|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to administration, collection, and enforcement of state |
|
taxes; providing penalties. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Subchapter A, Chapter 111, Tax Code, is amended |
|
by adding Section 111.0102 to read as follows: |
|
Sec. 111.0102. SUIT CHALLENGING COLLECTION ACTION. Venue |
|
for and jurisdiction of a suit that challenges or is for the purpose |
|
of avoiding a comptroller collection action or state tax lien in any |
|
manner is exclusively conferred on the district courts of Travis |
|
County. |
|
SECTION 2. Section 111.016, Tax Code, is amended by adding |
|
Subsections (a-1) and (b-1) to read as follows: |
|
(a-1) A person is presumed to have received or collected a |
|
tax or money represented to be a tax for the purpose of this section |
|
if the person files, or causes to be filed, a tax return or report |
|
with the comptroller showing tax due. A person, including a person |
|
who is on the accrual method of accounting, may rebut this |
|
presumption by providing satisfactory documentation to the |
|
comptroller that the tax on a transaction or series of transactions |
|
was not collected. The documentation is subject to verification by |
|
the comptroller. |
|
(b-1) Notwithstanding any other provision of this title, if |
|
the tax liability of a corporation, association, limited liability |
|
company, limited partnership, or other legal entity with which the |
|
responsible individual was employed or associated has either not |
|
become final, is subject to tolling of limitations under Section |
|
111.207, or is the subject of a federal bankruptcy proceeding, the |
|
statute of limitations relating to the period during which the |
|
individual may be personally assessed by the comptroller is stayed |
|
until the first anniversary of the date the liability becomes final |
|
or the date the bankruptcy proceeding is closed or dismissed. |
|
SECTION 3. Section 111.017, Tax Code, is amended to read as |
|
follows: |
|
Sec. 111.017. SEIZURE AND SALE OF PROPERTY. (a) Before the |
|
expiration of three years after a person becomes delinquent in the |
|
payment of any amount under this title, the comptroller may seize |
|
and sell at public auction real and personal property of the person. |
|
A seizure made to collect the tax is limited only to property of the |
|
person that is not exempt from execution. Service or delivery of a |
|
notice of seizure under this section affecting property held by a |
|
financial institution in the name of or on behalf of a delinquent |
|
who is a customer of the financial institution is governed by |
|
Section 59.008, Finance Code. |
|
(b) A person commits an offense if the person obstructs, |
|
hinders, impedes, or interferes with the comptroller's seizure of |
|
the property of a delinquent taxpayer in the following ways: |
|
(1) trespassing on the property of a business or a |
|
business location that has been seized by the comptroller without |
|
the permission of the comptroller or the comptroller's agents; |
|
(2) removing or breaking a lock on a business or |
|
business location that has been seized by the comptroller without |
|
the permission of the comptroller or the comptroller's agents; |
|
(3) removing or causing to be removed any inventory, |
|
equipment, or other property from a business or business location |
|
seized by the comptroller without the permission of the comptroller |
|
or the comptroller's agents; |
|
(4) damaging, destroying, or defacing any inventory, |
|
equipment, or property or the business location of a delinquent |
|
taxpayer while it is under seizure by the comptroller; or |
|
(5) knowingly obstructing, hindering, or impeding the |
|
comptroller or the comptroller's agents in the seizure or securing |
|
of a delinquent taxpayer's property, including the taxpayer's |
|
business location, inventory, or equipment, under this section. |
|
(c) An offense under Subsection (b) is a Class A |
|
misdemeanor. |
|
SECTION 4. Section 111.021, Tax Code, is amended by |
|
amending Subsection (d) and adding Subsection (f-1) to read as |
|
follows: |
|
(d) On receipt of a notice given under this section, the |
|
person receiving the notice: |
|
(1) within 20 days after receiving the notice shall |
|
advise the comptroller of each such asset belonging to the |
|
delinquent or person to whom an unpaid determination applies that |
|
is possessed or controlled by the person receiving the notice and of |
