under
16-11 Section 111.022 <151.506 of this code> must file, before the
16-12 determination becomes final, security as the comptroller requires
16-13 to ensure compliance with this chapter. The security may be sold
16-14 by the comptroller in the manner provided by Subchapter A, Chapter
16-15 111 <Section 151.611 of this code>.
16-16 SECTION 18. Subsection (g), Section 151.712, Tax Code, is
16-17 amended to read as follows:
16-18 (g) A proceeding to impose a civil penalty or suspend or
16-19 revoke a license because of a violation of this section is a
16-20 contested case under Chapter 2001, Government Code <the
16-21 Administrative Procedure and Texas Register Act (Article 6252-13a,
16-22 Vernon's Texas Civil Statutes)>. Judicial review is by trial de
16-23 novo. The district courts of Travis County have exclusive original
16-24 jurisdiction of a suit under this section.
16-25 SECTION 19. Subsections (b) and (d), Section 153.002, Tax
16-26 Code, are amended to read as follows:
16-27 (b) A lessor who is engaged regularly in the business of
17-1 leasing for compensation motor vehicles and equipment he owns to
17-2 carriers or other lessees for interstate operation may be deemed to
17-3 be the user or interstate trucker when he supplies or pays for the
17-4 motor fuel consumed in those vehicles, and the lessor may be issued
17-5 a permit as an interstate trucker when an application has <and bond
17-6 have> been properly filed with and approved by the comptroller.
17-7 (d) A lessor described in Subsection (b) of this section may
17-8 <must> file with his application for an interstate trucker permit
17-9 one copy of the form-lease or service contract he enters into with
17-10 the various lessees of his motor vehicles. When the interstate
17-11 trucker permit has been secured, the lessor may <shall> make and
17-12 assign to each motor vehicle he leases for interstate operation a
17-13 photocopy of the permit to be carried in the cab compartment of the
17-14 motor vehicle. The photocopy of the permit must have typed or
17-15 printed on the back the unit or motor number of the motor vehicle
17-16 to which it is assigned and the name of the lessee. The lessor is
17-17 responsible for the proper use of the photocopy of the permit
17-18 issued and for its return to him with the motor vehicle to which it
17-19 is assigned.
17-20 SECTION 20. Section 153.017, Tax Code, is amended by
17-21 amending Subsections (b) and (f) and by adding Subsections (g) and
17-22 (h) to read as follows:
17-23 (b) An agreement may provide for:
17-24 (1) determining the base state for motor fuel users;
17-25 (2) <,> user records requirements;
17-26 (3) <,> audit procedures;
17-27 (4) <,> exchange of information;
18-1 (5) <,> persons eligible for tax licensing;
18-2 (6) licensing and license revocation procedures,
18-3 permits, penalties, and fees;
18-4 (7) <,> defining qualified motor vehicles;
18-5 (8) <,> determining <if> bonding procedures, types,
18-6 and amounts;
18-7 (9) <is required,> specifying reporting requirements
18-8 and periods;
18-9 (10) defining refund procedures and limitations,
18-10 including the payment of interest;
18-11 (11) <, including> defining uniform penalties, fees,
18-12 <penalty> and interest rates;
18-13 (12) <for late reporting,> determining methods for
18-14 collecting and forwarding of motor fuel taxes, <and> penalties, and
18-15 interest due to another jurisdiction;
18-16 (13) the temporary remittal of funds equal to the
18-17 amount of the taxes, penalties, and interest due to another
18-18 jurisdiction but not otherwise collected, subject to appropriation
18-19 of funds for that purpose; and
18-20 (14) <, and> other provisions to facilitate the
18-21 administration of the agreement.
18-22 (f) An agreement entered into under this section prevails
18-23 over an inconsistent rule of the comptroller. Except as otherwise
18-24 provided by this section, a <A> statute of this state prevails over
18-25 an inconsistent provision of an agreement entered into under this
18-26 section.
18-27 (g) The comptroller may segregate in a separate fund or
19-1 account the amount of motor fuel taxes estimated to be due to other
19-2 jurisdictions or otherwise subject to refund during the fiscal
19-3 year, penalties and interest on those taxes due other
19-4 jurisdictions, licensing fees, and other costs collected under the
19-5 agreement. On a determination of an amount held that is due to be
19-6 remitted to another jurisdiction, the comptroller may issue a
19-7 warrant or make an electronic transfer of the amount as necessary
19-8 to carry out the purposes of the agreement. An auditing cost,
19-9 membership fee, and other cost associated with the agreement may be
19-10 paid from interest earned on funds segregated under this
19-11 subsection. Any interest earnings in excess of the costs
19-12 associated with the agreement shall be credited to general revenue.
19-13 (h) The legislature finds that it is in the public interest
19-14 to enter into motor fuel tax agreements with other jurisdictions
19-15 that may provide for the temporary remittal of amounts due other
19-16 jurisdictions that exceed the amounts collected. The comptroller
19-17 shall ensure that reasonable measures are developed to recover
19-18 motor fuel taxes and other amounts due this state during each
19-19 biennium.
19-20 SECTION 21. Subsection (e), Section 153.116, Tax Code, is
19-21 amended to read as follows:
19-22 (e) In lieu of filing a surety bond, an applicant for a
19-23 permit may substitute the following security:
19-24 (1) cash in the form of U.S. currency in an amount
19-25 equal to the required bond to be deposited in the suspense account
19-26 of the state treasury;
19-27 (2) an assignment to the comptroller of a certificate
20-1 of deposit in any bank or savings and loan association in Texas
20-2 that is a member of the FDIC <or the FSLIC> in an amount at least
20-3 equal to the bond amount required; or
20-4 (3) an irrevocable letter of credit to the comptroller
20-5 from any bank or savings and loan association in Texas that is a
20-6 member of the FDIC <or FSLIC> in an amount of credit at least equal
20-7 to the bond amount required.
20-8 SECTION 22. Section 153.205, Tax Code, is amended by adding
20-9 Subsection (i) to read as follows:
20-10 (i) A permitted supplier may not make a tax-free sale to a
20-11 purchaser using a signed statement:
20-12 (1) for the sale of more than 3,000 gallons of diesel
20-13 fuel in a single transaction; or
20-14 (2) in a calendar month in which the supplier has
20-15 previously sold more than 10,000 gallons of diesel fuel to the
20-16 purchaser.
