By:  Armbrister                                        S.B. No. 861

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to the administration of franchise taxes; imposing

 1-2     penalties.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Subdivisions (3) and (5), Subsection (b), Section

 1-5     171.001, Tax Code, are amended to read as follows:

 1-6                 (3)  "Corporation" includes:

 1-7                       (A)  a limited liability company, as defined

 1-8     under the Texas Limited Liability Company Act; [and]

 1-9                       (B)  a state or federal savings and loan

1-10     association; and

1-11                       (C)  a banking corporation.

1-12                 (5)  "Internal Revenue Code" means the Internal Revenue

1-13     Code of 1986 in effect for the federal tax year beginning on or

1-14     after January 1, 1996 [1994], and before January 1, 1997 [1995],

1-15     and any regulations adopted under that code applicable to that

1-16     period.

1-17           SECTION 2.  Subsections (b) and (d), Section 171.002, Tax

1-18     Code, are amended to read as follows:

1-19           (b)  The amount of franchise tax on each corporation[, except

1-20     as provided in Subsection (d),] is computed by adding the

1-21     following:

1-22                 (1)  the amount calculated by applying the tax rate

1-23     prescribed by Subsection (a)(1) to the corporation's net taxable

 2-1     capital; and

 2-2                 (2)  the difference between:

 2-3                       (A)  the amount calculated by applying the tax

 2-4     rate prescribed by Subsection (a)(2) to the corporation's net

 2-5     taxable earned surplus; and

 2-6                       (B)  the amount determined under Subdivision (1).

 2-7           (d)  If the amount of tax computed [under Subsection (b)] for

 2-8     a corporation is less than $100, the corporation is not required to

 2-9     pay that amount and is not considered to owe any tax for that

2-10     period.

2-11           SECTION 3.  Subsection (c), Section 171.063, Tax Code, is

2-12     amended to read as follows:

2-13           (c)  A corporation's exemption under Subsection (b) of this

2-14     section is [may be] established by furnishing the comptroller with

2-15     a copy of the Internal Revenue Service's letter of exemption issued

2-16     to the corporation.  The copy of the letter must [may] be filed

2-17     with the comptroller within 15 months after the day that is the

2-18     last day of a calendar month and that is nearest to the date of the

2-19     corporation's charter or certificate of authority.

2-20           SECTION 4.  Section 171.102, Tax Code, is amended by adding

2-21     Subsection (d) to read as follows:

2-22           (d)  This section applies only to the computation of a

2-23     corporation's taxable capital under Section 171.101 of this code.

2-24           SECTION 5.  Section 171.103, Tax Code, is  amended to read as

2-25     follows:

 3-1           Sec. 171.103.  DETERMINATION OF GROSS RECEIPTS FROM BUSINESS

 3-2     DONE IN THIS STATE FOR TAXABLE CAPITAL.  In apportioning taxable

 3-3     capital, the gross receipts of a corporation from its business done

 3-4     in this state is the sum of the corporation's receipts from:

 3-5                 (1)  each sale of tangible personal property if the

 3-6     property is delivered or shipped to a buyer in this state

 3-7     regardless of the FOB point or another condition of the sale, and

 3-8     each sale of tangible personal property shipped from this state to

 3-9     a purchaser in another state in which the seller is not subject to

3-10     taxation;

3-11                 (2)  each service performed in this state;

3-12                 (3)  each rental of property situated in this state;

3-13                 (4)  [each royalty for] the use of a patent, [or]

3-14     copyright, trademark, franchise, or license in this state; [and]

3-15                 (5)  each sale of real property located in this state,

3-16     including royalties from oil, gas, or other mineral interests; and

3-17                 (6)  other business done in this state.

3-18           SECTION 6.  Subsection (a), Section 171.1032, Tax Code, is

3-19     amended to read as follows:

3-20           (a)  Except for the gross receipts of a corporation that are

3-21     subject to the provisions of Section 171.1061, in apportioning

3-22     taxable earned surplus, the gross receipts of a corporation from

3-23     its business done in this state is the sum of the corporation's

3-24     receipts from:

3-25                 (1)  each sale of tangible personal property if the

 4-1     property is delivered or shipped to a buyer in this state

 4-2     regardless of the FOB point or another condition of the sale, and

 4-3     each sale of tangible personal property shipped from this state to

 4-4     a purchaser in another state in which the seller is not subject to

 4-5     any tax on, or measured by, net income, without regard to whether

 4-6     the tax is imposed;

 4-7                 (2)  each service performed in this state;

 4-8                 (3)  each rental of property situated in this state;

 4-9                 (4)  [each royalty for] the use of a patent, [or]

4-10     copyright, trademark, franchise, or license in this state; [and]

4-11                 (5)  each sale of real property located in this state,

4-12     including royalties from oil, gas, or other mineral interests; and

4-13                 (6)  other business done in this state.