|
each debt owed by the person receiving the notice to the delinquent |
|
person or person to whom an unpaid determination applies; [and] |
|
(2) may not transfer or dispose of the asset or debt |
|
possessed, controlled, or owed by the person at the time the person |
|
received the notice for a period of 60 days after receipt of the |
|
notice, unless the comptroller consents to an earlier disposal; and |
|
(3) may not avoid or attempt to avoid compliance with |
|
this section by filing an interpleader action in court and |
|
depositing the delinquent's or person's funds or other assets into |
|
the registry of the court. |
|
(f-1) A person who fails or refuses to comply with this |
|
section after receiving a notice of freeze or levy is liable for a |
|
penalty in an amount equal to 50 percent of the amount sought to be |
|
frozen or levied. This penalty is in addition to the liability |
|
imposed under Subsection (f). The penalty may be assessed and |
|
collected by the comptroller using any remedy available to collect |
|
other amounts under this title. |
|
SECTION 5. Subchapter B, Chapter 111, Tax Code, is amended |
|
by adding Section 111.0511 to read as follows: |
|
Sec. 111.0511. RESTRICTED OR CONDITIONAL PAYMENTS TO |
|
COMPTROLLER PROHIBITED. (a) In this section, "taxes" includes the |
|
tax and any penalties and interest relating to a tax liability. |
|
(b) Unless the restriction or condition is authorized by |
|
this title, a restriction or condition placed on a check or other |
|
money instrument in payment of taxes by the maker that purports to |
|
limit the amount of taxes owed or place a condition on its |
|
acceptance or negotiation is void. |
|
SECTION 6. Subchapter B, Chapter 111, Tax Code, is amended |
|
by adding Section 111.0611 to read as follows: |
|
Sec. 111.0611. PERSONAL LIABILITY FOR FRAUDULENT TAX |
|
EVASION. (a) An officer, manager, or director of a corporation, |
|
association, or limited liability company, a partner of a general |
|
partnership, or a managing general partner of a limited partnership |
|
or limited liability partnership who, as an officer, manager, |
|
director, or partner, took an action or participated in a |
|
fraudulent scheme or fraudulent plan to evade the payment of taxes |
|
due under Title 2 or 3 is personally liable for the taxes and any |
|
penalty and interest due. The personal liability of an individual |
|
includes liability for the additional 50 percent fraud penalty |
|
provided by Section 111.061(b). The comptroller shall assess |
|
individuals liable under this section in the same manner as other |
|
persons or entities may be assessed under this chapter. |
|
(b) For purposes of this section, actions that may indicate |
|
the existence of a fraudulent scheme or a fraudulent plan to evade |
|
the payment of taxes include: |
|
(1) filing, or causing to be filed, a false or |
|
fraudulent tax return or report with the comptroller on behalf of |
|
the business entity; |
|
(2) intentionally failing to file a tax return, |
|
report, or other required document with the comptroller when the |
|
business entity is under a legal obligation to file; |
|
(3) filing, or causing to be filed, a tax return or |
|
report with the comptroller on behalf of the business entity that |
|
contains an intentionally false statement that results in the |
|
amount of the tax due exceeding the amount of tax reported by 25 |
|
percent or more; and |
|
(4) altering, destroying, or concealing any record, |
|
document, or thing, presenting to the comptroller any altered or |
|
fraudulent record, document, or thing, or otherwise engaging in |
|
fraudulent conduct with the intent to affect the course or outcome |
|
of a comptroller audit or investigation, a redetermination hearing, |
|
or another proceeding involving the comptroller. |
|
SECTION 7. Section 113.106, Tax Code, is amended by adding |
|
Subsections (e) and (f) to read as follows: |
|
(e) A person must bring suit to determine the validity of a |
|
state tax lien not later than the 10th anniversary of the date the |
|
lien was filed. If more than one state tax lien has been filed |
|
relating to the same tax liability, the 10-year limitation period |
|
provided by this subsection is calculated from the date of the |
|
filing of the first lien relating to the liability. |
|
(f) A taxpayer is presumed to have received proper notice of |
|
the taxpayer's tax liability if the notice is delivered to the |
