1-1  By:  Montford                                          S.B. No. 644
    1-2        (In the Senate - Filed February 17, 1995; February 20, 1995,
    1-3  read first time and referred to Committee on Finance;
    1-4  April 3, 1995, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 10, Nays 0; April 3, 1995,
    1-6  sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR S.B. No. 644                 By:  Montford
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to administration and collection of the franchise tax.
   1-11        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-12        SECTION 1.  Subsection (b), Section 171.001, Tax Code, is
   1-13  amended by amending Subdivisions (2) through (7) and by adding
   1-14  Subdivision (8) to read as follows:
   1-15              (2)  "Beginning date" means:
   1-16                    (A)  for a corporation chartered in this state,
   1-17  the date on which the corporation's charter takes effect; and
   1-18                    (B)  for a foreign corporation, the earlier of
   1-19  the date on which:
   1-20                          (i)  the corporation's certificate of
   1-21  authority takes effect; or
   1-22                          (ii)  the corporation begins doing business
   1-23  in this state.
   1-24              (3)  "Corporation" includes:
   1-25                    (A)  a limited liability company, as defined
   1-26  under the Texas Limited Liability Company Act; and
   1-27                    (B)  a state or federal savings and loan
   1-28  association.
   1-29              (4) <(3)>  "Charter" includes a limited liability
   1-30  company's certificate of organization.
   1-31              (5) <(4)>  "Internal Revenue Code" means the Internal
   1-32  Revenue Code of 1986 in effect for the federal tax year beginning
   1-33  on or after January 1, 1994 <1990>, and before January 1, 1995
   1-34  <1991>, and any regulations adopted under that code applicable to
   1-35  that period.
   1-36              (6) <(5)>  "Officer" and "director" include a limited
   1-37  liability company's directors and managers and a limited banking
   1-38  association's directors and managers and participants if there are
   1-39  no directors or managers.
   1-40              (7) <(6)>  "Savings and loan association" includes a
   1-41  state or federal savings bank.
   1-42              (8) <(7)>  "Shareholder" includes a limited liability
   1-43  company's member and a limited banking association's participant.
   1-44        SECTION 2.  Subsection (c), Section 171.0021, Tax Code, is
   1-45  amended to read as follows:
   1-46        (c)  The corporation may claim the credit beginning with the
   1-47  first report due under this chapter after January 1, 1994, and may
   1-48  carry all or part of the credit forward for not more than five
   1-49  consecutive reports <privilege periods> beginning with the 1994
   1-50  report.  A corporation may not claim <for a privilege period> a
   1-51  credit in an amount that exceeds the amount of tax due for that
   1-52  report <privilege period.  For the purposes of this section, an
   1-53  initial period and a second period are considered one privilege
   1-54  period>.
   1-55        SECTION 3.  Section 171.061, Tax Code, is amended to read as
   1-56  follows:
   1-57        Sec. 171.061.  EXEMPTION--NONPROFIT CORPORATION ORGANIZED FOR
   1-58  EDUCATIONAL PURPOSES.  A nonprofit corporation organized solely for
   1-59  educational purposes<, including a corporation organized solely to
   1-60  provide a student loan fund or student scholarships,> is exempted
   1-61  from the franchise tax.
