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Floor Packet Page No. 106                                                   

	
Amend CSHB 3 (House Committee Printing), in SECTION 2.01, by 
adding the following sections to Chapter 251, Tax Code, as added by 
that SECTION:
	Sec. 251.0071.  MAXIMUM AND MINIMUM AMOUNTS.  (a)  
Notwithstanding any other provision of this chapter:
		(1)  the maximum amount a taxable business is required 
to pay under this chapter for a calendar quarter, regardless of the 
amount of wages paid to all employees for a calendar quarter, is 
equal to eight percent of net taxable earned surplus of the business 
for the quarter; and
		(2)  the minimum amount a taxable business is required 
to pay under this chapter for a calendar quarter, regardless of the 
amount of wages paid to all employees for a calendar quarter, is the 
greater of:
			(1)  0.6 percent of the base amount of wages for 
each employee as determined under Section 251.007; or
			(2) 4.5 percent of net taxable earned surplus of 
the business for the quarter.
	(b)  Net taxable earned surplus is computed for the purpose 
of Subsection (a) as provided by Sections 251.0072 through 
251.0078.
	Sec. 251.0072.  DETERMINATION OF GROSS RECEIPTS FROM 
BUSINESS DONE IN THIS STATE FOR TAXABLE EARNED SURPLUS.  (a)  
Except for the gross receipts of a taxable business that are subject 
to Section 251.0075, in apportioning taxable earned surplus, the 
gross receipts of a taxable business from its business done in this 
state is the sum of the taxable business's receipts from:
		(1)  each sale of tangible personal property if the 
property is delivered or shipped to a buyer in this state regardless 
of the FOB point or another condition of the sale, and each sale of 
tangible personal property shipped from this state to a purchaser 
in another state in which the seller is not subject to any tax on, or 
measured by, net income, without regard to whether the tax is 
imposed;
		(2)  each service performed in this state;                             
		(3)  each rental of property situated in this state;                   
		(4)  the use of a patent, copyright, trademark, 
franchise, or license in this state;
		(5)  each sale of real property located in this state, 
including royalties from oil, gas, or other mineral interests;
		(6)  each partnership or joint venture to the extent 
provided by Subsection (c); and
		(7)  other business done in this state.                                
	(b)  A taxable business shall deduct from its gross receipts 
computed under Subsection (a) any amount to the extent included 
under Subsection (a) because of the application of Section 78 or 
Sections 951-964, Internal Revenue Code, any amount excludable 
under Section 251.0076, and dividends received from a subsidiary, 
associate, or affiliated entity that does not transact a 
substantial portion of its business or regularly maintain a 
substantial portion of its assets in the United States.
	(c)  A taxable business shall include in its gross receipts 
computed under Subsection (a) the taxable business's share of the 
gross receipts of each partnership and joint venture of which the 
taxable business is a part apportioned to this state as though the 
taxable business directly earned the receipts, including receipts 
from business done with the taxable business.
	(d)  A taxable business that is a transportation company that 
transports goods or passengers by air shall include in its gross 
receipts computed under Subsection (a) any intrastate portion or 
leg of an interstate delivery or trip.
	Sec. 251.0073.  DETERMINATION OF GROSS RECEIPTS FROM ENTIRE 
BUSINESS FOR TAXABLE EARNED SURPLUS.  (a)  Except for the gross 
receipts of a taxable business that are subject to the provisions of 
Section 251.0075, in apportioning taxable earned surplus, the gross 
receipts of a taxable business from its entire business is the sum 
of the taxable business's receipts from:
		(1)  each sale of the taxable business's tangible 
personal property; 
		(2)  each service, rental, or royalty;                                 
		(3)  each partnership and joint venture as provided by 
Subsection (d); and
		(4)  other business.                                                   
	(b)  If a taxable business sells an investment or capital 
asset, the taxable business's gross receipts from its entire 
business for taxable earned surplus includes only the net gain from 
the sale.