20-17 SECTION 23. Subsection (f), Section 153.206, Tax Code, is
20-18 amended to read as follows:
20-19 (f) If diesel fuel is purchased, in a single delivery of
20-20 5,000 gallons or more, or in lesser quantities where required by
20-21 city ordinance, by any person for the purpose of resale, the
20-22 seller, distributor, or broker shall sell the product to the
20-23 retailer or any other person purchasing the product on the basis of
20-24 temperature-corrected gallonage to 60 degrees Fahrenheit and the
20-25 tax shall be computed and paid over to the state on the
20-26 temperature-corrected basis. All other sales shall be reported to
20-27 the comptroller on the basis of gross or volumetric gallons of
21-1 taxable diesel fuel <gasoline> sold.
21-2 SECTION 24. Subsection (e), Section 153.218, Tax Code, is
21-3 amended to read as follows:
21-4 (e) In lieu of filing a surety bond, an applicant for a
21-5 permit may substitute the following security:
21-6 (1) cash in the form of U.S. currency in an amount
21-7 equal to the required bond to be deposited in the suspense account
21-8 of the state treasury;
21-9 (2) an assignment to the comptroller of a certificate
21-10 of deposit in any bank or savings and loan association in the state
21-11 that is a member of the FDIC <or the FSLIC> in an amount at least
21-12 equal to the bond amount required; or
21-13 (3) an irrevocable letter of credit to the comptroller
21-14 from any bank or savings and loan association in Texas that is a
21-15 member of the FDIC <or FSLIC> in an amount of credit at least equal
21-16 to the bond amount required.
21-17 SECTION 25. Subsection (a), Section 153.220, Tax Code, is
21-18 amended to read as follows:
21-19 (a) A delivery of diesel fuel into the fuel supply tanks of
21-20 a motor vehicle operated for commercial purposes and described by
21-21 Section 153.001(12) <having an aggregate capacity of 60 or more
21-22 gallons> shall be evidenced by an invoice issued in duplicate by a
21-23 dealer or an invoice or a distribution log issued by a bonded user
21-24 or other user.
21-25 SECTION 26. Section 153.304, Tax Code, is amended to read as
21-26 follows:
21-27 Sec. 153.304. Dealer's Permit. A dealer's permit authorizes
22-1 a dealer to collect and remit taxes on liquefied gas delivered into
22-2 the fuel supply tanks of motor vehicles displaying an out-of-state
22-3 license plate, the motor vehicle of an interstate trucker licensed
22-4 under an agreement entered into under Section 153.017, or a motor
22-5 vehicle displaying a motor vehicle dealer's liquefied gas tax
22-6 decal.
22-7 SECTION 27. Section 153.305, Tax Code, is amended by adding
22-8 Subsection (e) to read as follows:
22-9 (e) An interstate trucker is not required to prepay the tax
22-10 under Subsection (a) for a motor vehicle operated for commercial
22-11 purposes and described by Section 153.001(12).
22-12 SECTION 28. Section 153.306, Tax Code, is amended to read as
22-13 follows:
22-14 Sec. 153.306. Interstate Trucker's Permit. An interstate
22-15 trucker's permit authorizes a person who imports <an interstate
22-16 trucker operating a motor vehicle with a base license plate issued
22-17 by a state other than Texas to import> liquefied gas into this
22-18 state in the fuel supply tanks of a motor vehicle <vehicles> owned
22-19 or operated <by him> for commercial purposes and described by
22-20 Section 153.001(12), to report and pay the tax due, and to make
22-21 sales or distributions in Texas from the vehicle's <his> cargo
22-22 tanks, but no delivery may be made in Texas into the fuel supply
22-23 tanks of motor vehicles not bearing a current liquefied gas tax
22-24 decal without first obtaining the required dealer's permit to make
22-25 taxable sales. <The interstate trucker's permit for users
22-26 operating a motor vehicle with a base license plate issued by a
22-27 state other than Texas is in lieu of the liquefied gas tax decal
23-1 permit required to operate motor vehicles on the highways of the
23-2 state.>
23-3 SECTION 29. Section 153.402, Tax Code, is amended to read as
23-4 follows:
23-5 Sec. 153.402. Prohibited Acts; Civil Penalties. A person
23-6 forfeits to the state a civil penalty of not less than $25 nor more
23-7 than $200 if the person:
23-8 (1) refuses to stop and permit the inspection and
23-9 examination of a motor vehicle transporting or using motor fuel on
23-10 demand of a peace officer or the comptroller;
23-11 (2) operates a motor vehicle in this state without a
23-12 valid interstate trucker's or a trip permit when the person is
23-13 required to hold one of those permits;
23-14 (3) operates a liquefied gas-propelled motor vehicle
23-15 that is required to be licensed in Texas, including motor vehicles
23-16 equipped with dual carburetion, and does not display a current
23-17 liquefied gas tax decal or multistate fuels tax agreement decal;
23-18 (4) makes a tax-free sale or delivery of liquefied gas
23-19 into the fuel supply tank of a motor vehicle that does not display
23-20 a current Texas liquefied gas tax decal;
23-21 (5) makes a taxable sale or delivery of liquefied gas
23-22 without holding a valid dealer's permit;
23-23 (6) makes a tax-free sale or delivery of liquefied gas
23-24 into the fuel supply tank of a motor vehicle bearing out-of-state
23-25 license plates;
23-26 (7) makes a <tax-free or taxable sale or> delivery of
23-27 liquefied gas into the fuel supply tank of a motor vehicle bearing
24-1 Texas license plates and no Texas liquefied gas tax decal, unless
24-2 licensed under a multistate fuels tax agreement;
24-3 (8) transports gasoline or diesel fuel in any cargo
24-4 tank that has a connection by pipe, tube, valve, or otherwise with
24-5 the fuel injector or carburetor or with the fuel supply tank
24-6 feeding the fuel injector or carburetor of the motor vehicle
24-7 transporting the product;
24-8 (9) sells or delivers gasoline or diesel fuel from any
24-9 fuel supply tank connected with the fuel injector or carburetor of
24-10 a motor vehicle;
24-11 (10) owns or operates a motor vehicle for which
24-12 reports or mileage records are required by this chapter without an
24-13 operating odometer or other device in good working condition to
24-14 record accurately the miles traveled;
24-15 (11) furnishes a signed statement to a supplier for
24-16 purchasing diesel fuel tax free when he owns, operates, or acquires
24-17 a diesel-powered motor vehicle;
24-18 (12) fails or refuses to comply with or violates a
24-19 provision of this chapter; or
24-20 (13) fails or refuses to comply with or violates a
24-21 comptroller's rule for administering or enforcing this chapter.
