By Wilson H.B. No. 3004
75R6265 PAM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to transferring certain responsibilities relating to the
1-3 tax on mixed beverages from the comptroller, to the Texas Alcoholic
1-4 Beverage Commission; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Title 5, Alcoholic Beverage Code, is amended by
1-7 adding Chapter 202 to read as follows:
1-8 CHAPTER 202. MIXED BEVERAGE TAX
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 202.01. DEFINITIONS. In this chapter:
1-11 (1) "Permit holder" means a holder of a mixed beverage
1-12 permit, a private club registration permit, a private club
1-13 exemption certificate permit, a private club late hours permit, a
1-14 daily temporary private club permit, a private club registration
1-15 permit who also holds a food and beverage certificate, a daily
1-16 temporary mixed beverage permit, a mixed beverage late hours
1-17 permit, a mixed beverage permit who also holds a food and beverage
1-18 certificate, or a caterer permit.
1-19 (2) "Business day" means the period beginning at 3
1-20 a.m. one day and ending at 3 a.m. the next day.
1-21 (Sections 202.02-202.20 reserved for expansion
1-22 SUBCHAPTER B. MIXED BEVERAGE TAX
1-23 Sec. 202.21. TAX IMPOSED ON MIXED BEVERAGES. A tax at the
1-24 rate of 14 percent is imposed on a permit holder's gross receipts
2-1 received from the sale, preparation, or service of mixed beverages
2-2 or from the sale, preparation, or service of ice or nonalcoholic
2-3 beverages that are sold, prepared, or served for the purpose of
2-4 being mixed with an alcoholic beverage and consumed on the premises
2-5 of the permit holder.
2-6 Sec. 202.22. TAX RETURN DUE DATE. (a) A permit holder
2-7 shall file a tax return with the commission not later than the 20th
2-8 day of each month.
2-9 (b) The return under this section must be in a form
2-10 prescribed by the commission and must include a statement of the
2-11 total gross taxable receipts during the preceding month and any
2-12 other information required by the commission.
2-13 (c) A tax due for a business day that falls in two different
2-14 months is allocated to the month in which the business day begins.
2-15 Sec. 202.23. PAYMENT. The tax due for the preceding month
2-16 shall accompany the return and shall be payable to the state. The
2-17 commission shall deposit the revenue in the mixed beverage tax
2-18 clearance fund.
2-19 (Sections 202.24-202.40 reserved for expansion
2-20 SUBCHAPTER C. RECORDS RETENTION
2-21 Sec. 202.41. RECORDS OF TAX RECEIPTS. (a) Each permit
2-22 holder shall make and keep a record, in a form prescribed by the
2-23 commission, of all tax receipts, including the total tax receipts
2-24 for each business day.
2-25 (b) Permit holders, excluding daily temporary mixed beverage
2-26 permit holders, shall keep a copy of the record required by this
2-27 section and other records of receipts and disbursements by the
3-1 permit holder on file on the holder's premises for a period of two
3-2 years. The record is open to inspection by any agent of the
3-3 commission or by any peace officer at any time.
3-4 Sec. 202.42. RECORDS AT SINGLE LOCATION. (a) If two or
3-5 more establishments operated under a permit referenced in Section
3-6 202.01(1) are located in the same county and are under the same or
3-7 substantially the same ownership, the holder of the permit may
3-8 apply to the commission, on a form furnished by the commission, for
3-9 permission to keep all required records for the establishments at a
3-10 single location in the county. The single location does not need
3-11 to be the licensed premises of one of the establishments.
3-12 (b) If the commission approves the application, the
3-13 commission must provide written approval and may impose any
3-14 conditions regarding the keeping of the records that the commission
3-15 finds appropriate.
3-16 (c) If records are kept at a single location under this
3-17 section, the records for each establishment must be kept
3-18 separately.
3-19 Sec. 202.43. COMMISSION RECORD OF TAX RECEIPTS. The
3-20 commission shall keep a record indicating the name of the permit
3-21 holder from whom each return is received, the municipality, if any,
3-22 and county in which the permit holder's premises are located, and
3-23 the amount of the tax received.
3-24 (Sections 202.44-202.60 reserved for expansion
3-25 SUBCHAPTER D. MIXED BEVERAGE TAX CLEARANCE FUND
3-26 Sec. 202.61. MIXED BEVERAGE TAX CLEARANCE FUND. (a) Not
3-27 later than the last day of the month after a calendar quarter, the
4-1 commission shall compute the total amount of taxes received during
4-2 the preceding quarter from permit holders outside of any
4-3 municipality within each county and the total amount received from
4-4 permit holders within each municipality in each county. The
4-5 commission shall forward the computations to the comptroller not
4-6 later than the first day of the month after the month the
4-7 commission performs the computations required by this subsection.