   1-62        SECTION 4.  Subsections (a) and (g), Section 171.063, Tax
   1-63  Code, are amended to read as follows:
   1-64        (a)  The following corporations are exempt from the franchise
   1-65  tax:
   1-66              (1)  a nonprofit corporation exempted from the federal
   1-67  income tax under Section 501(c)(3), (4), (5), (6), <or> (7), (8),
   1-68  (10), or (19), <of the> Internal Revenue Code <of 1954, as it
    2-1  existed on January 1, 1975;> which in the case of a nonprofit
    2-2  hospital means a hospital providing charity care and community
    2-3  benefits as set forth in Paragraph (A), (B), (C), (D), (E), or (F):
    2-4                    (A)  charity care and government-sponsored
    2-5  indigent health care are provided at a level which is reasonable in
    2-6  relation to the community needs, as determined through the
    2-7  community needs assessment, the available resources of the
    2-8  hospital, and the tax-exempt benefits received by the hospital;
    2-9                    (B)  charity care and government-sponsored
   2-10  indigent health care are provided in an amount equal to at least
   2-11  four percent of the hospital's net patient revenue;
   2-12                    (C)  charity care and government-sponsored
   2-13  indigent health care are provided in an amount equal to at least
   2-14  100 percent of the hospital's tax-exempt benefits, excluding
   2-15  federal income tax; or
   2-16                    (D)  a nonprofit hospital that has been
   2-17  designated as a disproportionate share hospital under the state
   2-18  Medicaid program in either of the previous two fiscal years shall
   2-19  be considered to have provided a reasonable amount of charity care
   2-20  and government-sponsored indigent health care and shall be deemed
   2-21  in compliance with the standards in this subsection;
   2-22                    (E)  for tax periods ending before 1996, charity
   2-23  care and community benefits are provided in a combined amount equal
   2-24  to at least five percent of the hospital's net patient revenue,
   2-25  provided that charity care and government-sponsored indigent health
   2-26  care are provided in an amount equal to at least three percent of
   2-27  net patient revenue; or
   2-28                    (F)  for tax periods ending after 1995, charity
   2-29  care and community benefits are provided in a combined amount equal
   2-30  to at least five percent of the hospital's net patient revenue,
   2-31  provided that charity care and government-sponsored indigent health
   2-32  care are provided in an amount equal to at least four percent of
   2-33  net patient revenue; or
   2-34              (2)  a corporation exempted under Section 501(c)(2) or
   2-35  (25), <of the> Internal Revenue Code <of 1986>, if the corporation
   2-36  or corporations for which it holds title to property is either
   2-37  exempt from or not subject to the franchise tax;
   2-38              (3)  a corporation exempted from federal income tax
   2-39  under Section 501(c)(16), Internal Revenue Code <of 1986>; and
   2-40              (4)  a nonprofit corporation exempted from the federal
   2-41  income tax under Section 501(c)(3), <of the> Internal Revenue Code
   2-42  <of 1986>, that is a nonprofit hospital and does not receive any
   2-43  payment for providing health care services to inpatients or
   2-44  outpatients from any source including but not limited to the
   2-45  patient or person legally obligated to support the patient,
   2-46  third-party payors, Medicare, Medicaid, or any other state or local
   2-47  indigent care program.  Payment for providing health care services
   2-48  does not include charitable donations, legacies, bequests, or
   2-49  grants or payments for research.
   2-50        For purposes of this subsection, the terms "charity care,"
   2-51  "government-sponsored indigent health care," "net patient revenue,"
   2-52  "nonprofit hospital," and "tax-exempt benefits" have the meanings
   2-53  set forth in Sections 311.031 and 311.042, Health and Safety Code.
   2-54  A determination of the amount of community benefits and charity
   2-55  care and government-sponsored indigent health care provided by a
   2-56  hospital and the hospital's compliance with the requirements of
   2-57  Section 311.045, Health and Safety Code, shall be based on the most
   2-58  recently completed and audited prior fiscal year of the hospital.
   2-59        The providing of charity care and government-sponsored
   2-60  indigent health care in accordance with Paragraph (A) of
   2-61  Subdivision (1) shall be guided by the prudent business judgment of
   2-62  the hospital which will ultimately determine the appropriate level
   2-63  of charity care and government-sponsored indigent health care based
   2-64  on the community needs, the available resources of the hospital,
   2-65  the tax-exempt benefits received by the hospital, and other factors
   2-66  that may be unique to the hospital.  These criteria shall not be
   2-67  determinative factors, but shall be guidelines contributing to the
   2-68  hospital's decision along with other factors which may be unique to
   2-69  the hospital.  The formulas contained in Paragraphs (B), (C), (E),
   2-70  and (F) of Subdivision (1) shall also not be considered
    3-1  determinative of a reasonable amount of charity care and
    3-2  government-sponsored indigent health care.