24-22 SECTION 30. Section 153.403, Tax Code, is amended to read as
24-23 follows:
24-24 Sec. 153.403. Criminal Offenses. Except as provided by
24-25 Section 153.404 of this code, a person commits an offense if the
24-26 person:
24-27 (1) refuses to stop and permit the inspection and
25-1 examination of a motor vehicle transporting or using motor fuel on
25-2 the demand of a peace officer or the comptroller;
25-3 (2) is required to hold a valid trip permit or
25-4 interstate trucker's permit, but operates a motor vehicle in this
25-5 state without a valid trip permit or interstate trucker's permit;
25-6 (3) operates a liquefied gas-propelled motor vehicle
25-7 that is required to be licensed in Texas, including a motor vehicle
25-8 equipped with dual carburetion, and does not display a current
25-9 liquefied gas tax decal or multistate fuels tax agreement decal;
25-10 (4) transports gasoline or diesel fuel in any cargo
25-11 tank that has a connection by pipe, tube, valve, or otherwise with
25-12 the fuel injector or carburetor or with the fuel supply tank
25-13 feeding the fuel injector or carburetor of the motor vehicle
25-14 transporting the product;
25-15 (5) sells or delivers gasoline or diesel fuel from a
25-16 fuel supply tank that is connected with the fuel injector or
25-17 carburetor of a motor vehicle;
25-18 (6) owns or operates a motor vehicle for which reports
25-19 or mileage records are required by this chapter without an
25-20 operating odometer or other device in good working condition to
25-21 record accurately the miles traveled;
25-22 (7) as a diesel tax prepaid user fails to prepay the
25-23 tax on every diesel-powered motor vehicle owned or operated by him;
25-24 (8) makes a tax-free sale or delivery of liquefied gas
25-25 into the fuel supply tank of a motor vehicle that does not display
25-26 a current Texas liquefied gas tax decal;
25-27 (9) makes a sale or delivery of liquefied gas on which
26-1 the person knows the tax is required to be collected, if at the
26-2 time the sale is made the person does not hold a valid dealer's
26-3 permit;
26-4 (10) makes a tax-free sale or delivery of liquefied
26-5 gas into the fuel supply tank of a motor vehicle bearing
26-6 out-of-state license plates;
26-7 (11) makes a <tax-free or taxable sale or> delivery of
26-8 liquefied gas into the fuel supply tank of a motor vehicle bearing
26-9 Texas license plates and no Texas liquefied gas tax decal, unless
26-10 licensed under a multistate fuels tax agreement;
26-11 (12) refuses to permit the comptroller or the attorney
26-12 general to inspect, examine, or audit a book or record required to
26-13 be kept by a distributor, supplier, user, dealer, interstate
26-14 trucker, aviation fuel dealer, jobber, common or contract carrier,
26-15 or any person required to hold a permit under this chapter;
26-16 (13) refuses to permit the comptroller or the attorney
26-17 general to inspect or examine any plant, equipment, materials, or
26-18 premises where motor fuel is produced, processed, stored, sold,
26-19 delivered, or used;
26-20 (14) refuses to permit the comptroller or the attorney
26-21 general to measure or gauge the contents of or take samples from a
26-22 storage tank or container on premises where motor fuel is produced,
26-23 processed, stored, sold, delivered, or used;
26-24 (15) is a distributor, bonded user, interstate
26-25 trucker, or supplier and fails or refuses to make or deliver to the
26-26 comptroller a report required by this chapter to be made and
26-27 delivered to the comptroller;
27-1 (16) conceals motor fuel with the intent of engaging
27-2 in any conduct proscribed by this chapter or refuses to make sales
27-3 of motor fuel on the volume-corrected basis prescribed by this
27-4 chapter;
27-5 (17) refuses, while transporting motor fuel, to stop
27-6 the motor vehicle he is operating when called on to do so by a
27-7 person authorized to stop the motor vehicle;
27-8 (18) refuses to surrender a motor vehicle and cargo
27-9 for impoundment after being ordered to do so by a person authorized
27-10 to impound the motor vehicle and cargo;
27-11 (19) transports motor fuel for which a cargo manifest
27-12 is required to be carried without possessing or exhibiting on
27-13 demand by an officer authorized to make the demand a cargo manifest
27-14 containing the information required to be shown on the manifest;
27-15 (20) mutilates, destroys, or secretes a book or record
27-16 required by this chapter to be kept by a distributor, supplier,
27-17 user, dealer, interstate trucker, aviation fuel dealer, jobber, or
27-18 person required to hold a permit under this chapter;
27-19 (21) is a distributor, supplier, user, dealer,
27-20 interstate trucker, aviation fuel dealer, jobber, or other person
27-21 required to hold a permit under this chapter, or the agent or
27-22 employee of one of those persons and makes a false entry or fails
27-23 to make an entry in the books and records required under this
27-24 chapter to be made by the person;
27-25 (22) transports in any manner motor fuel under a false
27-26 cargo manifest;
27-27 (23) engages in a motor fuel transaction that requires
28-1 that the person have a permit under this chapter without then and
28-2 there holding the required permit;
28-3 (24) makes and delivers to the comptroller a report
28-4 required under this chapter to be made and delivered to the
28-5 comptroller, if the report contains false information;
28-6 (25) forges, falsifies, or alters an invoice
28-7 prescribed by law;
28-8 (26) makes any statement, knowing said statement to be
28-9 false, in a claim for a tax refund filed with the comptroller;
28-10 (27) furnishes to a supplier a signed statement for
28-11 purchasing diesel fuel tax free when he owns, operates, or acquires
28-12 a diesel-powered motor vehicle;
28-13 (28) holds an aviation fuel dealer's permit and makes
28-14 a taxable sale or use of any gasoline or diesel fuel;
28-15 (29) fails to remit any tax funds collected by a
28-16 distributor, supplier, user, dealer, interstate trucker, jobber, or
28-17 any other person required to hold a permit under this chapter;
28-18 (30) makes a sale of diesel fuel tax free into a
28-19 storage facility of a person who:
28-20 (A) is not permitted as a supplier, as an
28-21 aviation fuel dealer, as a bonded user, or as a diesel tax prepaid
28-22 user of diesel fuel; or
28-23 (B) does not furnish to the permitted supplier a
28-24 signed statement prescribed in Section 153.205 of this code;
28-25 (31) makes a sale of gasoline tax free to any person
28-26 who is not permitted as either a distributor or an aviation fuel
28-27 dealer;
29-1 (32) is a dealer who purchases any motor fuel tax free
29-2 when not authorized to make a tax-free purchase under this chapter;
29-3 or
29-4 (33) is a dealer who purchases motor fuel with the
29-5 intent to evade any tax imposed by this chapter.
