This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.
78R321 CBH-F
By: Chavez H.B. No. 109
A BILL TO BE ENTITLED
AN ACT
relating to customs brokers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 151.157(a)-(g), Tax Code, are amended
to read as follows:
(a) A customs broker, or an authorized employee of a customs
broker, licensed by the comptroller under this section may issue
documentation for the purpose of showing the exemption of tangible
personal property under Section 151.307(b)(2) only under
procedures established by this section, Section 151.1575, and by
the comptroller by rule.
(b) The comptroller may issue a license to a customs broker
for the purpose described by Subsection (a) for each place of
business of the broker if the broker:
(1) applies to the comptroller for the license;
(2) pays the license fee to [set by] the comptroller in
the amount required by Subsection (c);
(3) posts the bond or security in the amount required
by Subsection (d); and
(4) complies with any rules of the comptroller to
administer this section and to prevent the evasion of the tax under
this chapter and local sales and use taxes.
(c) A customs broker must pay to the comptroller an annual
license fee of $300 for each place of business from which the
customs broker intends to issue exemption certificates. [The
comptroller shall set the fee for a license in an amount that does
not exceed $100 for each customs broker, without regard to whether
the broker has more than one place of business. The fee may be
imposed only once for each broker.] The comptroller shall use the
fees only for the administration of this section, including costs
of materials, labor, and overhead.
(d) The amount of the bond or security required by
Subsection (b)(3) is $5,000, plus an additional $1,000 for each
place of business from which the customs broker intends to issue
exemption certificates [$500, except that the comptroller may
require a customs broker to post additional bond or security in an
amount the comptroller considers necessary to ensure the payment of
the tax under this chapter and local sales and use taxes. The
comptroller may not require a bond or security in an amount greater
than $2,500. The comptroller may not require the customs broker to
post more than one bond or security solely because the broker has
more than one place of business]. The security may be in the form of
cash, a certificate of deposit, a letter of credit, or another
instrument of value.
(e) A customs broker licensed under this section shall make
available to the comptroller, on or after the 15th day after the
date the broker receives written notice from the comptroller, the
customs broker's books and records relating to the business of
issuing documentation certifying the export of tangible personal
property beyond the territorial limits of the United States for
purposes of exempting the property from the taxes imposed by this
chapter. The customs broker shall make available to the
comptroller, without notice from the comptroller, the customs
broker's books and records if the comptroller determines that the
comptroller's ability to administer and enforce effectively the
provisions of this chapter relating to documentation for the
purpose of showing the exemption of tangible personal property
under Section 151.307(b)(2) is jeopardized by providing notice.
The customs broker shall keep the books and records described by
this subsection for at least two years after the date of the last
entry that they contain. The customs broker shall report quarterly
to the comptroller:
(1) the total value of the tangible personal property
and the total amount of the corresponding tax for which the customs
broker issued exemption certificates; and
(2) the total amount of tax refunded in accordance
with exemption certificates.
(f) The comptroller may suspend or revoke a license issued
under this section if the customs broker does not comply with
Section 151.1575(c) or knowingly or intentionally issues
documentation that is false to obtain a refund of taxes paid on
tangible personal property not exported or to assist another person
in obtaining such a refund [for good cause]. The comptroller may
determine the length of suspension or revocation necessary for the
enforcement of this chapter and the comptroller's rules. A
proceeding to suspend or revoke a license under this subsection is a
contested case under Chapter 2001, Government Code. Judicial
review is by trial de novo. The district courts of Travis County
have exclusive original jurisdiction of a suit under this section.
(g) A customs broker may authorize a person to act as an
independent contractor to certify in accordance with Section
151.1575(a)(1) that tangible personal property has been exported
outside of the United States only if the authorization is part of
the written contract and the comptroller in writing approves the
authorization. A customs broker may not authorize a person under
this subsection to prepare documentation for the purpose of showing
the exemption for tangible personal property under Section
151.307(b)(2).