	(c)  A taxable business shall deduct from its gross receipts 
computed under Subsection (a) any amount to the extent included in 
Subsection (a) because of the application of Section 78 or Sections 
951-964, Internal Revenue Code, any amount excludable under Section 
251.0076, and dividends received from a subsidiary, associate, or 
affiliated entity that does not transact a substantial portion of 
its business or regularly maintain a substantial portion of its 
assets in the United States.
	(d)  A taxable business shall include in its gross receipts 
computed under Subsection (a) the taxable business's share of the 
gross receipts of each partnership and joint venture of which the 
taxable business is a part.
	Sec. 251.0074.  APPORTIONMENT OF TAXABLE EARNED SURPLUS TO 
THIS STATE.  (a)  Except as provided by Subsections (b) and (c), a 
taxable business's taxable earned surplus is apportioned to this 
state to determine the business's maximum tax liability under 
Section 251.0071(a)(1) by multiplying the taxable earned surplus by 
a fraction, the numerator of which is the taxable business's gross 
receipts from business done in this state, as determined under 
Section 251.0072, and the denominator of which is the taxable 
business's gross receipts from its entire business, as determined 
under Section 251.0073.
	(b)  A taxable business's taxable earned surplus that is 
derived, directly or indirectly, from the sale of management, 
distribution, or administration services to or on behalf of a 
regulated investment company, including a taxable business that 
includes trustees or sponsors of employee benefit plans that have 
accounts in a regulated investment company, is apportioned to this 
state to determine the business's maximum tax liability under 
Section 251.0071(a)(1) by multiplying the taxable business's total 
taxable earned surplus from the sale of services to or on behalf of 
a regulated investment company by a fraction, the numerator of 
which is the average of the sum of shares owned at the beginning of 
the year and the sum of shares owned at the end of the year by the 
investment company shareholders who are commercially domiciled in 
this state or, if the shareholders are individuals, are residents 
of this state, and the denominator of which is the average of the 
sum of shares owned at the beginning of the year and the sum of 
shares owned at the end of the year by all investment company 
shareholders.  The taxable business shall make a separate 
computation to allocate taxable capital and earned surplus.  In 
this subsection, "regulated investment company" has the meaning 
assigned by Section 851(a), Internal Revenue Code.
	(c)  A taxable business's taxable earned surplus that is 
derived, directly or indirectly, from the sale of management, 
administration, or investment services to an employee retirement 
plan is apportioned to this state to determine the business's 
maximum tax liability under Section 251.0071(a)(1) by multiplying 
the taxable business's total taxable earned surplus from the sale 
of services to an employee retirement plan by a fraction, the 
numerator of which is the average of the sum of beneficiaries 
domiciled in Texas at the beginning of the year and the sum of 
beneficiaries domiciled in Texas at the end of the year, and the 
denominator of which is the average of the sum of all beneficiaries 
at the beginning of the year and the sum of all beneficiaries at the 
end of the year.  In this section, "employee retirement plan" means 
a plan or other arrangement that is qualified under Section 401(a), 
Internal Revenue Code, or satisfies the requirements of Section 
403, Internal Revenue Code, or a governmental plan described in 
Section 414(d), Internal Revenue Code.  The term does not include an 
individual retirement account or individual retirement annuity 
within the meaning of Section 408, Internal Revenue Code.
	(d)  A banking corporation shall exclude from the numerator 
of the bank's apportionment factor interest earned on federal funds 
and interest earned on securities sold under an agreement to 
repurchase that are held in this state in a correspondent bank that 
is domiciled in this state.  In this subsection, "correspondent" 
has the meaning assigned by 12 C.F.R. Section 206.2(c).
	(e)  Receipts from services that a defense readjustment 
project performs in a defense economic readjustment zone are not 
receipts from business done in this state.
	Sec. 251.0075.  ALLOCATION OF CERTAIN TAXABLE EARNED SURPLUS 
TO THIS STATE.  An item of income included in a taxable business's 
taxable earned surplus, except that portion derived from dividends 
and interest, that a state, other than this state, or a country, 
other than the United States, cannot tax because the activities 
generating that item of income do not have sufficient unitary 
connection with the taxable business's other activities conducted 
within that state or country under the United States Constitution 
is allocated to this state if the taxable business's commercial 
domicile is in this state.  Income that can only be allocated to the 
state of commercial domicile because the income has insufficient 
unitary connection with any other state or country shall be 
allocated to this state or another state or country net of expenses 
related to that income.  A portion of a taxable business's taxable 
earned surplus allocated to this state under this section may not be 
apportioned under Section 251.0076(a)(2).
