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A BILL TO BE ENTITLED
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AN ACT
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relating to establishing certain facilitators of sale, lease, or |
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rental transactions as retailers engaged in business in this state |
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for purposes of collection of the use tax. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 151.008(b), Tax Code, is amended to read |
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as follows: |
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(b) "Seller" and "retailer" include: |
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(1) a person in the business of making sales at auction |
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of tangible personal property owned by the person or by another; |
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(2) a person who makes more than two sales of taxable |
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items during a 12-month period, including sales made in the |
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capacity of an assignee for the benefit of creditors or receiver or |
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trustee in bankruptcy; |
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(3) a person regarded by the comptroller as a seller or |
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retailer under Section 151.024; |
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(4) a hotel, motel, or owner or lessor of an office or |
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residential building or development that contracts and pays for |
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telecommunications services for resale to guests or tenants; |
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(5) a person who engages in regular or systematic |
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solicitation of sales of taxable items in this state by the |
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distribution of catalogs, periodicals, advertising flyers, or |
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other advertising, by means of print, radio, or television media, |
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or by mail, telegraphy, telephone, computer data base, cable, |
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optic, microwave, or other communication system for the purpose of |
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effecting sales of taxable items; [and] |
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(6) a person who, under an agreement with another |
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person, is: |
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(A) entrusted with possession of tangible |
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personal property with respect to which the other person has title |
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or another ownership interest; and |
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(B) authorized to sell, lease, or rent the |
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property without additional action by the person having title to or |
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another ownership interest in the property; and |
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(7) a person who is a marketplace provider as defined |
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by Section 151.109. |
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SECTION 2. Subchapter D, Chapter 151, Tax Code, is amended |
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by adding Section 151.109 to read as follows: |
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Sec. 151.109. MARKETPLACE PROVIDERS. (a) In this section, |
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"marketplace provider" means a person who: |
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(1) facilitates the sale, lease, or rental of the |
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tangible personal property of a retailer that is not the person to a |
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purchaser in this state in any manner, including by the use of a |
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catalog or an Internet website; |
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(2) directly or indirectly collects from a purchaser |
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in this state receipts derived from the sale, lease, or rental of |
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the retailer's tangible personal property to the purchaser and |
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transmits those receipts to the retailer, other than any amount the |
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person is authorized to retain as a fee for facilitating the sale, |
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lease, or rental; and |
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(3) is engaged in business in this state by means of |
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any of the activities listed in Section 151.107(a). |
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(b) A marketplace provider's facilitation of a sale, lease, |
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or rental described by Subsection (a)(1) that results in a sale, |
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lease, or rental by the other retailer is considered the making of a |
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sale by the marketplace provider for purposes of Sections |
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151.008(a) and 151.103. Notwithstanding Section 151.103, the |
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marketplace provider is not required to collect a use tax imposed |
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under this subchapter that is due from a purchaser if the retailer |
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for whom the marketplace provider facilitates the sale, lease, or |
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rental collects the tax from the purchaser. |
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(c) For purposes of Subsection (b), a marketplace provider |
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may presume that a retailer registered with the comptroller under |
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Section 151.106 collects the use tax from a purchaser. |
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(d) Subject to Subsection (e), a marketplace provider is not |
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subject to liability under Subchapter L for failing to collect or |
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remit the appropriate amount of use tax if, in determining the |
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amount, the marketplace provider relies exclusively on information |
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provided by the retailer for whom the marketplace provider |
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facilitates the sale, lease, or rental of the tangible personal |
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property on which the tax is due. |
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(e) Subsection (d) does not apply if the marketplace |
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provider holds a substantial ownership interest in the retailer for |
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whom the marketplace provider facilitated the sale, lease, or |
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rental of tangible personal property, or the retailer holds a |
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substantial ownership interest in the marketplace provider. For |
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purposes of this subsection, "ownership" and "substantial" have the |
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meanings assigned by Section 151.107(d). |
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(f) The comptroller may adopt rules necessary to implement |
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and administer this section, including rules establishing the |
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requirements for an entity to be considered a marketplace provider. |
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SECTION 3. Section 151.403(b), Tax Code, is amended to read |
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as follows: |
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(b) A retailer engaged in business in this state as provided |
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by Section 151.107 or 151.109 [of this code] shall file a tax report |
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with respect to the use tax. |
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SECTION 4. The change in law made by this Act does not |
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affect tax liability accruing before the effective date of this |
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Act. That liability continues in effect as if this Act had not been |
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enacted, and the former law is continued in effect for the |
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collection of taxes due and for civil and criminal enforcement of |
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the liability for those taxes. |
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SECTION 5. This Act takes effect September 1, 2017. |