|
|
|
|
AN ACT
|
|
relating to retailers engaged in business in this state for |
|
purposes of sales and use taxes. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Section 151.008(b), Tax Code, is amended to read |
|
as follows: |
|
(b) "Seller" and "retailer" include: |
|
(1) a person in the business of making sales at auction |
|
of tangible personal property owned by the person or by another; |
|
(2) a person who makes more than two sales of taxable |
|
items during a 12-month period, including sales made in the |
|
capacity of an assignee for the benefit of creditors or receiver or |
|
trustee in bankruptcy; |
|
(3) a person regarded by the comptroller as a seller or |
|
retailer under Section 151.024 [of this code]; |
|
(4) a hotel, motel, or owner or lessor of an office or |
|
residential building or development that contracts and pays for |
|
telecommunications services for resale to guests or tenants; [and] |
|
(5) a person who engages in regular or systematic |
|
solicitation of sales of taxable items in this state by the |
|
distribution of catalogs, periodicals, advertising flyers, or |
|
other advertising, by means of print, radio, or television media, |
|
or by mail, telegraphy, telephone, computer data base, cable, |
|
optic, microwave, or other communication system for the purpose of |
|
effecting sales of taxable items; and |
|
(6) a person who, under an agreement with another |
|
person, is: |
|
(A) entrusted with possession of tangible |
|
personal property with respect to which the other person has title |
|
or another ownership interest; and |
|
(B) authorized to sell, lease, or rent the |
|
property without additional action by the person having title to or |
|
another ownership interest in the property. |
|
SECTION 2. Section 151.107, Tax Code, is amended by |
|
amending Subsection (a) and adding Subsection (d) to read as |
|
follows: |
|
(a) For the purpose of this subchapter and in relation to |
|
the use tax, a retailer is engaged in business in this state if the |
|
retailer: |
|
(1) maintains, occupies, or uses in this state |
|
permanently, temporarily, directly, or indirectly or through a |
|
subsidiary or agent by whatever name, an office, [place of] |
|
distribution center, sales or sample room or place, warehouse, |
|
storage place, or any other physical location where [place of] |
|
business is conducted; |
|
(2) has a representative, agent, salesman, canvasser, |
|
or solicitor operating in this state under the authority of the |
|
retailer or its subsidiary for the purpose of selling or delivering |
|
or the taking of orders for a taxable item; |
|
(3) derives receipts [rentals] from the sale, [a] |
|
lease, or rental of tangible personal property situated in this |
|
state; |
|
(4) engages in regular or systematic solicitation of |
|
sales of taxable items in this state by the distribution of |
|
catalogs, periodicals, advertising flyers, or other advertising, |
|
by means of print, radio, or television media, or by mail, |
|
telegraphy, telephone, computer data base, cable, optic, |
|
microwave, or other communication system for the purpose of |
|
effecting sales of taxable items; |
|
(5) solicits orders for taxable items by mail or |
|
through other media and under federal law is subject to or permitted |
|
to be made subject to the jurisdiction of this state for purposes of |
|
collecting the taxes imposed by this chapter; |
|
(6) has a franchisee or licensee operating under its |
|
trade name if the franchisee or licensee is required to collect the |
|
tax under this section; [or] |
|
(7) holds a substantial ownership interest in, or is |
|
owned in whole or substantial part by, a person who maintains a |
|
location in this state from which business is conducted and if: |
|
(A) the retailer sells the same or a |
|
substantially similar line of products as the person with the |
|
location in this state and sells those products under a business |
|
name that is the same as or substantially similar to the business |
|
name of the person with the location in this state; or |
|
(B) the facilities or employees of the person |
|
with the location in this state are used to: |
|
(i) advertise, promote, or facilitate sales |
|
by the retailer to consumers; or |
|
(ii) perform any other activity on behalf |
|
of the retailer that is intended to establish or maintain a |
|
marketplace for the retailer in this state, including receiving or |
|
exchanging returned merchandise; |
|
(8) holds a substantial ownership interest in, or is |
|
owned in whole or substantial part by, a person that: |
|
(A) maintains a distribution center, warehouse, |
|
or similar location in this state; and |
|
(B) delivers property sold by the retailer to |
|
consumers; or |
|
(9) otherwise does business in this state. |
|
(d) In this section: |
|
(1) "Ownership" includes: |
|
(A) direct ownership; |
|
(B) common ownership; and |
|
(C) indirect ownership through a parent entity, |
|
subsidiary, or affiliate. |
|
(2) "Substantial" means, with respect to an ownership |
|
interest, an interest in an entity that is: |
|
(A) if the entity is a corporation, at least 50 |
|
percent, directly or indirectly, of: |
|
(i) the total combined voting power of all |
|
classes of stock of the corporation; or |
|
(ii) the beneficial ownership interest in |
|
the voting stock of the corporation; |
|
(B) if the entity is a trust, at least 50 percent, |
|
directly or indirectly, of the current beneficial interest in the |
|
trust corpus or income; |
|
(C) if the entity is a limited liability company, |
|
at least 50 percent, directly or indirectly, of: |
|
(i) the total membership interest of the |
|
limited liability company; or |
|
(ii) the beneficial ownership interest in |
|
the membership interest of the limited liability company; or |
|
(D) for any entity, including a partnership or |
|
association, at least 50 percent, directly or indirectly, of the |
|
capital or profits interest in the entity. |
|
SECTION 3. The change in law made by this Act does not |
|
affect tax liability accruing before the effective date of this |
|
Act. That liability continues in effect as if this Act had not been |
|
enacted, and the former law is continued in effect for the |
|
collection of taxes due and for civil and criminal enforcement of |
|
the liability for those taxes. |
|
SECTION 4. This Act takes effect January 1, 2012. |
|
|
|
______________________________ |
______________________________ |
|
President of the Senate |
Speaker of the House |
|
|
|
I certify that H.B. No. 2403 was passed by the House on April |
|
27, 2011, by the following vote: Yeas 125, Nays 20, 3 present, not |
|
voting. |
|
|
|
______________________________ |
|
Chief Clerk of the House |
|
|
|
I certify that H.B. No. 2403 was passed by the Senate on May |
|
13, 2011, by the following vote: Yeas 30, Nays 1 |
|
. |
|
|
|
______________________________ |
|
Secretary of the Senate |
|
APPROVED: _____________________ |
|
Date |
|
|
|
_____________________ |
|
Governor |