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A BILL TO BE ENTITLED
|
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AN ACT
|
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relating to the rates and computation of the franchise tax. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 171.002(a), (b), and (d), Tax Code, are |
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amended to read as follows: |
|
(a) Subject to Sections 171.003 and 171.1016 and except as |
|
provided by Subsection (b), the rate of the franchise tax is: |
|
(1) for taxable margin of $1 million or less, zero; |
|
(2) for taxable margin that exceeds $1 million but |
|
does not exceed $10 million, 0.5 percent of the taxable margin that |
|
exceeds $1 million; and |
|
(3) for taxable margin that exceeds $10 million, |
|
$45,000 plus one percent of the taxable margin that exceeds $10 |
|
million. |
|
(b) Subject to Sections 171.003 and 171.1016, for those |
|
taxable entities primarily engaged in retail or wholesale trade, |
|
the rate of the franchise tax is: |
|
(1) for taxable margin of $1 million or less, zero; |
|
(2) for taxable margin that exceeds $1 million but |
|
does not exceed $10 million, 0.25 percent of the taxable margin that |
|
exceeds $1 million; and |
|
(3) for taxable margin that exceeds $10 million, |
|
$22,500 plus 0.5 percent of the taxable margin that exceeds $10 |
|
million [for those taxable entities primarily engaged in retail or
|
|
wholesale trade]. |
|
(d) A taxable entity is not required to pay any tax and is |
|
not considered to owe any tax for a period if [:
|
|
[(1)] the amount of tax computed for the taxable entity |
|
is less than $5,000 [$1,000; or
|
|
[(2)
the amount of the taxable entity's total revenue
|
|
from its entire business is less than or equal to $300,000 or the
|
|
amount determined under Section 171.006 per 12-month period on
|
|
which margin is based]. |
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SECTION 2. Subchapter A, Chapter 171, Tax Code, is amended |
|
by adding Section 171.0023 to read as follows: |
|
Sec. 171.0023. TAX LIABILITY OF CERTAIN TAXABLE ENTITIES. |
|
(a) In this section, "taxable income" means: |
|
(1) for a taxable entity treated for federal income |
|
tax purposes as a corporation, the amount reportable as taxable |
|
income on line 30, Internal Revenue Service Form 1120; |
|
(2) for a taxable entity treated for federal income |
|
tax purposes as a partnership, the amount reportable as ordinary |
|
business income or loss on line 22, Internal Revenue Service Form |
|
1065; or |
|
(3) for a taxable entity other than a taxable entity |
|
treated for federal income tax purposes as a corporation or |
|
partnership, an amount determined in a manner substantially |
|
equivalent to the amount for Subdivision (1) or (2) determined by |
|
rules the comptroller shall adopt. |
|
(b) Except as provided by Subsection (c), a taxable entity |
|
is not required to pay any tax and is not considered to owe any tax |
|
for a period if the taxable entity's taxable income for the period |
|
is zero or less. |
|
(c) Subsection (b) does not apply to a taxable entity that |
|
is a member of a combined group. |
|
(d) Section 171.1011(a) applies to a reference in this |
|
section to an Internal Revenue Service form, and Section |
|
171.1011(b) applies to a reference in this section to an amount |
|
reportable on a line number on an Internal Revenue Service form. |
|
(e) The comptroller shall adopt rules as necessary to |
|
accomplish the legislative intent prescribed by this section. |
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SECTION 3. The heading to Section 171.006, Tax Code, is |
|
amended to read as follows: |
|
Sec. 171.006. ADJUSTMENT OF ELIGIBILITY FOR [NO TAX DUE,
|
|
DISCOUNTS, AND] COMPENSATION DEDUCTION. |
|
SECTION 4. Section 171.006(b), Tax Code, is amended to read |
|
as follows: |
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(b) On [Beginning in 2010, on] January 1 of each |
|
even-numbered year, the amount [amounts] prescribed by Section |
|
[Sections 171.002(d)(2), 171.0021, and] 171.1013(c) is [are] |
|
increased or decreased by an amount equal to the amount prescribed |
|
by that section [those sections] on December 31 of the preceding |
|
year multiplied by the percentage increase or decrease during the |
|
preceding state fiscal biennium in the consumer price index and |
|
rounded to the nearest $10,000. |
|
SECTION 5. Section 171.1012, Tax Code, is amended to read as |
|
follows: |
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Sec. 171.1012. DETERMINATION OF COST OF GOODS SOLD. |
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[(a) In this section:
|
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[(1)
"Goods" means real or tangible personal property
|
|
sold in the ordinary course of business of a taxable entity.
