By Thompson                                           H.B. No. 3650
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the taxation of tobacco products other than cigars and
 1-3     cigarettes.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Section 155.001, Tax Code is amend to read as
 1-6     follows:
 1-7           Sec. 155.001.  Definitions. In this chapter:
 1-8                 (1)  "Bonded agent" means a person in this state who is
 1-9     an agent of a person outside this state and receives cigars and
1-10     tobacco products in interstate commerce and stores the cigars and
1-11     tobacco products for distribution or delivery to distributors under
1-12     orders from the person outside this state.
1-13                 (2)  "Cigar" means a roll of fermented tobacco that is
1-14     wrapped in tobacco and the main stream of smoke from which produces
1-15     an alkaline reaction to litmus paper.
1-16                 (3)  "Common carrier" means a motor carrier registered
1-17     under Chapter 643, Transportation Code, or a motor carrier
1-18     operating under a certificate issued by the Interstate Commerce
1-19     Commission or a successor agency to the Interstate Commerce
1-20     Commission.
1-21                 (4)  "Consumer" means a person who possesses tobacco
1-22     products for personal consumption.
1-23                 (5)  "Distributor" means a person who:
 2-1                       (A)  receives tobacco products for the purpose of
 2-2     making a first sale in this state from a manufacturer outside the
 2-3     state or within the state or otherwise brings or causes to be
 2-4     brought into this state tobacco products for sale, use, or
 2-5     consumption;
 2-6                       (B)  manufactures or produces tobacco products;
 2-7     or
 2-8                       (C)  is an importer or import broker.
 2-9                 (6)  "Export warehouse" means a person in this state
2-10     who receives tobacco products from manufacturers and stores the
2-11     tobacco products for the purpose of making sales to authorized
2-12     persons for resale, use, or consumption outside the United States.
2-13                 (7)  "First sale" means, except as otherwise provided
2-14     by this chapter:
2-15                       (A)  the first transfer of possession in
2-16     connection with a purchase, sale, or any exchange for value of
2-17     tobacco products in intrastate commerce;
2-18                       (B)  the first use or consumption of tobacco
2-19     products in this state; or
2-20                       (C)  the loss of tobacco products in this state
2-21     whether through negligence, theft, or other unaccountable loss.
2-22                 (8)  "Importer" or "import broker" means a person who
2-23     ships, transports, or imports into this state tobacco products
2-24     manufactured or produced outside the United States for the purpose
2-25     of making a first sale in this state.
2-26                 (9)  "Manufacturer" means a person who manufactures or
 3-1     produces tobacco products and sells tobacco products to a
 3-2     distributor.
 3-3                 (10)  "Manufacturer's representative" means a person
 3-4     employed by a manufacturer to sell or distribute the manufacturer's
 3-5     tobacco products.
 3-6                 (11)  "Permit holder" means a bonded agent,
 3-7     distributor, wholesaler, or retailer required to obtain a permit
 3-8     under Section 155.041.
 3-9                 (12)  "Place of business" means:
3-10                       (A)  a commercial business location where tobacco
3-11     products are sold;
3-12                       (B)  a commercial business location where tobacco
3-13     products are kept for sale or consumption or otherwise stored; or
3-14                       (C)  a vehicle from which tobacco products are
3-15     sold.
3-16                 (13)  "Purchase Price" means the total amount for which
3-17     the tobacco products are sold to the distributor, valued in money,
3-18     without a deduction for the cost of:
3-19                       (A)  the product sold;
3-20                       (B)  the materials used, labor or service
3-21     employed, interest, losses, or other expenses; and
3-22                       (C)  the transportation of the product.
3-23                       (D)  "Purchase Price" does not include any of the
3-24     following if separately identified to the customer by such means as
3-25     an invoice, billing, sales slip or ticket, or contract:
3-26                             (i)  a cash discount allowed on the
 4-1     purchase;
 4-2                             (ii)  the amount charged for products
 4-3     returned to the purchaser by its customers if the total amount
 4-4     charged is refunded by cash or credit; or
 4-5                             (iii)  finance, carrying, and service
 4-6     charges, or interest from credit extended on sales of products
 4-7     under a conditional sales contract or any other contract providing
 4-8     for the deferred payment for the purchase price.
 4-9                 (14)  "Retailer" means a person who engages in the
4-10     practice of selling tobacco products to consumers and includes the
4-11     owner of a coin-operated vending machine.
4-12                 (15) [(14)]  "Tobacco product" means:
4-13                       (A)  a cigar;
4-14                       (B)  smoking tobacco, including granulated,
4-15     plug-cut, crimp-cut, ready-rubbed, and any form of tobacco suitable
4-16     for smoking in a pipe or as a cigarette;
4-17                       (C)  chewing tobacco, including Cavendish, Twist,
4-18     plug, scrap, and any kind of tobacco suitable for chewing;
4-19                       (D)  snuff or other preparations of pulverized
4-20     tobacco; or
4-21                       (E)  an article or product that is made of
4-22     tobacco or a tobacco substitute and that is not a cigarette.
4-23                 (16) [(15)]  "Wholesaler" means a person, including a
4-24     manufacturer's representative, who sells or distributes tobacco
4-25     products in this state for resale but who is not a distributor.
4-26           SECTION 2.  Amend Section 155.021 to read as follows:
 5-1           Sec. 155.0211.  Tax Imposed on Tobacco Products Other Than
 5-2     Cigars.  (a)  A tax is imposed and becomes due and payable when a
 5-3     distributor in this state [permit holder] receives or possesses
 5-4     tobacco products other than cigars, for the purpose of making a
 5-5     first sale in this state.
 5-6           (b)  The tax rate for tobacco products other than cigars is
 5-7     40 [35.213] percent of the purchase price paid by the distributor
 5-8     in (a) [manufacturer's list price, exclusive of any trade discount,
 5-9     special discount, or deal].