4-8 (b) The comptroller shall issue to each county a warrant
4-9 drawn on the mixed beverage tax clearance fund in the amount of
4-10 10.7143 percent of receipts from permit holders that are outside of
4-11 any municipality within the county during the preceding quarter and
4-12 shall issue to each municipality a warrant drawn on that fund in
4-13 the amount of 10.7143 percent of receipts from permit holders
4-14 within the municipality during the preceding quarter. The
4-15 comptroller shall transfer the remainder of the receipts for that
4-16 quarter and all interest earned on money in the fund to the general
4-17 revenue fund.
4-18 Sec. 202.62. CONFLICT OF RULES. If a rule or policy adopted
4-19 by the commission conflicts with a rule adopted by the comptroller
4-20 for the application, enforcement, or collection of the tax imposed
4-21 by this chapter, the comptroller's rule prevails. A conflicting
4-22 rule or policy adopted by the commission is invalid to the extent
4-23 of the inconsistency. If the comptroller determines that a rule or
4-24 policy adopted by the commission conflicts with one adopted by the
4-25 comptroller relating to the application, enforcement, or collection
4-26 of the tax imposed by this chapter, the comptroller shall notify
4-27 the commission in writing of the determination. After receipt of
5-1 the notification, the commission shall amend or repeal the
5-2 conflicting rule or policy not later than the 90th day after the
5-3 date of notification.
5-4 Sec. 202.63. SECURITY REQUIREMENT. (a) A permit holder
5-5 subject to the tax imposed by this chapter must comply with the
5-6 security requirements imposed by Chapter 151, Tax Code, except that
5-7 a permit holder is not required to comply with Section 151.253(b),
5-8 Tax Code.
5-9 (b) The total of bonds, certificates of deposit, letters of
5-10 credit, or other security required of a permit holder subject to
5-11 the tax imposed by this chapter must be in an amount that the
5-12 commission determines to be sufficient to protect the fiscal
5-13 interests of the state, except the commission may not set the
5-14 amount of security at less than $1,000 or more than $25,000.
5-15 Sec. 202.64. AUDIT FREQUENCY. (a) The commission shall
5-16 have the discretion to determine the frequency of mixed beverage
5-17 tax audits. In determining the frequency of audits the commission
5-18 may consider the following factors:
5-19 (1) reasonable and prudent accounting standards;
5-20 (2) the audit history of the permit holder;
5-21 (3) the effect on state revenues; and
5-22 (4) other factors the commission considers
5-23 appropriate.
5-24 (b) When additional taxes are established as due based on an
5-25 audit by the commission, a penalty equal to 10 percent of the
5-26 additional taxes due shall be collected with the additional taxes
5-27 due.
6-1 Sec. 202.65. CREDITS AND REFUNDS FOR BAD DEBTS. (a) A
6-2 permit holder may withhold the payment of the tax on a portion of
6-3 the gross receipts that remains unpaid by a purchaser if:
6-4 (1) during the reporting period in which the mixed
6-5 beverage is sold, the permit holder determines that the unpaid
6-6 portion will remain unpaid;
6-7 (2) the permit holder enters the unpaid portion of the
6-8 sales gross receipts in the permit holder's books as a bad debt;
6-9 and
6-10 (3) the bad debt is claimed as a deduction for federal
6-11 tax purposes during the same or a subsequent reporting period.
6-12 (b) If the portion of a debt determined to be bad under
6-13 Subsection (a) is paid, the permit holder shall report and pay the
6-14 tax on the portion during the reporting period in which payment is
6-15 made.
6-16 (c) A permit holder is entitled to credit or reimbursement
6-17 for taxes paid on the portion of the gross receipts determined to
6-18 be worthless and actually charged off for federal income tax
6-19 purposes.
6-20 (Sections 202.66-202.80 reserved for expansion
6-21 SUBCHAPTER E. PENALTY PROVISIONS
6-22 Sec. 202.81. CIVIL PENALTY FOR FAILURE TO FILE OR PAY. If a
6-23 permit holder fails to file a return or to pay to the commission
6-24 the tax as required by this chapter when the return or payment is
6-25 due, the permit holder shall forfeit an amount equal to five
6-26 percent of the amount due as a penalty, and after 30 days the
6-27 penalty is increased to 10 percent of the amount due.
7-1 Sec. 202.82. CRIMINAL PENALTY FOR VIOLATIONS. (a) A person
7-2 commits an offense if the person:
7-3 (1) fails to keep a record as required by this
7-4 chapter;
7-5 (2) fails to file a return as required by this
7-6 chapter;
7-7 (3) keeps a false record; or
7-8 (4) files a false return.