4-14           SECTION 7.  Subsection (c), Section 171.106, Tax Code, is

4-15     amended to read as follows:

4-16           (c)  A corporation's taxable capital or earned surplus that

4-17     is derived, directly or indirectly, from the sale of management,

4-18     distribution, or administration services to or on behalf of a

4-19     regulated investment company, including a corporation that includes

4-20     trustees or sponsors of employee benefit plans that have accounts

4-21     in a regulated investment company, is apportioned to this state to

4-22     determine the amount of the tax imposed under Section 171.002 by

4-23     multiplying the corporation's total taxable capital or earned

4-24     surplus from the sale of services to or on behalf of a regulated

4-25     investment company by a fraction, the numerator of which is the

 5-1     average of the sum of shares owned at the beginning of the year and

 5-2     the sum of shares owned at the end of the year by the investment

 5-3     company shareholders who are commercially domiciled in this state

 5-4     or, if the shareholders are individuals, are residents of this

 5-5     state and the  denominator of which is the average of the sum of

 5-6     shares owned at the beginning of the year and the sum of shares

 5-7     owned at the end of the year by all investment company

 5-8     shareholders.  The corporation shall make a separate computation to

 5-9     allocate taxable capital and earned surplus.  In this subsection,

5-10     "regulated investment company" has the meaning assigned by Section

5-11     851(a), Internal Revenue Code.

5-12           SECTION 8.  Subsection (d), Section 171.109, Tax Code, is

5-13     amended to read as follows:

5-14           (d)  A corporation shall report its surplus based solely on

5-15     its own financial condition.  Consolidated reporting of [the]

5-16     surplus [of related corporations] is prohibited.

5-17           SECTION 9.  Section 171.110, Tax Code, is amended by adding

5-18     Subsection (h) to read as follows:

5-19           (h)  A corporation shall report its net taxable earned

5-20     surplus based solely on its own financial condition.  Consolidated

5-21     reporting is prohibited.

5-22           SECTION 10.  Subsection (d), Section 171.112, Tax Code, is

5-23     amended to read as follows:

5-24           (d)  A corporation shall report its gross receipts based

5-25     solely on its own financial condition.  Consolidated reporting [of

 6-1     related corporations] is prohibited.

 6-2           SECTION 11.  Subsection (c), Section 171.1121, Tax Code, is

 6-3     amended to read as follows:

 6-4           (c)  A corporation shall report its gross receipts based

 6-5     solely on its own financial condition.  Consolidated reporting [of

 6-6     related corporations] is prohibited.

 6-7           SECTION 12.  Section 171.202, Tax Code, is amended by

 6-8     amending Subsections (c), (d), and (e) and adding Subsection (i) to

 6-9     read as follows:

6-10           (c)  The comptroller shall grant an extension of time to a

6-11     corporation that is not required by rule to make its tax payments

6-12     by electronic funds transfer for the filing of a report required by

6-13     this section to any date on or before the next November 15, if a

6-14     corporation:

6-15                 (1)  requests the extension, on or before May 15, on a

6-16     form provided by the comptroller; and

6-17                 (2)  remits with the request:

6-18                       (A)  not less than 90 percent of the amount of

6-19     tax reported as due on the report filed on or before November 15;

6-20     or

6-21                       (B)  100 percent of the tax reported as due for

6-22     [paid in] the previous calendar year on the report due in the

6-23     previous calendar year and filed on or before May 14.

6-24           (d)  In the case of a taxpayer whose previous return was its

6-25     initial report, the optional payment provided under Subsection

 7-1     (c)(2)(B) or (e)(2)(B) must be equal to the greater of:

 7-2                 (1)  an amount produced by multiplying the net taxable

 7-3     capital, as reported [required to be shown] on the initial report

 7-4     filed on or before May 14, by the rate of tax in Section

 7-5     171.002(a)(1) that [which] is effective January 1 of the year in

 7-6     which the report is due; or

 7-7                 (2)  an [the] amount produced by multiplying the [paid

 7-8     on] net taxable earned surplus, as reported [required] on the

 7-9     initial report filed on or before May 14, by the rate of tax in

7-10     Section 171.002(a)(2) that is effective January 1 of the year in

7-11     which the report is due.