|
taxpayer's last address of record with the comptroller. The |
|
taxpayer may rebut the presumption by presenting substantive |
|
evidence that demonstrates that notice of the tax liability was not |
|
received. If the taxpayer rebuts the presumption of receipt of |
|
proper notice with evidence the comptroller considers |
|
satisfactory, the period of limitations for filing suit provided by |
|
Subsection (e) does not apply. |
|
SECTION 8. Subchapter C, Chapter 152, Tax Code, is amended |
|
by adding Section 152.0472 to read as follows: |
|
Sec. 152.0472. DETERMINATION OF WHETHER LOAN IS FACTORED, |
|
ASSIGNED, OR TRANSFERRED. (a) A seller is not considered to have |
|
factored, assigned, or transferred a loan under Section 152.047(g) |
|
if: |
|
(1) a loan through a seller is pledged as security for |
|
the sale of bonds: |
|
(A) to a qualified institutional buyer, as that |
|
term is defined by 17 C.F.R. Section 230.144A, that is not |
|
affiliated to the seller; |
|
(B) to an institutional accredited investor, as |
|
that term is defined by 17 C.F.R. Section 230.501(a)(1), (2), (3), |
|
or (7), that is not affiliated to the seller; or |
|
(C) in a public offering; |
|
(2) the right to receive payments and the risk of loss |
|
on nonpayment remains with the seller or an affiliated collection |
|
entity acting as agent of the seller; and |
|
(3) bondholders receive only interest and principal. |
|
(b) Notwithstanding Subsection (a), the seller may elect to |
|
pay all unpaid tax imposed under this chapter on the total |
|
consideration. A seller that makes this election is entitled to a |
|
credit or reimbursement for the taxes paid under this chapter on the |
|
remaining unpaid balance of the contract for which the seller has |
|
not received payment or has not otherwise collected the tax due. |
|
The seller shall take the tax credit or reimbursement on the |
|
seller's seller-finance return. The tax credit or reimbursement |
|
does not accrue interest. |
|
SECTION 9. Subchapter B, Chapter 183, Tax Code, is amended |
|
by adding Section 183.024 to read as follows: |
|
Sec. 183.024. LIABILITY FOR TAX PAYMENT. (a) In this |
|
section: |
|
(1) "Responsible individual" includes an officer, |
|
manager, director, or employee of a permittee who is under a duty to |
|
perform an act with respect to the accounting for or payment of the |
|
tax imposed by this chapter. |
|
(2) "Tax" includes any tax imposed by this chapter, |
|
including the penalty and interest computed by reference to the |
|
amount of the tax. |
|
(b) An officer, manager, director, or employee of a |
|
permittee who controls the operation of the permittee or controls |
|
or supervises the accounting for and payment of the tax imposed by |
|
this chapter and who intentionally fails to pay the tax or cause the |
|
tax to be paid is personally liable for the amount of the tax not |
|
paid. The liability imposed by this subsection is in addition to |
|
any other penalty provided by law. The dissolution of a |
|
corporation, association, limited liability company, or |
|
partnership does not affect a responsible individual's liability |
|
under this subsection. |
|
(c) A responsible individual is jointly and severally |
|
liable with other responsible individuals for the amount of the |
|
taxes imposed by this chapter that is not paid. |
|
(d) This section does not apply to a responsible individual |
|
of a private club registration permittee that is a fraternal |
|
organization or veterans organization to which Section 32.11, |
|
Alcoholic Beverage Code, applies. |
|
SECTION 10. Section 183.053(b), Tax Code, is amended to |
|
read as follows: |
|
(b) The total of bonds, certificates of deposit, letters of |
|
credit, or other security determined to be sufficient by the |
|
comptroller of a permittee subject to the tax imposed by this |
|
chapter shall be in an amount that the comptroller determines to be |
|
sufficient to protect the fiscal interests of the state. The |
|
comptroller may not set the amount of security at less than $1,000 |
|
or more than the greater of $100,000 or four times the amount of the |
|
permittee's average monthly tax liability [$50,000]. |
|
SECTION 11. This Act takes effect immediately if it |
|
receives a vote of two-thirds of all the members elected to each |
|
house, as provided by Section 39, Article III, Texas Constitution. |
|
If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2007. |