|
|
[(2)
"Production" includes construction,
|
|
installation, manufacture, development, mining, extraction,
|
|
improvement, creation, raising, or growth.
|
|
[(3)(A) "Tangible personal property" means:
|
|
[(i)
personal property that can be seen,
|
|
weighed, measured, felt, or touched or that is perceptible to the
|
|
senses in any other manner;
|
|
[(ii)
films, sound recordings, videotapes,
|
|
live and prerecorded television and radio programs, books, and
|
|
other similar property embodying words, ideas, concepts, images, or
|
|
sound, without regard to the means or methods of distribution or the
|
|
medium in which the property is embodied, for which, as costs are
|
|
incurred in producing the property, it is intended or is reasonably
|
|
likely that any medium in which the property is embodied will be
|
|
mass-distributed by the creator or any one or more third parties in
|
|
a form that is not substantially altered; and
|
|
[(iii)
a computer program, as defined by
|
|
Section 151.0031.
|
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[(B)
"Tangible personal property" does not
|
|
include:
|
|
[(i) intangible property; or
|
|
[(ii) services.
|
|
[(b)] Subject to Section 171.1014, a taxable entity that |
|
elects to subtract cost of goods sold for the purpose of computing |
|
its taxable margin shall determine the amount of that cost of goods |
|
sold as follows: |
|
(1) for a taxable entity treated for federal income |
|
tax purposes as a corporation, the cost of goods sold is the amount |
|
reportable as cost of goods sold on line 2, Internal Revenue Service |
|
Form 1120; |
|
(2) for a taxable entity treated for federal income |
|
tax purposes as a partnership, the cost of goods sold is the amount |
|
reportable as cost of goods sold on line 2, Internal Revenue Service |
|
Form 1065; |
|
(3) for a taxable entity treated for federal income |
|
tax purposes as an S corporation, the cost of goods sold is the |
|
amount reportable as cost of goods sold on line 2, Internal Revenue |
|
Service Form 1120S; or |
|
(4) for any other taxable entity, the cost of goods |
|
sold is an amount determined in a manner substantially equivalent |
|
to the amount for Subdivision (1), (2), or (3) determined by rules |
|
the comptroller shall adopt [as provided by this section]. |
|
[(c)
The cost of goods sold includes all direct costs of
|
|
acquiring or producing the goods, including:
|
|
[(1) labor costs;
|
|
[(2)
cost of materials that are an integral part of
|
|
specific property produced;
|
|
[(3)
cost of materials that are consumed in the
|
|
ordinary course of performing production activities;
|
|
[(4)
handling costs, including costs attributable to
|
|
processing, assembling, repackaging, and inbound transportation
|
|
costs;
|
|
[(5)
storage costs, including the costs of carrying,
|
|
storing, or warehousing property, subject to Subsection (e);
|
|
[(6)
depreciation, depletion, and
|
|
amortization,
reported on the federal income tax return on which
|
|
the report under this chapter is based, to the extent associated
|
|
with and necessary for the production of goods, including recovery
|
|
described by Section 197, Internal Revenue Code;
|
|
[(7)
the cost of renting or leasing equipment,
|
|
facilities, or real property directly used for the production of
|
|
the goods, including pollution control equipment and intangible
|
|
drilling and dry hole costs;
|
|
[(8)
the cost of repairing and maintaining equipment,
|
|
facilities, or real property directly used for the production of
|
|
the goods, including pollution control devices;
|
|
[(9)
costs attributable to research, experimental,
|
|
engineering, and design activities directly related to the
|
|
production of the goods, including all research or experimental
|
|
expenditures described by Section 174, Internal Revenue Code;
|
|
[(10)
geological and geophysical costs incurred to
|
|
identify and locate property that has the potential to produce
|
|
minerals;
|
|
[(11)
taxes paid in relation to acquiring or producing
|
|
any material, or taxes paid in relation to services that are a
|
|
direct cost of production;
|
|
[(12)
the cost of producing or acquiring electricity
|
|
sold; and
|
|
[(13)
a contribution to a partnership in which the
|
|
taxable entity owns an interest that is used to fund activities, the
|
|
costs of which would otherwise be treated as cost of goods sold of
|
|
the partnership, but only to the extent that those costs are related
|
|
to goods distributed to the taxable entity as goods-in-kind in the
|
|
ordinary course of production activities rather than being sold.