29-6 SECTION 31. Subsection (d), Section 154.042, Tax Code, is
29-7 amended to read as follows:
29-8 (d) A plan for achieving compliance that is submitted to the
29-9 treasurer under Subsection (c) is confidential and not subject to
29-10 the open records law, Chapter 552, Government Code <424, Acts of
29-11 the 63rd Legislature, Regular Session, 1973 (Article 6252-17a,
29-12 Vernon's Texas Civil Statutes)>.
29-13 SECTION 32. Subsection (m), Section 154.051, Tax Code, is
29-14 amended to read as follows:
29-15 (m) Information provided under Subsection (f) is
29-16 confidential and not subject to the open records law, Chapter 552,
29-17 Government Code <424, Acts of the 63rd Legislature, Regular
29-18 Session, 1973 (Article 6252-17a, Vernon's Texas Civil Statutes)>.
29-19 SECTION 33. Subsection (g), Section 154.101, Tax Code, is
29-20 amended to read as follows:
29-21 (g) All financial information provided under this section is
29-22 confidential and not subject to the open records law, Chapter 552,
29-23 Government Code <424, Acts of the 63rd Legislature, Regular
29-24 Session, 1973 (Article 6252-17a, Vernon's Texas Civil Statutes)>.
29-25 SECTION 34. Section 154.114, Tax Code, is amended to read as
29-26 follows:
29-27 Sec. 154.114. FINAL Suspension or Revocation of a Permit.
30-1 (a) The treasurer may suspend or revoke a person's <distributor's,
30-2 wholesaler's, bonded agent's, or retailer's> permit if the
30-3 treasurer finds, after notice and hearing as provided by this
30-4 section, that the permit holder violated this chapter or an
30-5 administrative rule made under this chapter.
30-6 (b) If the treasurer intends to suspend or revoke a permit,
30-7 the treasurer shall provide the permit holder with written notice
30-8 that includes a statement:
30-9 (1) of the reason for the intended revocation or
30-10 suspension;
30-11 (2) that the permit holder is entitled to a hearing by
30-12 the treasurer on the proposed suspension or revocation of the
30-13 permit; and
30-14 (3) of the date, time, and place of the hearing.
30-15 (c) The treasurer shall mail the written notice by certified
30-16 mail, return receipt requested, to the permit holder's mailing
30-17 address as it appears on the treasurer's records <place designated
30-18 on the application for a permit as the place of business>. Service
30-19 by mail is complete when the notice is received, as evidenced by
30-20 return receipt from the U. S. Postal Service.
30-21 (d) The treasurer shall give the permit holder not less than
30-22 10 days' notice of a final <may not schedule the> hearing <before
30-23 the 10th working day after the date the permit holder received the
30-24 notice>.
30-25 (e) A permit holder may appeal the decision of the treasurer
30-26 to a district court in Travis County not later than the 30th day
30-27 after the date the treasurer's decision becomes final.
31-1 (f) A person whose permit is suspended or revoked may not
31-2 sell, offer for sale, or distribute cigarettes from the place of
31-3 business to which the permit applied until a new permit is granted
31-4 or the suspension is removed.
31-5 (g) If the treasurer suspends or revokes a permit, the
31-6 treasurer shall provide written notice of the suspension or
31-7 revocation, within a reasonable time, to each permit holder in the
31-8 state. A permit holder violates Section 154.1015(a) by selling or
31-9 distributing cigarettes to a person whose permit has been suspended
31-10 or revoked only after the permit holder receives written notice of
31-11 the suspension or revocation from the treasurer.
31-12 SECTION 35. Subchapter D, Chapter 154, Tax Code, is amended
31-13 by adding Section 154.1141 to read as follows:
31-14 Sec. 154.1141. Summary Suspension of a Permit. (a) The
31-15 treasurer may suspend a person's permit without notice or a hearing
31-16 for the person's failure to comply with this chapter or a rule
31-17 adopted under this chapter if the person's continued operation
31-18 constitutes an immediate and substantial threat to the collection
31-19 of taxes imposed by this chapter and attributable to the person's
31-20 operation.
31-21 (b) If the treasurer summarily suspends a person's permit,
31-22 proceedings for a preliminary hearing before the treasurer or the
31-23 treasurer's representative must be initiated simultaneously with
31-24 the summary suspension. The preliminary hearing shall be set for a
31-25 date not later than 10 days after the date of the summary
31-26 suspension, unless the parties agree to a later date.
31-27 (c) At the preliminary hearing, the permit holder must show
32-1 cause why the permit should not remain suspended pending a final
32-2 hearing on suspension or revocation.
32-3 (d) Chapter 2001, Government Code, does not apply to a
32-4 summary suspension under this section.
32-5 (e) To initiate a proceeding to suspend summarily a person's
32-6 permit, the treasurer shall serve notice on the permit holder
32-7 informing the permit holder of the right to a preliminary hearing
32-8 before the treasurer or the treasurer's representative and of the
32-9 time and place of the preliminary hearing. The notice must be
32-10 personally served on the permit holder or an officer, employee, or
32-11 agent of the permit holder or sent by certified or registered mail,
32-12 return receipt requested, to the permit holder's mailing address as
32-13 it appears in the treasurer's records. The notice must state the
32-14 alleged violations that constitute the grounds for summary
32-15 suspension. The suspension is effective at the time the notice is
32-16 served. If the notice is served in person, the permit holder shall
32-17 immediately surrender the permit to the treasurer or the
32-18 treasurer's representative. If notice is served by mail, the
32-19 permit holder shall immediately return the permit to the treasurer.
32-20 (f) Section 154.114, governing hearings for final suspension
32-21 or revocation of a permit under this chapter, governs a final
32-22 administrative hearing under this section.
32-23 SECTION 36. Section 154.1145, Tax Code, is amended to read
32-24 as follows:
32-25 Sec. 154.1145. Hearings. Unless otherwise provided by this
32-26 chapter, the <The> treasurer shall conduct all hearings required by
32-27 this chapter in accordance with Chapter 2001, Government Code <the
33-1 Administrative Procedure and Texas Register Act (Article 6252-13a,
33-2 Vernon's Texas Civil Statutes)>. The treasurer may designate one
33-3 or more representatives to conduct the hearings and may prescribe
33-4 the rules of procedure governing the hearings.