    3-3        The requirements of this subsection shall not apply to the
    3-4  extent a hospital demonstrates that reductions in the amount of
    3-5  community benefits, charity care, and government-sponsored indigent
    3-6  health care are necessary to maintain financial reserves at a level
    3-7  required by a bond covenant, are necessary to prevent the hospital
    3-8  from endangering its ability to continue operations, or if the
    3-9  hospital, as a result of a natural or other disaster, is required
   3-10  substantially to curtail its operations.
   3-11        In any fiscal year that a hospital, through unintended
   3-12  miscalculation, fails to meet any of the standards in Subdivision
   3-13  (1), the hospital shall not lose its tax-exempt status without the
   3-14  opportunity to cure the miscalculation in the fiscal year following
   3-15  the fiscal year the failure is discovered by both meeting one of
   3-16  the standards and providing an additional amount of charity care
   3-17  and government-sponsored indigent health care that is equal to the
   3-18  shortfall from the previous fiscal year.  A hospital may apply this
   3-19  provision only once every five years.
   3-20        (g)  If a corporation's federal tax exemption is withdrawn by
   3-21  the Internal Revenue Service for failure of the corporation to
   3-22  qualify or maintain its qualification for the exemption, the
   3-23  corporation's exemption under this section ends on the effective
   3-24  date of that <the> withdrawal by the Internal Revenue Service.  The
   3-25  effective date of the withdrawal is considered the corporation's
   3-26  beginning date for purposes of determining the corporation's
   3-27  privilege periods and for all other purposes of this chapter.
   3-28        SECTION 5.  Section 171.064, Tax Code, is amended to read as
   3-29  follows:
   3-30        Sec. 171.064.  EXEMPTION--NONPROFIT CORPORATION ORGANIZED FOR
   3-31  CONSERVATION PURPOSES.  A nonprofit corporation organized solely to
   3-32  educate the public about the protection and conservation of fish,
   3-33  game, other wildlife, grasslands, or <and> forests is exempted from
   3-34  the franchise tax.
   3-35        SECTION 6.  Section 171.069, Tax Code, is amended to read as
   3-36  follows:
   3-37        Sec. 171.069.  EXEMPTION--MARKETING ASSOCIATIONS.  A
   3-38  marketing association incorporated under Chapter 52, Agriculture
   3-39  Code <Article 5737 et seq., Revised Civil Statutes of Texas, 1925>,
   3-40  is exempted from the franchise tax.
   3-41        SECTION 7.  Section 171.071, Tax Code, is amended to read as
   3-42  follows:
   3-43        Sec. 171.071.  EXEMPTION--FARMERS' COOPERATIVE SOCIETY.  A
   3-44  farmers' cooperative society incorporated under Chapter 51,
   3-45  Agriculture Code <Article 2514 et seq., Revised Civil Statutes of
   3-46  Texas, 1925>, is exempted from the franchise tax.
   3-47        SECTION 8.  Section 171.076, Tax Code, is amended to read as
   3-48  follows:
   3-49        Sec. 171.076.  EXEMPTION--COOPERATIVE CREDIT ASSOCIATION.  A
   3-50  cooperative credit association incorporated under Chapter 55,
   3-51  Agriculture Code <Article 2508 et seq., Revised Civil Statutes of
   3-52  Texas, 1925>, is exempted from the franchise tax.
   3-53        SECTION 9.  Section 171.082, Tax Code, is amended to read as
   3-54  follows:
   3-55        Sec. 171.082.  EXEMPTION--CERTAIN HOMEOWNERS' ASSOCIATIONS.