7-9 (b) An offense under this section is punishable by:
7-10 (1) a fine of not more than $1,000;
7-11 (2) by confinement in the county jail for not more
7-12 than 30 days; or
7-13 (3) by both a fine and confinement.
7-14 Sec. 202.83. CRIMINAL PENALTY FOR AGGRAVATED VIOLATIONS.
7-15 (a) A person commits an offense if the person knowingly:
7-16 (1) fails to keep any record as required by this
7-17 chapter;
7-18 (2) fails to file a return as required by this
7-19 chapter;
7-20 (3) keeps a false record; or
7-21 (4) files a false return.
7-22 (b) An offense under this section is punishable by:
7-23 (1) a fine of not less than $500 or more than $1,000;
7-24 and
7-25 (2) confinement in the county jail for not less than
7-26 30 days or more than two years.
7-27 (c) The commission shall cancel the permit of a permit
8-1 holder found by the commission, after notice and hearing, to have
8-2 violated or have been convicted of violating this section.
8-3 Sec. 202.84. SUMMARY SUSPENSION. (a) If a permit holder
8-4 fails to file a return or make a tax payment as required by this
8-5 chapter, the commission may summarily suspend the permit without a
8-6 hearing. Chapter 2001, Government Code, does not apply to the
8-7 commission in the enforcement and administration of this section.
8-8 (b) A suspension under this section takes effect on the
8-9 third day after the date the notice of suspension is given. The
8-10 notice shall be given to the permit holder or the holder's agent,
8-11 servant, or employee by registered or certified mail if not given
8-12 in person.
8-13 (c) The commission shall terminate a suspension made under
8-14 this section when the permit holder files the required returns and
8-15 makes the required tax payments, including payment of any penalties
8-16 that are due.
8-17 Sec. 202.85. VIOLATORS INELIGIBLE FOR PERMIT. (a) The
8-18 commission may not issue a mixed beverage, daily temporary mixed
8-19 beverage, or private club registration permit to:
8-20 (1) a person whose permit was canceled for a violation
8-21 of Section 28.06(c) or 202.83;
8-22 (2) a person who held an interest of any kind in a
8-23 permit that was canceled for a violation of Section 28.06(c) or
8-24 202.83;
8-25 (3) a person who held 50 percent or more of the stock,
8-26 either in the person's own name or by any other means, of a
8-27 corporation whose permit was canceled because of a violation of
9-1 Section 28.06(c) or 202.83;
9-2 (4) a corporation if any person holding more than 50
9-3 percent or more of the stock, either in the person's own name or by
9-4 any other means, is disqualified from obtaining a permit in the
9-5 person's individual capacity because of a violation of Section
9-6 28.06(c) or 202.83; or
9-7 (5) a person residentially domiciled with a person who
9-8 is barred from obtaining a permit because of a violation of Section
9-9 28.06(c) or 202.83.
9-10 (b) For the purposes of this section, a person holds 50
9-11 percent or more of the stock in a corporation if the person and the
9-12 person's parents, children, and siblings, and all persons with whom
9-13 the person is residentially domiciled, together own 50 percent or
9-14 more of the stock in the corporation.
9-15 SECTION 2. Chapter 183, Tax Code, is repealed.
9-16 SECTION 3. (a) This Act takes effect January 1, 1998.
9-17 (b) To prepare for the transfer of the administration of the
9-18 mixed beverage tax from the comptroller of public accounts to the
9-19 Texas Alcoholic Beverage Commission on the effective date of this
9-20 Act, the commission and the comptroller may enter into any
9-21 agreement they consider advisable for the use or transfer of funds,
9-22 appropriations, personnel, furniture, equipment, office space, or
9-23 other items or services between the commission and the comptroller.
9-24 (c) On January 1, 1998, all employees, records, and property
9-25 of the comptroller relating to the mixed beverage tax shall be
9-26 transferred to the Texas Alcoholic Beverage Commission. Before
9-27 that date, the comptroller may transfer any records, employees, or
10-1 property of the comptroller to the Texas Alcoholic Beverage
10-2 Commission in preparation for the transfer of the administration of
10-3 the mixed beverage tax to the commission.
10-4 (d) A change in law made by this Act does not affect the
10-5 validity of any action or proceeding initiated before the effective
10-6 date of this Act.
10-7 SECTION 4. The importance of this legislation and the
10-8 crowded condition of the calendars in both houses create an
10-9 emergency and an imperative public necessity that the
10-10 constitutional rule requiring bills to be read on three several
10-11 days in each house be suspended, and this rule is hereby suspended.