33-5 SECTION 37. Section 154.201, Tax Code, is amended to read as
33-6 follows:
33-7 Sec. 154.201. Record of Purchase or Receipt. Each
33-8 distributor, wholesaler, <and> bonded agent, and export warehouse
33-9 shall keep records at each place of business of all cigarettes
33-10 purchased or <and> received, including records of those cigarettes
33-11 for which no tax is due under federal law. Each retailer shall
33-12 keep records at a single location, which the retailer shall
33-13 designate as its principal place of business in this state, of all
33-14 cigarettes purchased and received. These records must include:
33-15 (1) the name and address of the shipper or carrier and
33-16 the mode of transportation;
33-17 (2) all shipping records or copies of records,
33-18 including invoices, bills of lading, waybills, freight bills, and
33-19 express receipts;
33-20 (3) the date and the name of the place of origin of
33-21 the cigarette shipment;
33-22 (4) the date and the name of the place of arrival of
33-23 the cigarette shipment;
33-24 (5) a statement of the number, kind, and price paid
33-25 for cigarettes, including cigarettes in stamped and unstamped
33-26 packages;
33-27 (6) the name, address, permit number, and tax
34-1 identification number of the seller; and
34-2 (7) any other information required by rules of the
34-3 treasurer.
34-4 SECTION 38. Section 154.301, Tax Code, is amended to read as
34-5 follows:
34-6 Sec. 154.301. COMPLIANCE INVESTIGATION AND RECOVERY OF
34-7 <AUDIT> COSTS. (a) If the treasurer has reason to believe that a
34-8 person has failed to pay a tax or penalty in the proper manner when
34-9 due, as required by this chapter, or otherwise failed to comply
34-10 with this chapter, the treasurer may employ auditors and
34-11 investigators to determine compliance and any <the> amount due. If
34-12 the treasurer determines that the person has not paid the tax or
34-13 penalty or has failed to comply with this chapter, the treasurer
34-14 may require the person to <shall> pay the reasonable expenses
34-15 incurred for the compliance investigation and audit as an
34-16 additional penalty.
34-17 (b) The treasurer shall deposit funds paid under this
34-18 section to the credit of the general revenue <a special> fund in
34-19 the treasury to be used for making audits, conducting
34-20 investigations, or as otherwise appropriated. The treasurer may
34-21 use other funds available for audits as appropriated by the
34-22 legislature <when the special fund is exhausted>.
34-23 SECTION 39. Subsection (a), Section 154.304, Tax Code, is
34-24 amended to read as follows:
34-25 (a) To determine the tax liability of a person dealing in
34-26 cigarettes or compliance by the person with this chapter, the
34-27 treasurer may:
35-1 (1) inspect any premises, including a vending machine
35-2 and its contents, where cigarettes are manufactured, produced,
35-3 stored, transported, sold, or offered for sale or exchange;
35-4 (2) remain on the premises as long as necessary to
35-5 determine the tax liability or compliance with this chapter;
35-6 (3) examine the records required by this chapter or
35-7 other records, books, documents, papers, accounts, and objects that
35-8 the treasurer determines are necessary for conducting a complete
35-9 examination; and
35-10 (4) examine stocks of cigarettes and cigarette stamps.
35-11 SECTION 40. Section 154.308, Tax Code, is amended to read as
35-12 follows:
35-13 Sec. 154.308. DEFICIENCY DETERMINATION, PENALTIES, AND
35-14 INTEREST. (a) If the treasurer has reasonable cause to believe
35-15 that a tax report or the amount of tax paid is inaccurate, the
35-16 treasurer may compute and determine the amount of tax, penalty, and
35-17 interest to be paid from information contained in the report or
35-18 from any other information available to the treasurer.
35-19 (b) On making a deficiency determination, the treasurer
35-20 shall notify the person by certified mail, return receipt
35-21 requested. Service by mail is complete when the notice is
35-22 received, as evidenced by return receipt from the U.S. Postal
35-23 Service.
35-24 SECTION 41. Subsection (g), Section 155.041, Tax Code, is
35-25 amended to read as follows:
35-26 (g) All financial information provided under this section is
35-27 confidential and not subject to the open records law, Chapter 552,
36-1 Government Code <424, Acts of the 63rd Legislature, Regular
36-2 Session, 1973 (Article 6252-17a, Vernon's Texas Civil Statutes)>.
36-3 SECTION 42. Section 155.059, Tax Code, is amended to read as
36-4 follows:
36-5 Sec. 155.059. FINAL SUSPENSION OR REVOCATION OF PERMIT.
36-6 (a) The treasurer may revoke or suspend a person's <distributor's,
36-7 wholesaler's, bonded agent's, or retailer's> permit if the
36-8 treasurer finds, after notice and hearing as provided by this
36-9 section, that the permit holder violated this chapter or an
36-10 administrative rule made under this chapter.
36-11 (b) If the treasurer intends to suspend or revoke a permit,
36-12 the treasurer shall provide the permit holder with written notice
36-13 that includes a statement:
36-14 (1) of the reason for the intended revocation or
36-15 suspension;
36-16 (2) that the permit holder is entitled to a hearing by
36-17 the treasurer on the proposed suspension or revocation; and
36-18 (3) of the date, time, and place of the hearing.
36-19 (c) The treasurer shall mail the written notice by certified
36-20 mail, return receipt requested, to the permit holder's mailing
36-21 address as it appears in the treasurer's records <place designated
36-22 on the application for a permit as the place of business>. Service
36-23 by mail is complete when the notice is received, as evidenced by
36-24 the return receipt from the United States Postal Service.
36-25 (d) The treasurer shall give the permit holder not less than
36-26 10 days' notice of a final <may not schedule the> hearing <before
36-27 the 10th working day after the date the permit holder received the
37-1 notice>.
37-2 (e) A permit holder may appeal the decision of the treasurer
37-3 to a district court in Travis County not later than the 30th day
37-4 after the date the treasurer's decision becomes final.
37-5 (f) A person whose permit is suspended or revoked may not
37-6 sell, offer for sale, or distribute tobacco products from the place
37-7 of business to which the permit applied until a new permit is
37-8 granted or the suspension is removed.
37-9 (g) If the treasurer suspends or revokes a permit, the
37-10 treasurer shall provide written notice of the suspension or
37-11 revocation, within a reasonable time, to each permit holder in the
37-12 state. A permit holder violates Section 155.0415(a) by selling or
37-13 distributing tobacco products to a person whose permit has been
37-14 suspended or revoked only after the permit holder receives written
37-15 notice of the suspension or revocation from the treasurer.