|
|
[(d)
In addition to the amounts includable under Subsection
|
|
(c), the cost of goods sold includes the following costs in relation
|
|
to the taxable entity's goods:
|
|
[(1) deterioration of the goods;
|
|
[(2) obsolescence of the goods;
|
|
[(3)
spoilage and abandonment, including the costs of
|
|
rework labor, reclamation, and scrap;
|
|
[(4)
if the property is held for future production,
|
|
preproduction direct costs allocable to the property, including
|
|
costs of purchasing the goods and of storage and handling the goods,
|
|
as provided by Subsections (c)(4) and (c)(5);
|
|
[(5)
postproduction direct costs allocable to the
|
|
property, including storage and handling costs, as provided by
|
|
Subsections (c)(4) and (c)(5);
|
|
[(6)
the cost of insurance on a plant or a facility,
|
|
machinery, equipment, or materials directly used in the production
|
|
of the goods;
|
|
[(7) the cost of insurance on the produced goods;
|
|
[(8)
the cost of utilities, including electricity,
|
|
gas, and water, directly used in the production of the goods;
|
|
[(9)
the costs of quality control, including
|
|
replacement of defective components pursuant to standard warranty
|
|
policies, inspection directly allocable to the production of the
|
|
goods, and repairs and maintenance of goods; and
|
|
[(10)
licensing or franchise costs, including fees
|
|
incurred in securing the contractual right to use a trademark,
|
|
corporate plan, manufacturing procedure, special recipe, or other
|
|
similar right directly associated with the goods produced.
|
|
[(e)
The cost of goods sold does not include the following
|
|
costs in relation to the taxable entity's goods:
|
|
[(1)
the cost of renting or leasing equipment,
|
|
facilities, or real property that is not used for the production of
|
|
the goods;
|
|
[(2)
selling costs, including employee expenses
|
|
related to sales;
|
|
[(3)
distribution costs, including outbound
|
|
transportation costs;
|
|
[(4) advertising costs;
|
|
[(5) idle facility expense;
|
|
[(6) rehandling costs;
|
|
[(7)
bidding costs, which are the costs incurred in
|
|
the solicitation of contracts ultimately awarded to the taxable
|
|
entity;
|
|
[(8)
unsuccessful bidding costs, which are the costs
|
|
incurred in the solicitation of contracts not awarded to the
|
|
taxable entity;
|
|
[(9)
interest, including interest on debt incurred or
|
|
continued during the production period to finance the production of
|
|
the goods;
|
|
[(10)
income taxes, including local, state, federal,
|
|
and foreign income taxes, and franchise taxes that are assessed on
|
|
the taxable entity based on income;
|
|
[(11)
strike expenses, including costs associated
|
|
with hiring employees to replace striking personnel, but not
|
|
including the wages of the replacement personnel, costs of
|
|
security, and legal fees associated with settling strikes;
|
|
[(12) officers' compensation;
|
|
[(13) costs of operation of a facility that is:
|
|
[(A)
located on property owned or leased by the
|
|
federal government;
and
|
|
[(B)
managed or operated primarily to house
|
|
members of the armed forces of the United States; and
|
|
[(14)
any compensation paid to an undocumented worker
|
|
used for the production of goods.
As used in this subdivision:
|
|
[(A)
"undocumented worker" means a person who is
|
|
not lawfully entitled to be present and employed in the United
|
|
States; and
|
|
[(B)
"goods" includes the husbandry of animals,
|
|
the growing and harvesting of crops, and the severance of timber
|
|
from realty.
|
|
[(f)
A taxable entity may subtract as a cost of goods sold
|
|
indirect or administrative overhead costs, including all mixed
|
|
service costs, such as security services, legal services, data
|
|
processing services, accounting services, personnel operations,
|
|
and general financial planning and financial management costs, that
|
|
it can demonstrate are allocable to the acquisition or production
|
|
of goods, except that the amount subtracted may not exceed four
|
|
percent of the taxable entity's total indirect or administrative
|
|
overhead costs, including all mixed service costs.