	Sec. 251.0076.  DETERMINATION OF NET TAXABLE EARNED SURPLUS 
FOR PURPOSE OF MAXIMUM TAX.  (a)  The net taxable earned surplus of a 
taxable business for the purpose of determining the business's 
maximum tax liability under Section 251.0071(a)(1) is computed by:
		(1)  determining the taxable business's reportable 
federal taxable income, subtracting from that amount any amount 
excludable under Subsection (i), any amount included in reportable 
federal taxable income under Section 78 or Sections 951-964, 
Internal Revenue Code, and dividends received from a subsidiary, 
associate, or affiliated corporation that does not transact a 
substantial portion of its business or regularly maintain a 
substantial portion of its assets in the United States, and adding 
to that amount any compensation of officers or directors, or if a 
bank, any compensation of directors and executive officers, to the 
extent excluded in determining federal taxable income to determine 
the taxable business's taxable earned surplus;
		(2)  apportioning the taxable business's taxable earned 
surplus to this state as provided by Section 251.0074 to determine 
the taxable business's apportioned taxable earned surplus;
		(3)  adding the taxable business's taxable earned 
surplus allocated to this state as provided by Section 251.0075; 
and
		(4)  subtracting from that amount any allowable 
deductions and any business loss that is carried forward to the tax 
reporting period and deductible under Subsection (e).
	(b)  A corporation's reportable federal taxable income is 
the corporation's federal taxable income after Schedule C special 
deductions and before net operating loss deductions as computed 
under the Internal Revenue Code.
	(c)  Reportable federal taxable income for a partnership is 
an amount equal to the sum of:
		(1)  the partnership's income as an entity as 
determined under rules adopted by the commission using principles 
similar to the standards applied to a corporation; and
		(2)  20 percent of partner earnings.                                   
	(d)  Reportable federal taxable income for an entity other 
than a corporation or partnership is determined under rules adopted 
by the commission using principles similar to the standards applied 
to a corporation.
	(e)  For purposes of this section, a business loss is any 
negative amount after apportionment and allocation.  The business 
loss shall be carried forward to the year succeeding the loss year 
as a deduction to net taxable earned surplus, then successively to 
the succeeding four taxable years after the loss year or until the 
loss is exhausted, whichever occurs first, but for not more than 
five taxable years after the loss year.  A business loss can be 
carried forward only by the taxable business that incurred the loss 
and cannot be transferred to or claimed by any other entity, 
including the survivor of a merger if the loss was incurred by the 
taxable business that did not survive the merger.
	(f)  A taxable business may use either the "first in-first 
out" or "last in-first out" method of accounting to compute its net 
taxable earned surplus, but only to the extent that the taxable 
business used that method on its most recent federal income tax 
report originally due on or before the date on which the taxable 
business's franchise tax report is originally due.
	(g)  For purposes of this section, any person designated as 
an officer is presumed to be an officer if that person:
		(1)  holds an office created by the board of directors 
or under the corporate charter or bylaws; and
		(2)  has legal authority to bind the taxable business 
with third parties by executing contracts or other legal documents.
	(h)  A taxable business may rebut the presumption described 
in Subsection (g) that a person is an officer if it conclusively 
shows, through the person's job description or other documentation, 
that the person does not participate or have authority to 
participate in significant policy-making aspects of the corporate 
operations.
	(i)  Dividends and interest received from federal 
obligations are not included in earned surplus or gross receipts 
for earned surplus purposes.
	(j)  In this section:                                                   
		(1)  "Federal obligations" means:                                      
			(A)  stocks and other direct obligations of, and 
obligations unconditionally guaranteed by, the United States 
government and United States government agencies; and
			(B)  direct obligations of a United States 
government-sponsored agency.