37-16 SECTION 43. Subchapter C, Chapter 155, Tax Code, is amended
37-17 by adding Section 155.0591 to read as follows:
37-18 Sec. 155.0591. SUMMARY SUSPENSION OF A PERMIT. (a) The
37-19 treasurer may suspend a person's permit without notice or a hearing
37-20 for the person's failure to comply with this chapter or a rule
37-21 adopted under this chapter if the person's continued operation
37-22 constitutes an immediate and substantial threat to the collection
37-23 of taxes imposed by this chapter and attributable to the person's
37-24 operation.
37-25 (b) If the treasurer summarily suspends a person's permit,
37-26 proceedings for a preliminary hearing before the treasurer or the
37-27 treasurer's representative must be initiated simultaneously with
38-1 the summary suspension. The preliminary hearing shall be set for a
38-2 date not later than 10 days after the date of the summary
38-3 suspension, unless the parties agree to a later date.
38-4 (c) At the preliminary hearing, the permit holder must show
38-5 cause why the permit should not remain suspended pending a final
38-6 hearing on suspension or revocation.
38-7 (d) Chapter 2001, Government Code, does not apply to a
38-8 summary suspension under this section.
38-9 (e) To initiate a proceeding to suspend summarily a person's
38-10 permit, the treasurer shall serve notice on the permit holder
38-11 informing the permit holder of the right to a preliminary hearing
38-12 before the treasurer or the treasurer's representative and of the
38-13 time and place of the preliminary hearing. The notice must be
38-14 personally served on the permit holder or an officer, employee, or
38-15 agent of the permit holder or sent by certified or registered mail,
38-16 return receipt requested, to the permit holder's mailing address as
38-17 it appears in the treasurer's records. The notice must state the
38-18 alleged violations that constitute the grounds for summary
38-19 suspension. The suspension is effective at the time the notice is
38-20 served. If notice is served in person, the permit holder shall
38-21 immediately surrender the permit to the treasurer. If notice is
38-22 served by mail, the permit holder shall immediately return the
38-23 permit to the treasurer.
38-24 (f) Section 155.059, governing hearings for final suspension
38-25 or revocation of a permit under this chapter, governs a final
38-26 administrative hearing.
38-27 SECTION 44. Section 155.0595, Tax Code, is amended to read
39-1 as follows:
39-2 Sec. 155.0595. Hearings. Unless otherwise provided by this
39-3 chapter, the <The> treasurer shall conduct all hearings required by
39-4 this chapter in accordance with Chapter 2001, Government Code <the
39-5 Administrative Procedure and Texas Register Act (Article 6252-13a,
39-6 Vernon's Texas Civil Statutes)>. The treasurer may designate one
39-7 or more representatives to conduct the hearings and may prescribe
39-8 the rules of procedure governing the hearings.
39-9 SECTION 45. Section 155.101, Tax Code, is amended to read as
39-10 follows:
39-11 Sec. 155.101. Record of Purchase or Receipt. Each
39-12 distributor, wholesaler, <and> bonded agent, and export warehouse
39-13 shall keep records at each place of business of all tobacco
39-14 products purchased or <and> received. Each retailer shall keep
39-15 records at a single location, which the retailer shall designate as
39-16 its principal place of business in the state, of all tobacco
39-17 products purchased and received. These records must include:
39-18 (1) the name and address of the shipper or carrier and
39-19 the mode of transportation;
39-20 (2) all shipping records or copies of records,
39-21 including invoices, bills of lading, waybills, freight bills, and
39-22 express receipts;
39-23 (3) the date and the name of the place of origin of
39-24 the tobacco product shipment;
39-25 (4) the date and the name of the place of arrival of
39-26 the tobacco product shipment;
39-27 (5) a statement of the number, kind, and price paid
40-1 for the tobacco products;
40-2 (6) the name, address, permit number, and tax
40-3 identification number of the seller; and
40-4 (7) any other information required by rules of the
40-5 treasurer.
40-6 SECTION 46. Section 155.181, Tax Code, is amended to read as
40-7 follows:
40-8 Sec. 155.181. COMPLIANCE INVESTIGATION AND RECOVERY OF
40-9 <AUDIT> COSTS. (a) If the treasurer has reason to believe that a
40-10 person has failed to pay a tax or penalty in the proper manner when
40-11 due or otherwise failed to comply with<, as required by> this
40-12 chapter, the treasurer may employ auditors and investigators to
40-13 determine compliance and any <the> amount due. If the treasurer
40-14 determines that the person has not paid the tax or penalty or has
40-15 failed to comply with this chapter, the treasurer may require the
40-16 person to <shall> pay the reasonable expenses incurred in the
40-17 compliance investigation and audit as an additional penalty.
40-18 (b) The treasurer shall deposit funds paid under this
40-19 section to the credit of the general revenue <a special> fund in
40-20 the treasury to be used for making audits, conducting
40-21 investigations, or as otherwise appropriated. The comptroller
40-22 <treasurer> may use other funds available for audits as
40-23 appropriated by the legislature <when the special fund is
40-24 exhausted>.
40-25 SECTION 47. Subsection (a), Section 155.183, Tax Code, is
40-26 amended to read as follows:
40-27 (a) To determine the tax liability of a person dealing in
41-1 tobacco products or compliance by the person with this chapter, the
41-2 treasurer may:
41-3 (1) inspect any premises, including a vending machine
41-4 and its contents, where tobacco products are manufactured,
41-5 produced, stored, transported, sold, or offered for sale or
41-6 exchange;
41-7 (2) remain on the premises as long as necessary to
41-8 determine the tax liability or compliance with this chapter;
41-9 (3) examine the records required by this chapter or
41-10 other records, books, documents, papers, accounts, and objects that
41-11 the treasurer determines are necessary for conducting a complete
41-12 examination; and
41-13 (4) examine stocks of tobacco products.
41-14 SECTION 48. Section 155.185, Tax Code, is amended to read as
41-15 follows:
41-16 Sec. 155.185. DEFICIENCY DETERMINATION, PENALTIES, AND
41-17 INTEREST. (a) If the treasurer has reasonable cause to believe
41-18 that a tax report or the amount of tax is inaccurate, the treasurer
41-19 may compute and determine the amount of tax, penalty, and interest
41-20 to be paid from information contained in the report or from any
41-21 other information available to the treasurer.
41-22 (b) On making a deficiency determination, the treasurer
41-23 shall notify the person by certified mail, return receipt
41-24 requested. Service by mail is complete when the notice is
41-25 received, as evidenced by return receipt from the U.S. Postal
41-26 Service.