   3-56  (a)  A nonprofit corporation is exempted from the franchise tax if:
   3-57              (1)  the corporation is organized and operated
   3-58  primarily to obtain, manage, construct, and maintain the property
   3-59  in or of a residential condominium or residential real estate
   3-60  development; and
   3-61              (2)  <voting control of the corporation is vested in>
   3-62  the owners of individual lots, residences, or residential units
   3-63  control at least 51 percent of the votes of the corporation and
   3-64  that voting control, however acquired, is not held by:
   3-65                    (A)  a single individual or family; or
   3-66                    (B)  one or more developers, declarants, banks,
   3-67  investors, or other similar parties<, and not in the developer>.
   3-68        (b)  For purposes of this section, a condominium project is
   3-69  considered residential if the project is legally restricted for use
   3-70  as residences.  A real estate development is considered residential
    4-1  if the property is legally restricted for use as residences.
    4-2        SECTION 10.  Subchapter B, Chapter 171, Tax Code, is amended
    4-3  by adding Section 171.087 to read as follows:
    4-4        Sec. 171.087.  EXEMPTION--NONPROFIT CORPORATION ORGANIZED FOR
    4-5  STUDENT LOAN FUNDS OR STUDENT SCHOLARSHIP PURPOSES.  A nonprofit
    4-6  corporation organized solely to provide a student loan fund or
    4-7  student scholarships is exempted from the franchise tax.
    4-8        SECTION 11.  Subsection (f), Section 171.109, Tax Code, is
    4-9  amended to read as follows:
   4-10        (f)  A corporation declaring dividends shall exclude those
   4-11  dividends from its taxable capital, and a <as of the date the
   4-12  dividends are declared.  A> corporation receiving dividends shall
   4-13  include those dividends in its gross receipts<, to the extent not
   4-14  excluded under Section 171.1032(b) or 171.1051(c),> and taxable
   4-15  capital as of the earlier of:
   4-16              (1)  the date the dividends are declared, if the
   4-17  dividends are actually paid within one year after the declaration
   4-18  date; or
   4-19              (2)  the date the dividends are actually paid <by the
   4-20  corporation declaring the dividends>.
   4-21        SECTION 12.  Subsection (e), Section 171.110, Tax Code, is
   4-22  amended to read as follows:
   4-23        (e)  For purposes of this section, a business loss is any
   4-24  negative amount after apportionment and allocation.  The business
   4-25  loss shall be carried forward to the year succeeding the loss year
   4-26  as a deduction to net taxable earned surplus, then successively to
   4-27  the succeeding four taxable years after the loss year or until the
   4-28  loss is exhausted, whichever occurs first, but for not more than
   4-29  five taxable years after the loss year.  Notwithstanding the
   4-30  preceding sentence, a business loss from a tax year that ends
   4-31  before January 1, 1991, may not be used to reduce net taxable
   4-32  earned surplus.
   4-33        SECTION 13.  Section 171.112, Tax Code, is amended by adding
   4-34  Subsection (h) to read as follows:
   4-35        (h)  Except as otherwise provided by this section, a
   4-36  corporation shall use the same accounting methods to apportion its
   4-37  taxable capital as it used to compute its taxable capital.
   4-38        SECTION 14.  Section 171.151, Tax Code, is amended to read as
   4-39  follows:
   4-40        Sec. 171.151.  PRIVILEGE PERIOD COVERED BY TAX.  The
   4-41  franchise tax shall be paid for each of the following:
   4-42              (1)  an initial period beginning on the corporation's
   4-43  beginning date <that the corporation files its charter or is
   4-44  granted a certificate of authority or the date that a foreign
   4-45  corporation begins doing business in this state, whichever is
   4-46  earlier,> and ending on the day before the first anniversary of the
   4-47  beginning <that> date;
   4-48              (2)  a second period beginning on the first anniversary
   4-49  of the beginning date <that the corporation files its charter or is
   4-50  granted its certificate of authority or the date that a foreign
   4-51  corporation begins doing business in this state, whichever is
   4-52  earlier,> and ending on December 31 following that date; and
   4-53              (3)  after the initial and second periods have expired,
   4-54  a regular annual period beginning each year on January 1 and ending
   4-55  the following December 31.
