By: Deuell, Jackson S.B. No. 1202
A BILL TO BE ENTITLED
AN ACT
relating to the collection and allocation of local sales and use
taxes.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subdivision (3), Subsection (a), Section
321.002, Tax Code, is amended to read as follows:
(3) "Place of business of the retailer" means an
established outlet, office, or location operated by the retailer or
the retailer's agent or employee for the purpose of receiving
orders for taxable items and includes any location at which three or
more orders are received by the retailer during a calendar year. A
warehouse, storage yard, or manufacturing plant is not a "place of
business of the retailer" unless at least three orders are received
by the retailer during the calendar year at the warehouse, storage
yard, or manufacturing plant. An outlet, office, facility, or
location that contracts with a retail or commercial business
engaged in activities to which this chapter applies to process for
that business invoices or bills of lading onto which sales tax is
added is not a "place of business of the retailer" if the
comptroller determines that the outlet, office, facility, or
location functions or exists to avoid the tax imposed by this
chapter or to rebate a portion of the tax imposed by this chapter to
the contracting business. Notwithstanding any other provision of
this subdivision, a kiosk is not a "place of business of the
retailer." In this subdivision, "kiosk" means a small stand-alone
area or structure that:
(A) is used solely to display merchandise or to
submit orders for taxable items from a data entry device, or both;
(B) is located entirely within a location that is
a place of business of another retailer, such as a department store
or shopping mall; and
(C) at which taxable items are not available for
immediate delivery to a customer.
SECTION 2. Section 321.203, Tax Code, is amended by
amending Subsections (c) and (d) and adding Subsections (c-1),
(c-2), and (c-3) to read as follows:
(c) If a retailer has more than one place of business in this
state, each [a] sale of each [a] taxable item by the retailer is
consummated at the [retailer's] place of business of the retailer
in this state where the retailer first receives the order, provided
that the order is placed in person by the purchaser or lessee of the
taxable item at the place of business of the retailer in this state
where the retailer first receives the order.
(c-1) If the retailer has more than one place of business in
this state and Subsection (c) does not apply, the sale is
consummated at the place of business of the retailer in this state:
(1) from which the retailer ships or delivers the
item, if the retailer ships or delivers the item to a point
designated by the purchaser or lessee; or
(2) where the purchaser or lessee takes possession of
and removes the item, if the purchaser or lessee takes possession of
and removes the item from a place of business of the retailer.
(c-2) Subsection (c) does not apply if:
(1) the taxable item is shipped or delivered from a
warehouse:
(A) that is a place of business of the retailer;
(B) in relation to which the retailer has an
economic development agreement with:
(i) the municipality in which the warehouse
is located that was entered into under Chapter 380, 504, or 505,
Local Government Code, or a predecessor statute, before January 1,
2009; or
(ii) the county in which the warehouse is
located that was entered into under Chapter 381, Local Government
Code, before January 1, 2009; and
(C) in relation to which the municipality
provides information relating to the economic development
agreement as required by Subsection (c-3) by the deadline
prescribed by that subsection, or, if appropriate, the county
complies with Section 323.203(c-3) by the deadline prescribed by
that section; and
(2) the place of business of the retailer at which the
retailer first receives the order in the manner described by
Subsection (c) is a retail outlet identified in the information
required by Subsection (c-3) or Section 323.203(c-3) as being
served by the warehouse on January 1, 2009.
(c-3) Not later than September 1, 2009, a municipality that
has entered into an economic development agreement described by
Subsection (c-2) shall send to the comptroller information
prescribed by the comptroller relating to the agreement that
identifies each warehouse subject to the agreement and each retail
outlet that, on January 1, 2009, was served by that warehouse. The
comptroller shall prescribe the manner in which the information
must be provided. The provision of information to the comptroller
under this subsection does not affect whether information described
by this subsection is confidential or excepted from required public
disclosure. This subsection and Subsection (c-2) expire September
1, 2014.
(d) If the retailer has more than one place of business in
this state and Subsections (c) and (c-1) do not apply [neither the
possession of a taxable item is taken at nor shipment or delivery of
the item is made from the retailer's place of business in this
state], the sale is consummated at:
(1) the [retailer's] place of business of the retailer
in this state where the order is received; or
(2) if the order is not received at a place of business
of the retailer, the place of business from which the retailer's
agent or employee who took the order operates.
SECTION 3. Section 323.203, Tax Code, is amended by
amending Subsections (c) and (d) and adding Subsections (c-1),
(c-2), and (c-3) to read as follows:
(c) If a retailer has more than one place of business in this
state, each [a] sale of each [a] taxable item by the retailer is
consummated at the [retailer's] place of business of the retailer
in this state where the retailer first receives the order, provided
that the order is placed in person by the purchaser or lessee of the
taxable item at the place of business of the retailer in this state
where the retailer first receives the order.
(c-1) If the retailer has more than one place of business in
this state and Subsection (c) does not apply, the sale is
consummated at the place of business of the retailer in this state:
(1) from which the retailer ships or delivers the
item, if the retailer ships or delivers the item to a point
designated by the purchaser or lessee; or
(2) where the purchaser or lessee takes possession of
and removes the item, if the purchaser or lessee takes possession of
and removes the item from a place of business of the retailer.
(c-2) Subsection (c) does not apply if:
(1) the taxable item is shipped or delivered from a
warehouse:
(A) that is a place of business of the retailer;
(B) in relation to which the retailer has an
economic development agreement with:
(i) the county in which the warehouse is
located that was entered into under Chapter 381, Local Government
Code, before January 1, 2009; or
(ii) the municipality in which the
warehouse is located that was entered into under Chapter 380, 504,
or 505, Local Government Code, or a predecessor statute, before
January 1, 2009; and
(C) in relation to which the county provides
information relating to the economic development agreement as
required by Subsection (c-3) by the deadline prescribed by that
subsection, or, if appropriate, the municipality complies with
Section 321.203(c-3) by the deadline prescribed by that section;
and
(2) the place of business of the retailer at which the
retailer first receives the order in the manner described by
Subsection (c) is a retail outlet identified in the information
required by Subsection (c-3) or Section 321.203(c-3) as being
served by the warehouse on January 1, 2009.
(c-3) Not later than September 1, 2009, a county that has
entered into an economic development agreement described by
Subsection (c-2) shall send to the comptroller information
prescribed by the comptroller relating to the agreement that
identifies each warehouse subject to the agreement and each retail
outlet that, on January 1, 2009, was served by that warehouse. The
comptroller shall prescribe the manner in which the information
must be provided. The provision of information to the comptroller
under this subsection does not affect whether information described
by this subsection is confidential or excepted from required public
disclosure. This subsection and Subsection (c-2) expire September
1, 2014.
(d) If the retailer has more than one place of business in
this state and Subsections (c) and (c-1) do not apply [neither the
possession of a taxable item is taken at nor shipment or delivery of
the item is made from the retailer's place of business in this
state], the sale is consummated at:
(1) the [retailer's] place of business of the retailer
in this state where the order is received; or
(2) if the order is not received at a place of business
of the retailer, the place of business from which the retailer's
agent or employee who took the order operates.
SECTION 4. 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 5. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2009.
(b) Subsection (c-3), Section 321.203, and Subsection
(c-3), Section 323.203, Tax Code, as added by this Act, take effect
immediately if this Act receives a vote of two-thirds of all the
members elected to each house, as provided by Section 39, Article
III, Texas Constitution. If this Act does not receive the vote
necessary for immediate effect, Subsection (c-3), Section 321.203
and Subsection (c-3), Section 323.203, Tax Code, as added by this
Act, take effect August 31, 2009.