41-27 SECTION 49. Section 155.212, Tax Code, is amended to read as
42-1 follows:
42-2 Sec. 155.212. Books and Records. A person commits an
42-3 offense if the person:
42-4 (1) knowingly makes, delivers to, and files with the
42-5 treasurer a false return or an incomplete return or report;
42-6 (2) knowingly fails to make and deliver to the
42-7 treasurer a return or report as required by this chapter;
42-8 (3) destroys, mutilates, or conceals a book or record
42-9 required by this chapter;
42-10 (4) refuses to permit the attorney general or the
42-11 treasurer to inspect and audit books and records that are required
42-12 by this chapter or that are incidental to the conduct of the
42-13 tobacco products business;
42-14 (5) knowingly makes a false entry or fails to make
42-15 entries in the books and records required by this chapter; or
42-16 (6) fails to keep books and records for four years as
42-17 required by this chapter.
42-18 SECTION 50. Section 156.001, Tax Code, is amended to read as
42-19 follows:
42-20 Sec. 156.001. Definition. In this chapter, "hotel" means a
42-21 building in which members of the public obtain sleeping
42-22 accommodations for consideration. The term includes a hotel,
42-23 motel, tourist home, tourist house, tourist court, lodging house,
42-24 inn, or rooming house. The term<, but> does not include:
42-25 (1) a hospital, sanitarium, or nursing home; or
42-26 (2) a dormitory or other housing facility owned and
42-27 operated by an institution of higher education or a private or
43-1 independent institution of higher education as those terms are
43-2 defined by Section 61.003, Education Code, used for the purpose of
43-3 providing sleeping accommodations for persons engaged in an
43-4 educational program or activity at the institution.
43-5 SECTION 51. Subsections (f), (g), (h), and (i), Section
43-6 159.101, Tax Code, are amended to read as follows:
43-7 (f) <When the comptroller makes an assessment under this
43-8 chapter, the comptroller shall issue a determination stating the
43-9 amount and that the tax collection is in jeopardy. The amount
43-10 determined is due and payable immediately. A determination made
43-11 under this chapter becomes final on the expiration of 20 days after
43-12 the day on which the notice of the determination was served by
43-13 personal service or by mail unless a petition for a redetermination
43-14 is filed before the determination becomes final.>
43-15 <(g)> If a determination made under this chapter becomes
43-16 final without payment of the amount of the determination being
43-17 made, the comptroller shall add to the amount a penalty of 10
43-18 percent of the amount of the tax and interest.
43-19 (g) <(h)> In a redetermination proceeding held or a judicial
43-20 proceeding brought under this chapter, a certificate from the
43-21 comptroller that shows the issued determination is prima facie
43-22 evidence of:
43-23 (1) the determination of the stated tax or amount of
43-24 the tax;
43-25 (2) the stated amount of the penalties and interest;
43-26 and
43-27 (3) the compliance of the comptroller with this
44-1 chapter in computing and determining the amount due.
44-2 (h) <(i)> The suppression of evidence on any ground in a
44-3 criminal case that arises out of facts on which a determination is
44-4 made under this chapter or the dismissal of criminal charges in
44-5 such a case does not affect a determination made under this
44-6 chapter.
44-7 SECTION 52. Section 159.103, Tax Code, is amended to read as
44-8 follows:
44-9 Sec. 159.103. Exemption. The possession, purchase,
44-10 acquisition, importation, manufacture, or production of a taxable
44-11 substance is exempt from the tax imposed by this chapter if the
44-12 activity is authorized by law.
44-13 SECTION 53. The heading to Subchapter C, Chapter 159, Tax
44-14 Code, is amended to read as follows:
44-15 SUBCHAPTER C. CRIMINAL PROVISIONS<; SEIZURE AND FORFEITURE>
44-16 SECTION 54. Section 159.203, Tax Code, is amended to read as
44-17 follows:
44-18 Sec. 159.203. PREVIOUSLY USED CERTIFICATES. (a) A person
44-19 commits an offense if the person:
44-20 (1) uses, sells, offers for sale, or possesses for use
44-21 or sale previously used tax payment certificates; or
44-22 (2) attaches or causes to be attached a previously
44-23 used tax payment certificate to a taxable substance.
44-24 (b) An offense under this section is a felony of the third
44-25 degree.
44-26 (c) Venue of a prosecution under this section is in Travis
44-27 County.
45-1 SECTION 55. Section 159.205, Tax Code, is amended to read as
45-2 follows:
45-3 Sec. 159.205. RIGHT TO COLLECT SUBORDINATE TO OTHER LAWS
45-4 <FORFEITURE>. (a) <Property seized under Section 159.204 of this
45-5 code is subject to forfeiture to the state in the same manner as
45-6 provided for forfeiture of seized property under Chapter 103,
45-7 Alcoholic Beverage Code. Property forfeited to the state that is
45-8 not ordered destroyed may be used by the seizing agency for
45-9 official purposes or sold at public auction in the manner provided
45-10 by law for sheriff's sales. The proceeds from the sale of property
45-11 forfeited under this section, after satisfaction of all costs,
45-12 shall be disposed of in the manner provided for by Article 59.06,
45-13 Code of Criminal Procedure.>
45-14 <(b)> The right of the comptroller to collect the tax
45-15 imposed by this chapter, including applicable penalty and interest,
45-16 is subordinate to the right of a federal, state, or local law
45-17 enforcement authority to seize, forfeit, and retain property under
45-18 Chapter 481, Health and Safety Code; Chapter 59, Code of Criminal
45-19 Procedure; or any other criminal forfeiture law of this state or of
45-20 the United States. A lien filed by the comptroller as a result of
45-21 the failure of a dealer to pay the tax, penalty, or interest due
45-22 under this chapter is also subordinate to those rights.
45-23 (b) This section does not affect the validity of a lien or a
45-24 collection action relating to the tax imposed by this chapter under
45-25 any other circumstance.
45-26 SECTION 56. Section 159.206, Tax Code, is amended to read as
45-27 follows:
46-1 Sec. 159.206. Settlement or Compromise of Tax. <(a)> The
46-2 comptroller may settle or compromise a tax, penalty, or interest
46-3 imposed under this chapter only if:
46-4 (1) the prosecutor of a criminal offense under this
46-5 chapter or of another offense arising out of the same incident or
46-6 transaction requests in writing that the comptroller settle or
46-7 compromise and specifies the reasons for the request; and
46-8 (2) the comptroller determines that the settlement or
46-9 compromise is in the best interest of the state.