Any costs
|
|
excluded under Subsection (e) may not be subtracted under this
|
|
subsection.
|
|
[(g)
A taxable entity that is allowed a subtraction by this
|
|
section for a cost of goods sold and that is subject to Section
|
|
263A, 460, or 471, Internal Revenue Code, may capitalize that cost
|
|
in the same manner and to the same extent that the taxable entity
|
|
capitalized that cost on its federal income tax return or may
|
|
expense those costs, except for costs excluded under Subsection
|
|
(e), or in accordance with Subsections (c), (d), and (f).
If the
|
|
taxable entity elects to capitalize costs, it must capitalize each
|
|
cost allowed under this section that it capitalized on its federal
|
|
income tax return.
If the taxable entity later elects to begin
|
|
expensing a cost that may be allowed under this section as a cost of
|
|
goods sold, the entity may not deduct any cost in ending inventory
|
|
from a previous report.
If the taxable entity elects to expense a
|
|
cost of goods sold that may be allowed under this section, a cost
|
|
incurred before the first day of the period on which the report is
|
|
based may not be subtracted as a cost of goods sold.
If the taxable
|
|
entity elects to expense a cost of goods sold and later elects to
|
|
capitalize that cost of goods sold, a cost expensed on a previous
|
|
report may not be capitalized.
|
|
[(h)
A taxable entity shall determine its cost of goods
|
|
sold, except as otherwise provided by this section, in accordance
|
|
with the methods used on the federal income tax return on which the
|
|
report under this chapter is based.
This subsection does not
|
|
affect the type or category of cost of goods sold that may be
|
|
subtracted under this section.
|
|
[(i)
A taxable entity may make a subtraction under this
|
|
section in relation to the cost of goods sold only if that entity
|
|
owns the goods.
The determination of whether a taxable entity is
|
|
an owner is based on all of the facts and circumstances, including
|
|
the various benefits and burdens of ownership vested with the
|
|
taxable entity.
A taxable entity furnishing labor or materials to
|
|
a project for the construction, improvement, remodeling, repair, or
|
|
industrial maintenance (as the term "maintenance" is defined in 34
|
|
T.A.C. Section 3.357) of real property is considered to be an owner
|
|
of that labor or materials and may include the costs, as allowed by
|
|
this section, in the computation of cost of goods sold.
Solely for
|
|
purposes of this section, a taxable entity shall be treated as the
|
|
owner of goods being manufactured or produced by the entity under a
|
|
contract with the federal government, including any subcontracts
|
|
that support a contract with the federal government,
|
|
notwithstanding that the Federal Acquisition Regulation may
|
|
require that title or risk of loss with respect to those goods be
|
|
transferred to the federal government before the manufacture or
|
|
production of those goods is complete.
|
|
[(j)
A taxable entity may not make a subtraction under this
|
|
section for cost of goods sold to the extent the cost of goods sold
|
|
was funded by partner contributions and deducted under Subsection
|
|
(c)(13).
|
|
[(k)
Notwithstanding any other provision of this section,
|
|
if the taxable entity is a lending institution that offers loans to
|
|
the public and elects to subtract cost of goods sold, the entity,
|
|
other than an entity primarily engaged in an activity described by
|
|
category 5932 of the 1987 Standard Industrial Classification Manual
|
|
published by the federal Office of Management and Budget, may
|
|
subtract as a cost of goods sold an amount equal to interest
|
|
expense.
For purposes of this subsection, an entity engaged in
|
|
lending to unrelated parties solely for agricultural production
|
|
offers loans to the public.
|
|
[(k-1)
Notwithstanding any other provision of this section,
|
|
the following taxable entities may subtract as a cost of goods sold
|
|
the costs otherwise allowed by this section in relation to tangible
|
|
personal property that the entity rents or leases in the ordinary
|
|
course of business of the entity:
|
|
[(1)
a motor vehicle rental or leasing company that
|
|
remits a tax on gross receipts imposed under Section 152.026;
|
|
[(2)
a heavy construction equipment rental or leasing
|
|
company; and
|
|
[(3)
a railcar rolling stock rental or leasing
|
|
company.
|
|
[(l)
Notwithstanding any other provision of this section, a
|
|
payment made by one member of an affiliated group to another member
|
|
of that affiliated group not included in the combined group may be
|
|
subtracted as a cost of goods sold only if it is a transaction made
|
|
at arm's length.