   4-56        SECTION 15.  Subsection (c), Section 171.152, Tax Code, is
   4-57  amended to read as follows:
   4-58        (c)  Payment of the tax covering the regular annual period is
   4-59  due May 15, of each year after the beginning of the regular annual
   4-60  period.  However, if the first anniversary of the corporation's
   4-61  beginning date <that the domestic corporation files its charter or
   4-62  the foreign corporation begins doing business in Texas or is
   4-63  granted its certificate of authority, whichever occurs first,> is
   4-64  after October 3 and before January 1, the payment of the tax
   4-65  covering the first regular annual period is due on the same date as
   4-66  the tax covering the initial period.
   4-67        SECTION 16.  Subsections (a) and (c), Section 171.153, Tax
   4-68  Code, are amended to read as follows:
   4-69        (a)  The tax covering the initial period is reported on the
   4-70  initial report and is based on the business done by the corporation
    5-1  during the period beginning on the corporation's beginning date
    5-2  <day the corporation files its charter or is granted a certificate
    5-3  of authority or the date that a foreign corporation begins doing
    5-4  business in this state, whichever is earlier,> and:
    5-5              (1)  ending on the last accounting period ending date
    5-6  that is at least six months after the beginning date and at least
    5-7  60 days before the original due date of the initial report; or
    5-8              (2)  if there is no such period ending date in
    5-9  Subdivision (1) of this subsection, then ending on the day that is
   5-10  the last day of a calendar month and that is nearest to the end of
   5-11  the corporation's first year of business; or
   5-12              (3)  ending on the day after the merger occurs, for the
   5-13  survivor of a merger which occurs after the day on which the tax is
   5-14  based in Subdivision (1) or Subdivision (2), whichever is
   5-15  applicable, of Subsection (a) and before January 1, of the year an
   5-16  initial report is due by the survivor.
   5-17        (c)  The tax covering the regular annual period is based on
   5-18  the business done by the corporation during its last accounting
   5-19  period that ends in the year before the year in which the tax is
   5-20  due; unless a corporation is the survivor of a merger which occurs
   5-21  between the end of its last accounting period in the year before
   5-22  the report year and January 1 of the report year, in which case the
   5-23  tax will be based on the financial condition of the surviving
   5-24  corporation for the 12-month period ending on the day after the
   5-25  merger.  However, if the first anniversary of the corporation's
   5-26  beginning date <that the corporation files its charter, is granted
   5-27  its certificate of authority, or begins doing business in this
   5-28  state> is after October 3 and before January 1, the tax covering
   5-29  the first regular annual period is based on the same business on
   5-30  which the tax covering the initial period is based and is reported
   5-31  on the initial report.
   5-32        SECTION 17.  Subsections (b) and (c), Section 171.1531, Tax
   5-33  Code, are amended to read as follows:
   5-34        (b)  The survivor of a merger is entitled to a credit against
   5-35  the tax computed on its net taxable capital under Section
   5-36  171.002(b)(1) <or refund> in the amount of the franchise tax
   5-37  computed on net taxable capital paid by the nonsurvivors for the
   5-38  credit period, provided the tax computed on net taxable capital
   5-39  paid by the survivor for the credit period is based on the
   5-40  survivor's financial condition after the merger.  Only a survivor
   5-41  that is subject to the franchise tax is entitled to the merger
   5-42  credit <or refund>.  The merger credit shall be allocated among
   5-43  survivors based on net taxable capital reported, and as provided by
   5-44  Section 171.153.
   5-45        (c)  The credit <or refund> will be limited to the lesser of
   5-46  the amount of tax on net taxable capital paid for the credit period
   5-47  by the survivor or by the nonsurvivors.
