By: Burrows H.B. No. 1525
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the administration and collection of sales and use
  taxes applicable to sales involving marketplace providers.
         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;
               (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;
               (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; and
               (7)  a person who is a marketplace provider under
  Section 151.0242.
         SECTION 2.  Subchapter B, Chapter 151, Tax Code, is amended
  by adding Section 151.0242 to read as follows:
         Sec. 151.0242.  MARKETPLACE PROVIDERS AND MARKETPLACE
  SELLERS. (a)  In this section:
               (1)  "Marketplace" means a physical or electronic
  medium through which persons other than the owner or operator of the
  medium make sales of taxable items.  The term includes a store,
  Internet website, software application, or catalog.
               (2)  "Marketplace provider" means a person who owns or
  operates a marketplace and directly or indirectly processes sales
  or payments for marketplace sellers.
               (3)  "Marketplace seller" means a seller, other than
  the marketplace provider, who makes a sale of a taxable item through
  a marketplace.
         (b)  Except as otherwise provided by this section, a
  marketplace provider has the rights and duties of a seller or
  retailer under this chapter with respect to sales made through the
  marketplace.
         (c)  A marketplace provider shall:
               (1)  certify to each marketplace seller that the
  marketplace provider assumes the rights and duties of a seller or
  retailer under this chapter with respect to sales made by the
  marketplace seller through the marketplace;
               (2)  collect in the manner provided by Subchapters C
  and D the taxes imposed by this chapter on sales of taxable items
  made through the marketplace; and
               (3)  report and remit under Subchapter I the taxes
  imposed by this chapter on all sales made through the marketplace.
         (d)  A marketplace seller who in good faith accepts a
  marketplace provider's certification under Subsection (c)(1) shall
  exclude sales made through the marketplace from the marketplace
  seller's report under Subchapter I, notwithstanding Section
  151.406.
         (e)  A marketplace seller shall retain records for all
  marketplace sales as required by Section 151.025.
         (f)  A marketplace seller shall furnish to the marketplace
  provider information that is required to correctly collect and
  remit taxes imposed by this chapter.  The information may include a
  certification of taxability that an item being sold is a taxable
  item, is not a taxable item, or is exempt from taxation.
         (g)  Except as provided by Subsection (h), a marketplace
  provider is not liable for failure to collect and remit the correct
  amount of taxes imposed by this chapter if the marketplace provider
  demonstrates that the failure resulted from the marketplace
  provider's good faith reliance on incorrect or insufficient
  information provided by the marketplace seller.  The marketplace
  seller is liable for a deficiency resulting from incorrect or
  insufficient information provided by the marketplace seller.
         (h)  A marketplace provider and marketplace seller that are
  affiliates or associates, as defined by Section 1.002, Business
  Organizations Code, are jointly and severally liable for a
  deficiency resulting from a sale made by the marketplace seller
  through the marketplace.
         (i)  This section does not affect the tax liability of a
  purchaser under Section 151.052 or 151.102.
         (j)  A court may not certify an action brought against a
  marketplace provider concerning this section as a class action.
         (k)  The comptroller may adopt rules and forms to implement
  this section and by rule except certain small marketplace providers
  from some or all of the requirements of this section.
         SECTION 3.  Section 321.203, Tax Code, is amended by adding
  Subsection (e-1) to read as follows:
         (e-1)  Notwithstanding any other provision of this section,
  a sale of a taxable item made by a marketplace seller through a
  marketplace as provided by Section 151.0242 is consummated at the
  location in this state to which the item is shipped or delivered or
  at which possession is taken by the purchaser.
         SECTION 4.  Section 323.203, Tax Code, is amended by adding
  Subsection (e-1) to read as follows:
         (e-1)  Notwithstanding any other provision of this section,
  a sale of a taxable item made by a marketplace seller through a
  marketplace as provided by Section 151.0242 is consummated at the
  location in this state to which the item is shipped or delivered or
  at which possession is taken by the purchaser.
         SECTION 5.  (a)  The comptroller of public accounts, in
  coordination with affected industry leaders, shall study the
  estimated fiscal and other impacts to this state of providing an
  exception under Section 151.0242(k), Tax Code, as added by this
  Act, for marketplace providers with each of the following maximum
  amounts of annual gross revenue from the sale of taxable items for
  storage, use, or other consumption in this state:
               (1)  $500,000;
               (2)  $200,000;
               (3)  $100,000; and
               (4)  $50,000.
         (b)  Not later than December 1, 2020, the comptroller shall
  prepare a report with the findings of the study and make the report
  available in an electronic format to the public and each member of
  the legislature.
 
         SECTION 6.  The changes in law made by this Act do 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 7.  This Act takes effect October 1, 2019.