|
|
[(m)
In this section, "arm's length" means the standard of
|
|
conduct under which entities that are not related parties and that
|
|
have substantially equal bargaining power, each acting in its own
|
|
interest, would negotiate or carry out a particular transaction.
|
|
[(n)
In this section, "related party" means a person,
|
|
corporation, or other entity, including an entity that is treated
|
|
as a pass-through or disregarded entity for purposes of federal
|
|
taxation, whether the person, corporation, or entity is subject to
|
|
the tax under this chapter or not, in which one person, corporation,
|
|
or entity, or set of related persons, corporations, or entities,
|
|
directly or indirectly owns or controls a controlling interest in
|
|
another entity.
|
|
[(o)
If a taxable entity, including a taxable entity with
|
|
respect to which cost of goods sold is determined pursuant to
|
|
Section 171.1014(e)(1), whose principal business activity is film
|
|
or television production or broadcasting or the distribution of
|
|
tangible personal property described by Subsection (a)(3)(A)(ii),
|
|
or any combination of these activities, elects to subtract cost of
|
|
goods sold, the cost of goods sold for the taxable entity shall be
|
|
the costs described in this section in relation to the property and
|
|
include depreciation, amortization, and other expenses directly
|
|
related to the acquisition, production, or use of the property,
|
|
including expenses for the right to broadcast or use the property.] |
|
SECTION 6. Section 171.1013, Tax Code, is amended by adding |
|
Subsection (i) to read as follows: |
|
(i) Subject to Section 171.1014 and the limitation in |
|
Subsection (c), a taxable entity that elects to subtract |
|
compensation for the purpose of computing its taxable margin under |
|
Section 171.101 may include as wages and cash compensation any |
|
compensation paid to an independent contractor as reported on |
|
Internal Revenue Service Form 1099, or any subsequent form with a |
|
different number or designation that substantially provides the |
|
same information. |
|
SECTION 7. Section 171.1015(d), Tax Code, is amended to |
|
read as follows: |
|
(d) Section 171.002(d) does not apply to an upper tier |
|
entity if, before the attribution of any total revenue by a lower |
|
tier entity to an upper tier entity under this section, the lower |
|
tier entity does not meet the criteria of Section 171.002(d) |
|
[171.002(d)(1) or (d)(2)]. |
|
Effective January 1, 2011, Section 171.103(b), Tax Code, is |
|
amended to read as follows: |
|
(b) A combined group shall include in its gross receipts |
|
computed under Subsection (a) the gross receipts of each taxable |
|
entity that is a member of the combined group [and that has a nexus
|
|
with this state for the purpose of taxation]. |
|
Effective January 1, 2011, Section 171.1055(b), Tax Code, is |
|
amended to read as follows: |
|
(b) In apportioning margin, receipts derived from |
|
transactions between individual members of a combined group that |
|
are excluded under Section 171.1014(c)(3) may not be included in |
|
the receipts of the taxable entity from its business done in this |
|
state as determined under Section 171.103[, except that receipts
|
|
ultimately derived from the sale of tangible personal property
|
|
between individual members of a combined group where one member
|
|
party to the transaction does not have nexus in this state shall be
|
|
included in the receipts of the taxable entity from its business
|
|
done in this state as determined under Section 171.103 to the extent
|
|
that the member of the combined group that does not have nexus in
|
|
this state resells the tangible personal property without
|
|
substantial modification to a purchaser in this state.
"Receipts
|
|
ultimately derived from the sale" means the amount paid for the
|
|
tangible personal property by the third party purchaser]. |
|
SECTION 8. Section 171.204(b), Tax Code, is amended to read |
|
as follows: |
|
(b) The comptroller may require a taxable entity that does |
|
not owe any tax because of the application of Section 171.0023 |
|
[171.002(d)(2)] to file an abbreviated information report with the |
|
comptroller stating the amount of the taxable entity's taxable |
|
income as defined by that section [total revenue from its entire
|
|
business]. The comptroller may not require a taxable entity |
|
described by this subsection to file an information report that |
|
requires the taxable entity to report or compute its margin. |
|
SECTION 9. Sections 171.0021, 171.1016(d), and 171.103(c) |
|
and (d), Tax Code, are repealed. |
|
SECTION 10. This Act applies only to a report originally due |
|
on or after the effective date of this Act. |
|
SECTION 11. Except as otherwise provided by this Act, this |
|
Act takes effect January 1, 2010. |