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A BILL TO BE ENTITLED
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AN ACT
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relating to the administration and collection of sales and use |
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taxes applicable to certain sales. |
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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 under |
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Section 151.0242. |
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SECTION 2. Subchapter B, Chapter 151, Tax Code, is amended |
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by adding Section 151.0242 to read as follows: |
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Sec. 151.0242. MARKETPLACE PROVIDERS AND MARKETPLACE |
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SELLERS. (a) In this section: |
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(1) "Marketplace" means a physical or electronic |
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medium through which persons other than the owner or operator of the |
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medium make sales of taxable items. The term includes a store, |
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Internet website, software application, or catalog. |
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(2) "Marketplace provider" means a person who owns or |
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operates a marketplace and directly or indirectly processes sales |
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or payments for marketplace sellers. |
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(3) "Marketplace seller" means a seller, other than |
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the marketplace provider, who makes a sale of a taxable item through |
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a marketplace. |
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(b) Except as otherwise provided by this section, a |
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marketplace provider has the rights and duties of a seller or |
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retailer under this chapter with respect to sales made through the |
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marketplace. |
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(c) A marketplace provider shall: |
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(1) provide a collection certificate to each |
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marketplace seller certifying that the marketplace provider |
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assumes the rights and duties of a seller or retailer under this |
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chapter with respect to sales made by the marketplace seller |
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through the marketplace; |
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(2) report under Subchapter I all sales made through |
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the marketplace; and |
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(3) collect in the manner provided by Subchapters C |
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and D and remit the taxes imposed under this chapter on sales of |
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taxable items made through the marketplace. |
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(d) A marketplace seller who in good faith accepts a |
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marketplace provider's collection certificate under Subsection |
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(c)(1) shall exclude sales made through the marketplace from the |
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marketplace seller's report under Subchapter I, notwithstanding |
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Section 151.406. |
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(e) A marketplace seller shall retain records for all |
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marketplace sales as required by Section 151.025. |
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(f) A marketplace seller shall furnish to the marketplace |
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provider information that is required to correctly collect and |
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remit taxes imposed under this chapter. The information may |
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include a certification of taxability that an item being sold is a |
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taxable item, is not a taxable item, or is exempt from taxation. |
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(g) Except as provided by Subsection (h), a marketplace |
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provider is not liable for failure to collect and remit the correct |
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amount of taxes imposed under this chapter if the marketplace |
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provider demonstrates that the failure resulted from the |
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marketplace provider's good faith reliance on incorrect |
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information provided by the marketplace seller. The marketplace |
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seller is liable for a deficiency resulting from incorrect |
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information provided by the marketplace seller. |
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(h) A marketplace provider and marketplace seller that are |
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affiliates or associates, as defined by Section 1.002, Business |
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Organizations Code, are jointly and severally liable for a |
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deficiency resulting from a sale made by the marketplace seller |
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through the marketplace. |
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(i) This section does not affect the tax liability of a |
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purchaser under Section 151.052 or 151.102. |
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(j) A court may not certify an action brought against a |
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marketplace provider concerning this section as a class action. |
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(k) The comptroller may adopt rules and forms to implement |
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this section and by rule except certain small marketplace providers |
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from some or all of the requirements of this section. |
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SECTION 3. Section 151.704, Tax Code, is amended to read as |
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follows: |
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Sec. 151.704. SALES TAX ABSORPTION [PROHIBITED
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ADVERTISING]; CRIMINAL PENALTY. (a) Except as provided by |
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Subsections (b) and (d), a [A] retailer commits an offense if the |
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retailer directly or indirectly advertises, holds out, or states to |
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a customer or to the public that the tax is not part of the sales |
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price payable by the customer [retailer:
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[(1) will assume, absorb, or refund a part of the tax;
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or
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[(2) will not add the tax to the sales price of a taxable
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item sold, leased, or rented]. |
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(b) A retailer may directly or indirectly advertise, hold |
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out, or state to a customer or to the public that the retailer will |
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pay the tax for the customer if: |
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(1) the retailer indicates in the advertisement, |
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holding out, or statement that the retailer is paying the tax for |
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the customer; |
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(2) the retailer does not indicate or imply in the |
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advertisement, holding out, or statement that the sale is exempt or |
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excluded from taxation; and |
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(3) any purchaser's receipt or other statement given |
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to the customer listing the sales price paid or to be paid by the |
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customer separately states the amount of the tax and indicates that |
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the tax will be paid by the retailer. |
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(c) Notwithstanding Section 151.052, 151.102, or 151.103, a |
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retailer who directly or indirectly advertises, holds out, or |
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states to a customer or to the public that the retailer will pay the |
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tax for the customer is liable for the tax. The retailer's liability |
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continues until the tax is paid to the state. |
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(d) This section does not prohibit a utility from billing a |
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customer in one lump-sum price including the utility sales price |
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and the amount of the tax imposed by this chapter. |
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(e) [(c)] An offense under this section is a misdemeanor |
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punishable by a fine of not more than $500. |
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SECTION 4. Section 321.203, Tax Code, is amended by adding |
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Subsection (e-1) to read as follows: |
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(e-1) Notwithstanding any other provision of this section, |
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a sale of a taxable item made by a marketplace seller through a |
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marketplace as provided by Section 151.0242 is consummated at the |
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location in this state to which the item is shipped or delivered or |
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at which possession is taken by the purchaser. |
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SECTION 5. Section 323.203, Tax Code, is amended by adding |
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Subsection (e-1) to read as follows: |
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(e-1) Notwithstanding any other provision of this section, |
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a sale of a taxable item made by a marketplace seller through a |
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marketplace as provided by Section 151.0242 is consummated at the |
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location in this state to which the item is shipped or delivered or |
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at which possession is taken by the purchaser. |
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SECTION 6. The changes in law made by this Act do not affect |
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tax liability accruing before the effective date of this Act. That |
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liability continues in effect as if this Act had not been enacted, |
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and the former law is continued in effect for the collection of |
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taxes due and for civil and criminal enforcement of the liability |
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for those taxes. |
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SECTION 7. The change in law made by this Act applies only |
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to an offense committed on or after the effective date of this Act. |
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An offense committed before the effective date of this Act is |
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governed by the law in effect on the date the offense was committed, |
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and the former law is continued in effect for that purpose. For |
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purposes of this section, an offense was committed before the |
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effective date of this Act if any element of the offense occurred |
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before that date. |
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SECTION 8. This Act takes effect October 1, 2019. |