SECTION 2. Subchapter E, Chapter 151, Tax Code, is amended
by adding Section 151.1575 to read as follows:
Sec. 151.1575. REQUIREMENTS RELATING TO ISSUING
DOCUMENTATION SHOWING EXPORTATION OF PROPERTY. (a) A customs
broker licensed by the comptroller or an authorized employee of the
customs broker may issue documentation certifying that delivery of
tangible personal property was made to a point outside the
territorial limits of the United States as required by Section
151.307(b)(2)(B) only if the customs broker or authorized employee:
(1) watches the property cross the border of the
United States;
(2) watches the property being placed on a common
carrier for delivery outside the territorial limits of the United
States; or
(3) verifies that the purchaser is transporting the
property to a destination outside of the territorial limits of the
United States by:
(A) examining a passport, laser visa
identification card, or foreign voter registration picture
identification indicating that the purchaser of the property
resides in a foreign country;
(B) requiring the purchaser to produce the
original receipt for the property;
(C) requiring the purchaser to state the foreign
country destination of the property which must be the foreign
country in which the purchaser resides;
(D) requiring the purchaser to state the date and
time the property is expected to arrive in the foreign country
destination;
(E) requiring the purchaser to state the date and
time the property was purchased, the name and address of the place
at which the property was purchased, the sales price and quantity of
the property, and a description of the property;
(F) requiring the purchaser to sign a form:
(i) stating that the purchaser has provided
the information and documentation required by this subdivision; and
(ii) that contains a notice to the
purchaser that tangible personal property not exported is subject
to taxation under this chapter and the purchaser is liable, in
addition to other possible civil liabilities and criminal
penalties, for payment of an amount equal to the value of the
merchandise if the purchaser improperly obtained a refund of taxes
relating to the property; and
(G) requiring the purchaser to produce the
purchaser's:
(i) Form I-94, Arrival/Departure record, or
its successor, as issued by the United States Immigration and
Naturalization Service; or
(ii) air, land, or water travel
documentation if the customs broker is located in a county that does
not border the United Mexican States.
(b) A customs broker licensed by the comptroller or an
authorized employee of the customs broker may issue and deliver
documentation under Subsection (a) at any time after the tangible
personal property is purchased and the broker or employee completes
the process required by Subsection (a). The documentation must
include:
(1) the name and address of the customs broker;
(2) the license number of the customs broker;
(3) the name and address of the purchaser;
(4) the name and address of the place at which the
property was purchased;
(5) the date and time of the sale;
(6) a description and the quantity of the property;
(7) the sales price of the property;
(8) the foreign country destination of the property,
which may not be the place of export;
(9) the date and time:
(A) at which the customs broker or authorized
employee watched the property cross the border of the United
States;
(B) at which the customs broker or authorized
employee watched the property being placed on a common carrier for
delivery outside the territorial limits of the United States; or
(C) the property is expected to arrive in the
foreign country destination, as stated by the purchaser;
(10) a declaration signed by the customs broker or an
authorized employee of the customs broker stating that the customs
broker is a licensed Texas customs broker; and
(11) an export certification stamp issued by the
comptroller.
(c) The comptroller may require a customs broker to pay the
comptroller the amount of any tax refunded if the customs broker
does not comply with this section, Section 151.157, or the rules
adopted by the comptroller under this section or Section 151.157.
In addition to the amount of the refunded tax, the comptroller may
require the customs broker to pay a penalty in an amount equal to
the amount of the refunded tax, but not less than $500 nor more than
$5,000. The comptroller and the state may deduct any penalties to
be paid by a customs broker from the broker's posted bond.
(d) A proceeding to require a customs broker to pay an
amount under Subsection (c) is a contested case in the same manner
as a proceeding to revoke or suspend a customs broker's license
under Section 151.157(f).
(e) In this section, "customs broker" and "authorized
employee" have the meanings assigned by Section 151.157.
SECTION 3. Sections 151.307(d) and (e), Tax Code, are
amended to read as follows:
(d) A retailer who receives documentation under Subsection
(b)(2) relating to the purchase of tangible personal property
exported beyond the limits of the United States may not refund the
tax paid under this chapter on that purchase before:
(1) the fourth [24th] hour after the hour stated as the
time of export on the documentation, if the retailer is located in a
county that borders the United Mexican States; or
(2) the seventh day after the day stated as the date of
export on the documentation, if the retailer is located in a county
that does not border the United Mexican States.
(e) A retailer who makes a refund before the time prescribed
by Subsection (d) or makes a refund that is undocumented or
improperly documented is liable for the amount of the tax refunded
with interest. The retailer is not liable if the refund is made
erroneously because of a clerical error.
SECTION 4. (a) This Act takes effect January 1, 2004.
(b) The change in law made by this Act does not affect taxes
imposed before the effective date of this Act, and the former law is
continued in effect for purposes of the liability for and
collection of those taxes.