		(2)  "Obligation" means any bond, debenture, security, 
mortgage-backed security, pass-through certificate, or other 
evidence of indebtedness of the issuing entity.  The term does not 
include a deposit, a repurchase agreement, a loan, a lease, a 
participation in a loan or pool of loans, a loan collateralized by 
an obligation of a United States government agency, or a loan 
guaranteed by a United States government agency.
		(3)  "United States government" means any department or 
ministry of the federal government, including a federal reserve 
bank.  The term does not include a state or local government, a 
commercial enterprise owned wholly or partly by the United States 
government, or a local governmental entity or commercial enterprise 
whose obligations are guaranteed by the United States government.
		(4)  "United States government agency" means an 
instrumentality of the United States government whose obligations 
are fully and explicitly guaranteed as to the timely payment of 
principal and interest by the full faith and credit of the United 
States government.  The term includes the Government National 
Mortgage Association, the Department of Veterans Affairs, the 
Federal Housing Administration, the Farmers Home Administration, 
the Export-Import Bank, the Overseas Private Investment 
Corporation, the Commodity Credit Corporation, the Small Business 
Administration, and any successor agency.
		(5)  "United States government-sponsored agency" means 
an agency originally established or chartered by the United States 
government to serve public purposes specified by the United States 
Congress but whose obligations are not explicitly guaranteed by the 
full faith and credit of the United States government.  The term 
includes the Federal Home Loan Mortgage Corporation, the Federal 
National Mortgage Association, the Farm Credit System, the Federal 
Home Loan Bank System, the Student Loan Marketing Association, and 
any successor agency.
	Sec. 251.0077.  GROSS RECEIPTS FOR TAXABLE EARNED SURPLUS.  
(a)  For purposes of this section, "gross receipts" means all 
revenue reportable by a taxable business on its federal tax return, 
without deduction for the cost of property sold, materials used, 
labor performed, or other costs incurred, unless otherwise 
specifically provided in this chapter. "Gross receipts" does not 
include revenue that is not included in taxable earned surplus.  For 
example, Schedule C special deductions and any amounts subtracted 
from reportable federal taxable income under Section 
251.0076(a)(1) are not included in taxable earned surplus and 
therefore are not considered gross receipts.
	(b)  Except as otherwise provided by this section, a taxable 
business shall use the same accounting methods to apportion taxable 
earned surplus as used in computing reportable federal taxable 
income.
	(c)  A taxable business may not change its accounting methods 
used to calculate gross receipts more often than once every four 
years without the express written consent of the commission.  A 
change in accounting methods is not justified solely because it 
results in a reduction of tax liability.
	(d)  A taxable business's share of a partnership's gross 
receipts that is included in the taxable business's federal taxable 
income must be used in computing the taxable business's gross 
receipts under this section.  Unless otherwise provided by this 
chapter, a taxable business may not deduct costs incurred from the 
taxable business's share of a partnership's gross receipts.  The 
gross receipts must be apportioned as though the taxable business 
directly earned them.
	Sec. 251.0078.  UNITARY BUSINESS ENTERPRISE.  (a)  
Notwithstanding any other provision of this chapter, in determining 
the net taxable earned surplus of a taxable business under Section 
251.0071, if the taxable business is part of a unitary business 
enterprise or has an ownership interest in a unitary business 
enterprise, the taxable business shall file a combined report based 
on the unitary business enterprise.
	(b)  The combined report must determine the net taxable 
earned surplus of the unitary business enterprise as if it were a 
single business entity.
	(c)  The taxable earned surplus shall be apportioned as 
otherwise provided under Section 251.0074, except that gross 
receipts shall be determined on the basis of the unitary business 
enterprise.  Each taxable business that is part of the unitary 
business enterprise shall be jointly and severally liable for the 
net taxable earned surplus of the unitary business as so determined 
and apportioned.
	(d)  In this section, "unitary business enterprise" means a 
single economic enterprise that is made up of a commonly controlled 
group of business entities that are sufficiently interdependent, 
integrated, and interrelated through their activities so as to 
provide a synergy and mutual benefit that produces a sharing or 
exchange of value among them and a significant flow of value to the 
separate parts.
	(e)  The comptroller shall adopt rules to implement this 
section.