7-12           (e)  The comptroller shall grant an extension of time for the

7-13     filing of a report required by this section by a corporation

7-14     required by rule to make its tax payments by electronic funds

7-15     transfer to any date on or before the next August 15, if the

7-16     corporation:

7-17                 (1)  requests the extension, on or before May 15, on a

7-18     form provided by the comptroller; and

7-19                 (2)  remits with the request:

7-20                       (A)  not less than 90 percent of the amount of

7-21     tax reported as due on the report filed on or before August 15; or

7-22                       (B)  100 percent of the tax reported as due for

7-23     [paid in] the previous calendar year on the report due in the

7-24     previous calendar year and filed on or before May 14.

7-25           (i)  If a corporation requesting an extension under

 8-1     Subsection (c) or (e) does not file the report due in the previous

 8-2     calendar year on or before May 14, the corporation may not receive

 8-3     an extension under Subsection (c) or (e) unless the corporation

 8-4     complies with Subsection (c)(2)(A) or (e)(2)(A), as appropriate.

 8-5           SECTION 13.  Subsection (d), Section 171.203, Tax Code, is

 8-6     amended to read as follows:

 8-7           (d)  The corporation shall send a copy of the report to each

 8-8     person named in the report under Subsection (a)(3) who is not

 8-9     currently employed by the corporation or a related corporation

8-10     listed in Subsection (a)(1) or (2).  An officer or director of the

8-11     corporation or another authorized person must sign the report under

8-12     a certification that:

8-13                 (1)  all information contained in the report is true

8-14     and correct to the best of the person's [officer's] knowledge; and

8-15                 (2)  a copy of the report has been mailed to each

8-16     person identified in this subsection on the date the return is

8-17     filed.

8-18           SECTION 14.  Subchapter E, Chapter 171, Tax Code, is amended

8-19     by adding Section 171.212 to read as follows:

8-20           Sec. 171.212.  REPORT OF CHANGES TO FEDERAL INCOME TAX

8-21     RETURN.  (a)  A corporation must file an amended report under this

8-22     chapter if:

8-23                 (1)  the corporation's net taxable earned surplus is

8-24     changed as the result of an audit or other adjustment by the

8-25     Internal Revenue Service or another competent authority; or

 9-1                 (2)  the corporation files an amended federal income

 9-2     tax return or other return that changes the corporation's net

 9-3     taxable earned surplus.

 9-4           (b)  The corporation shall file the amended report under

 9-5     Subsection (a)(1) not later than the 120th day after the date the

 9-6     revenue agent's report or other adjustment is final.  For purposes

 9-7     of this subsection, a revenue agent's report or other adjustment is

 9-8     final on the date on which  all administrative appeals with the

 9-9     Internal Revenue Service or other competent authority have been

9-10     exhausted or waived.

9-11           (c)  The corporation shall file the amended report under

9-12     Subsection (a)(2) not later than the 120th day after the date the

9-13     corporation files the amended federal income tax return or other

9-14     return.  For purposes of this subsection, a corporation is

9-15     considered to have filed an amended federal income tax return if

9-16     the corporation is a member of an affiliated group during a period

9-17     in which an amended consolidated federal income tax report is

9-18     filed.

9-19           (d)  If a corporation fails to comply with this section, the

9-20     corporation is liable for a penalty of 10 percent of the tax that

9-21     should have been reported under this section and that had not

9-22     previously been reported to the comptroller.  The penalty

9-23     prescribed by this subsection is in addition to any other penalty

9-24     provided by law.

9-25           SECTION 15.  (a)  Except as provided by Subsection (b) of

 10-1    this section, this Act takes effect January 1, 1998, and applies to

 10-2    a report or return originally due on or after that date.

 10-3          (b)  Section 171.212, Tax Code, as added by this Act, takes

 10-4    effect on the earliest date that it may take effect under  Section

 10-5    39, Article III, Texas Constitution.

 10-6          SECTION 16.  The legislature intends that each change in law

 10-7    made to the following sections of the Tax Code by this Act be

 10-8    considered as a clarification of existing law and not imply that

 10-9    the existing law may be construed as inconsistent with the law as

10-10    amended by this Act:

10-11                (1)  171.001(b)(3);

10-12                (2)  171.103(5);

10-13                (3)  171.1032(a)(5);

10-14                (4)  171.106(c);

10-15                (5)  171.109(d);

10-16                (6)  171.110;

10-17                (7)  171.112(d); and

10-18                (8)  171.1121(c).

10-19          SECTION 17.  The importance of this legislation and the

10-20    crowded condition of the calendars in both houses create an

10-21    emergency and an imperative public necessity that the

10-22    constitutional rule requiring bills to be read on three several

10-23    days in each house be suspended, and this rule is hereby suspended,

10-24    and that this Act take effect and be in force according to its

10-25    terms, and it is so enacted.