46-10 <(b) The prosecutor of a criminal offense under this chapter
46-11 or of another criminal offense arising out of the same incident or
46-12 transaction or the taxpayer or the taxpayer's representative may
46-13 request in writing that the comptroller defer an administrative
46-14 hearing on a determination made on this chapter until a trial has
46-15 been completed in the criminal case involving the same incident or
46-16 transaction or another disposition has been made of the case. The
46-17 comptroller may comply with a request to defer an administrative
46-18 hearing if the comptroller determines that the deferral would be in
46-19 the best interest of the state. This subsection does not prohibit
46-20 the comptroller from filing a lien or taking any other action to
46-21 collect the tax in the manner permitted under this code before the
46-22 conclusion of an administrative hearing.>
46-23 SECTION 57. Section 201.201, Tax Code, is amended to read as
46-24 follows:
46-25 Sec. 201.201. Tax Due. The tax imposed by this chapter for
46-26 gas produced and saved is due at the office of the comptroller in
46-27 Austin on the 20th <last> day of the second <each calendar> month
47-1 following the month of production <for gas produced and saved
47-2 during the preceding calendar month>.
47-3 SECTION 58. Section 361.138, Health and Safety Code, is
47-4 amended by amending Subsection (a) and by adding Subsections (l),
47-5 (m), and (n) to read as follows:
47-6 (a) In this section:
47-7 (1) "Engaged in business in this state" has the
47-8 meaning provided under Sections 151.107(a) and (b), Tax Code.
47-9 (2) "Lead-acid<, "lead-acid> battery" means any
47-10 battery which contains lead and sulfuric acid.
47-11 (3) "Purchased for resale" means acquired by means of
47-12 a sale for resale as defined in Section 151.006, Tax Code.
47-13 (4) "Storage" and "use" have the meanings assigned
47-14 those terms by Section 151.011, Tax Code.
47-15 (l) A fee is imposed on the storage, use, or other
47-16 consumption in this state of a lead-acid battery, unless purchased
47-17 for resale, at the same rate as provided by Subsection (b).
47-18 (m) A person storing, using, or consuming a lead-acid
47-19 battery in this state is liable for the fee imposed by Subsection
47-20 (l) and is responsible for reporting and paying it to the
47-21 comptroller in the same manner as a person required to collect the
47-22 fee provided for in Subsections (c)(2) and (d).
47-23 (n) A person storing, using, or consuming a lead-acid
47-24 battery in this state is not liable for the fee if the person pays
47-25 the fee to a wholesaler or retailer engaged in business in this
47-26 state or other person authorized by the comptroller to collect the
47-27 fee and receives from the person a receipt showing that the fee has
48-1 been paid.
48-2 SECTION 59. Section 361.472, Health and Safety Code, is
48-3 amended by adding Subsection (k) to read as follows:
48-4 (k) In this section:
48-5 (1) "Engaged in business in this state" has the
48-6 meaning provided under Sections 151.107(a) and (b), Tax Code.
48-7 (2) "Purchased for resale" means acquired by means of
48-8 a sale for resale as defined in Section 151.006, Tax Code.
48-9 (3) "Storage" and "use" have the meanings assigned
48-10 those terms by Section 151.011, Tax Code.
48-11 SECTION 60. Subsection (c), Section 361.472, Health and
48-12 Safety Code, is amended to read as follows:
48-13 (c) A fee may not be assessed for a bicycle tire or a solid
48-14 industrial tire.
48-15 SECTION 61. Subsection (e), Section 4A, Development
48-16 Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil
48-17 Statutes), is amended to read as follows:
48-18 (e) The Municipal Sales and Use Tax Act (Chapter 321, Tax
48-19 Code) governs an election to authorize the imposition of the sales
48-20 and use tax under this section and governs the imposition,
48-21 computation, administration, governance, abolition, and use of the
48-22 tax except as inconsistent with this section. The tax imposed
48-23 under this section <If an election is held under Subsection (f) of
48-24 this section at the same time as another election under this
48-25 section and an additional sales and use tax under Section
48-26 321.101(b), Tax Code, is adopted or repealed or its rate is
48-27 increased or reduced, each tax under this section and the
49-1 imposition or change in the rate of the additional sales and use
49-2 tax> takes effect as provided by Section 321.102(a) <321.102(b)>,
49-3 Tax Code.
49-4 SECTION 62. Subsections (3) and (6), Section 12, Article
49-5 8817, Revised Statutes, are amended to read as follows:
49-6 (3) The application shall be accompanied by a <sworn>
49-7 written statement executed by the individual designated to maintain
49-8 the records and make reports that he is aware of and accepts this
49-9 responsibility.
49-10 (6) The application must contain a statement that the
49-11 information contained in it is true and correct<, and this
49-12 statement shall be made under oath>.
49-13 SECTION 63. Subsection (1), Section 19, Article 8817,
49-14 Revised Statutes, is amended to read as follows:
49-15 (1) The Comptroller may not issue a general business <or
49-16 import> license for a business under this Article if the
49-17 Comptroller finds that the applicant:
49-18 (a) has been finally convicted of a felony in a court
49-19 of competent jurisdiction during the five years preceding the
49-20 filing of the application; or
49-21 (b) has been on probation or parole as a result of a
49-22 felony conviction during the two years preceding the filing of the
49-23 application.
49-24 SECTION 64. Section 159.204, Tax Code, is repealed.
49-25 SECTION 65. (a) The change in law made by this Act does not
49-26 affect the collection or the enforcement of the payment of taxes
49-27 imposed before the effective date of this Act, and the law in
50-1 effect before the effective date of this Act is continued in effect
50-2 for purposes of the liability for and collection of those taxes.
50-3 This subsection does not apply to the change to Section 201.201,
50-4 Tax Code, as amended by this Act, for taxes made due by that
50-5 section in the second month after the effective date of that
50-6 section.
50-7 (b) The change in law made to Chapter 159, Tax Code, by this
50-8 Act applies only to a violation of the penal law of this state that
50-9 occurs on or after the effective date of this Act. A violation of
50-10 the penal law of this state occurs on or after the effective date
50-11 of this Act if any element of the violation occurs on or after that
50-12 date.
50-13 (c) A violation of the penal law of this state that occurs
50-14 before the effective date of this Act is governed by the law in
50-15 effect at the time the violation occurred, and that law is
50-16 continued in effect for that purpose.
50-17 SECTION 66. If legislation is enacted transferring the
50-18 responsibilities of the treasurer to the comptroller, the
50-19 comptroller shall administer this Act consistent with that
50-20 legislation.
50-21 SECTION 67. This Act takes effect October 1, 1995.
50-22 SECTION 68. The importance of this legislation and the
50-23 crowded condition of the calendars in both houses create an
50-24 emergency and an imperative public necessity that the
50-25 constitutional rule requiring bills to be read on three several
50-26 days in each house be suspended, and this rule is hereby suspended.