Texas 2011 - 82nd Regular

Texas House Bill HB2403 Compare Versions

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1	1	By: Otto, et al. (Senate Sponsor - West) H.B. No. 2403
2	2	(In the Senate - Received from the House April 28, 2011;
3	3	May 3, 2011, read first time and referred to Committee on Finance;
4	4	May 11, 2011, reported favorably by the following vote: Yeas 14,
5	5	Nays 0; May 11, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to retailers engaged in business in this state for
11	11	purposes of sales and use taxes.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 151.008(b), Tax Code, is amended to read
14	14	as follows:
15	15	(b) "Seller" and "retailer" include:
16	16	(1) a person in the business of making sales at auction
17	17	of tangible personal property owned by the person or by another;
18	18	(2) a person who makes more than two sales of taxable
19	19	items during a 12-month period, including sales made in the
20	20	capacity of an assignee for the benefit of creditors or receiver or
21	21	trustee in bankruptcy;
22	22	(3) a person regarded by the comptroller as a seller or
23	23	retailer under Section 151.024 [of this code];
24	24	(4) a hotel, motel, or owner or lessor of an office or
25	25	residential building or development that contracts and pays for
26	26	telecommunications services for resale to guests or tenants; [and]
27	27	(5) a person who engages in regular or systematic
28	28	solicitation of sales of taxable items in this state by the
29	29	distribution of catalogs, periodicals, advertising flyers, or
30	30	other advertising, by means of print, radio, or television media,
31	31	or by mail, telegraphy, telephone, computer data base, cable,
32	32	optic, microwave, or other communication system for the purpose of
33	33	effecting sales of taxable items; and
34	34	(6) a person who, under an agreement with another
35	35	person, is:
36	36	(A) entrusted with possession of tangible
37	37	personal property with respect to which the other person has title
38	38	or another ownership interest; and
39	39	(B) authorized to sell, lease, or rent the
40	40	property without additional action by the person having title to or
41	41	another ownership interest in the property.
42	42	SECTION 2. Section 151.107, Tax Code, is amended by
43	43	amending Subsection (a) and adding Subsection (d) to read as
44	44	follows:
45	45	(a) For the purpose of this subchapter and in relation to
46	46	the use tax, a retailer is engaged in business in this state if the
47	47	retailer:
48	48	(1) maintains, occupies, or uses in this state
49	49	permanently, temporarily, directly, or indirectly or through a
50	50	subsidiary or agent by whatever name, an office, [place of]
51	51	distribution center, sales or sample room or place, warehouse,
52	52	storage place, or any other physical location where [place of]
53	53	business is conducted;
54	54	(2) has a representative, agent, salesman, canvasser,
55	55	or solicitor operating in this state under the authority of the
56	56	retailer or its subsidiary for the purpose of selling or delivering
57	57	or the taking of orders for a taxable item;
58	58	(3) derives receipts [rentals] from the sale, [a]
59	59	lease, or rental of tangible personal property situated in this
60	60	state;
61	61	(4) engages in regular or systematic solicitation of
62	62	sales of taxable items in this state by the distribution of
63	63	catalogs, periodicals, advertising flyers, or other advertising,
64	64	by means of print, radio, or television media, or by mail,
65	65	telegraphy, telephone, computer data base, cable, optic,
66	66	microwave, or other communication system for the purpose of
67	67	effecting sales of taxable items;
68	68	(5) solicits orders for taxable items by mail or
69	69	through other media and under federal law is subject to or permitted
70	70	to be made subject to the jurisdiction of this state for purposes of
71	71	collecting the taxes imposed by this chapter;
72	72	(6) has a franchisee or licensee operating under its
73	73	trade name if the franchisee or licensee is required to collect the
74	74	tax under this section; [or]
75	75	(7) holds a substantial ownership interest in, or is
76	76	owned in whole or substantial part by, a person who maintains a
77	77	location in this state from which business is conducted and if:
78	78	(A) the retailer sells the same or a
79	79	substantially similar line of products as the person with the
80	80	location in this state and sells those products under a business
81	81	name that is the same as or substantially similar to the business
82	82	name of the person with the location in this state; or
83	83	(B) the facilities or employees of the person
84	84	with the location in this state are used to:
85	85	(i) advertise, promote, or facilitate sales
86	86	by the retailer to consumers; or
87	87	(ii) perform any other activity on behalf
88	88	of the retailer that is intended to establish or maintain a
89	89	marketplace for the retailer in this state, including receiving or
90	90	exchanging returned merchandise;
91	91	(8) holds a substantial ownership interest in, or is
92	92	owned in whole or substantial part by, a person that:
93	93	(A) maintains a distribution center, warehouse,
94	94	or similar location in this state; and
95	95	(B) delivers property sold by the retailer to
96	96	consumers; or
97	97	(9) otherwise does business in this state.
98	98	(d) In this section:
99	99	(1) "Ownership" includes:
100	100	(A) direct ownership;
101	101	(B) common ownership; and
102	102	(C) indirect ownership through a parent entity,
103	103	subsidiary, or affiliate.
104	104	(2) "Substantial" means, with respect to an ownership
105	105	interest, an interest in an entity that is:
106	106	(A) if the entity is a corporation, at least 50
107	107	percent, directly or indirectly, of:
108	108	(i) the total combined voting power of all
109	109	classes of stock of the corporation; or
110	110	(ii) the beneficial ownership interest in
111	111	the voting stock of the corporation;
112	112	(B) if the entity is a trust, at least 50 percent,
113	113	directly or indirectly, of the current beneficial interest in the
114	114	trust corpus or income;
115	115	(C) if the entity is a limited liability company,
116	116	at least 50 percent, directly or indirectly, of:
117	117	(i) the total membership interest of the
118	118	limited liability company; or
119	119	(ii) the beneficial ownership interest in
120	120	the membership interest of the limited liability company; or
121	121	(D) for any entity, including a partnership or
122	122	association, at least 50 percent, directly or indirectly, of the
123	123	capital or profits interest in the entity.
124	124	SECTION 3. The change in law made by this Act does not
125	125	affect tax liability accruing before the effective date of this
126	126	Act. That liability continues in effect as if this Act had not been
127	127	enacted, and the former law is continued in effect for the
128	128	collection of taxes due and for civil and criminal enforcement of
129	129	the liability for those taxes.
130	130	SECTION 4. This Act takes effect January 1, 2012.
131	131	* * * * *