   5-48        SECTION 18.  Section 171.1532, Tax Code, is amended to read
   5-49  as follows:
   5-50        Sec. 171.1532.  BUSINESS ON WHICH TAX ON NET TAXABLE EARNED
   5-51  SURPLUS IS BASED.  (a)  The tax covering the privilege periods
   5-52  included on the initial report, as required by Section 171.153, is
   5-53  based on the business done by the corporation during the period
   5-54  beginning on the corporation's beginning date <day the corporation
   5-55  files its charter or is granted a certificate of authority or the
   5-56  date that a foreign corporation begins doing business in this
   5-57  state, whichever is earlier,> and:
   5-58              (1)  ending on the last accounting period ending date
   5-59  that is at least 60 days before the original due date of the
   5-60  initial report; or
   5-61              (2)  if there is no such period ending date in
   5-62  Subdivision (1) of this subsection, then ending on the day that is
   5-63  the last day of a calendar month and that is nearest to the end of
   5-64  the corporation's first year of business.
   5-65        (b)  The tax covering the regular annual period, other than a
   5-66  regular annual period included on the initial report, is based on
   5-67  the business done by the corporation during the period beginning
   5-68  with the day after the last date upon which net taxable earned
   5-69  surplus on a previous report was <the initial report is> based<, as
   5-70  required by Subsection (a) of this section,> and ending with its
    6-1  last accounting period ending date for federal income tax purposes
    6-2  in the year before the year in which the report is originally due.
    6-3        SECTION 19.  Section 171.203, Tax Code, is amended by
    6-4  amending Subsection (a) and by adding Subsections (d) and (e) to
    6-5  read as follows:
    6-6        (a)  A corporation on which the franchise tax is imposed
    6-7  shall file a report with the comptroller containing:
    6-8              (1)  the name of each corporation in which the
    6-9  corporation filing the report owns a 10 percent or greater interest
   6-10  and the percentage owned by the corporation;
   6-11              (2)  the name of each corporation that owns a 10
   6-12  percent or greater interest in the corporation filing the report;
   6-13              (3)  the name, title, and mailing address of each
   6-14  person who is an officer or <and> director of the corporation on
   6-15  the date the report is filed and the expiration date of each
   6-16  person's term as an officer or director, if any;
   6-17              (4)  the name and address of the agent of the
   6-18  corporation designated under Section 171.354 of this code; and
   6-19              (5)  the address of the corporation's principal office
   6-20  and principal place of business.
   6-21        (d)  The corporation shall send a copy of the report to each
   6-22  person named in the report under Subsection (a)(3).  An officer or
   6-23  director of the corporation must sign the report under a
   6-24  certification that:
   6-25              (1)  all information contained in the report is true
   6-26  and correct to the best of the officer's knowledge; and
   6-27              (2)  a copy of the report has been mailed to each
   6-28  person who is an officer or director of the corporation on the date
   6-29  the return is filed.
   6-30        (e)  If a person's name is included in a report under
   6-31  Subsection (a)(3) and the person is not an officer or director of
   6-32  the corporation on the date the report is filed, the person may
   6-33  file with the comptroller a sworn statement disclaiming the
   6-34  person's status as shown on the report.  The comptroller shall
   6-35  maintain a record of statements filed under this subsection and
   6-36  shall make that information available on request using the same
   6-37  procedures the comptroller uses for other requests for public
   6-38  information.
   6-39        SECTION 20.  Subsection (b), Section 171.363, Tax Code, is
   6-40  amended to read as follows:
   6-41        (b)  A person commits an offense if the person is an
   6-42  accountant or an agent for or an officer or employee of a
   6-43  corporation and the person knowingly enters or provides false
   6-44  information on any <the> report, return, or other document filed by
   6-45  <of> the corporation under this chapter.
   6-46        SECTION 21.  Subsection (g), Section 171.202, Tax Code, is
   6-47  repealed.
   6-48        SECTION 22.  This Act takes effect January 1, 1996, and
   6-49  applies to a report originally due on or after that date.
   6-50        SECTION 23.  The importance of this legislation and the
   6-51  crowded condition of the calendars in both houses create an
   6-52  emergency and an imperative public necessity that the
   6-53  constitutional rule requiring bills to be read on three several
   6-54  days in each house be suspended, and this rule is hereby suspended.
   6-55                               * * * * *