Texas 2011 - 82nd Regular

Texas Senate Bill SB1798 Compare Versions

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1	1	By: West S.B. No. 1798
2	2	(In the Senate - Filed March 11, 2011; March 23, 2011, read
3	3	first time and referred to Committee on Finance; April 21, 2011,
4	4	reported adversely, with favorable Committee Substitute by the
5	5	following vote: Yeas 10, Nays 1; April 21, 2011, sent to printer.)
6	6	COMMITTEE SUBSTITUTE FOR S.B. No. 1798 By: West
7	7
8	8
9	9	A BILL TO BE ENTITLED
10	10	AN ACT
11	11	relating to retailers engaged in business in this state for
12	12	purposes of sales and use taxes.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Subsection (b), Section 151.008, Tax Code, is
15	15	amended to read as follows:
16	16	(b) "Seller" and "retailer" include:
17	17	(1) a person in the business of making sales at auction
18	18	of tangible personal property owned by the person or by another;
19	19	(2) a person who makes more than two sales of taxable
20	20	items during a 12-month period, including sales made in the
21	21	capacity of an assignee for the benefit of creditors or receiver or
22	22	trustee in bankruptcy;
23	23	(3) a person regarded by the comptroller as a seller or
24	24	retailer under Section 151.024 [of this code];
25	25	(4) a hotel, motel, or owner or lessor of an office or
26	26	residential building or development that contracts and pays for
27	27	telecommunications services for resale to guests or tenants; [and]
28	28	(5) a person who engages in regular or systematic
29	29	solicitation of sales of taxable items in this state by the
30	30	distribution of catalogs, periodicals, advertising flyers, or
31	31	other advertising, by means of print, radio, or television media,
32	32	or by mail, telegraphy, telephone, computer data base, cable,
33	33	optic, microwave, or other communication system for the purpose of
34	34	effecting sales of taxable items; and
35	35	(6) a person who, under an agreement with another
36	36	person, is:
37	37	(A) entrusted with possession of tangible
38	38	personal property with respect to which the other person has title
39	39	or another ownership interest; and
40	40	(B) authorized to sell, lease, or rent the
41	41	property, or otherwise permit access to or use of the property,
42	42	without additional action by the person having title to or another
43	43	ownership interest in the property.
44	44	SECTION 2. Section 151.107, Tax Code, is amended by
45	45	amending Subsection (a) and adding Subsections (a-1) and (d) to
46	46	read as follows:
47	47	(a) For the purpose of this subchapter and in relation to
48	48	the use tax, a retailer is engaged in business in this state if the
49	49	retailer:
50	50	(1) maintains, occupies, or uses in this state
51	51	permanently, temporarily, directly, or indirectly or through a
52	52	subsidiary or agent by whatever name, an office, place of
53	53	distribution, sales or sample room or place, warehouse, storage
54	54	place, or any other location where [place of] business is
55	55	conducted;
56	56	(2) has a representative, agent, salesman, canvasser,
57	57	or solicitor operating in this state under the authority of the
58	58	retailer or its subsidiary for the purpose of selling, fulfilling,
59	59	or delivering or the taking of orders for a taxable item;
60	60	(3) derives receipts or receives compensation
61	61	[rentals] from the sale, use, [a] lease, or rental of tangible
62	62	personal property situated in this state;
63	63	(4) engages in regular or systematic solicitation of
64	64	sales of taxable items in this state by the distribution of
65	65	catalogs, periodicals, advertising flyers, or other advertising,
66	66	by means of print, radio, or television media, or by mail,
67	67	telegraphy, telephone, computer data base, cable, optic,
68	68	microwave, or other communication system for the purpose of
69	69	effecting sales of taxable items;
70	70	(5) solicits orders for taxable items by mail or
71	71	through other media and under federal law is subject to or permitted
72	72	to be made subject to the jurisdiction of this state for purposes of
73	73	collecting the taxes imposed by this chapter;
74	74	(6) has a franchisee or licensee operating under its
75	75	trade name if the franchisee or licensee is required to collect the
76	76	tax under this section; [or]
77	77	(7) holds a substantial ownership interest in, or is
78	78	owned in whole or substantial part by, a business entity that
79	79	maintains a location in this state at which business is conducted
80	80	and if:
81	81	(A) the retailer sells the same or a
82	82	substantially similar line of products as the business entity with
83	83	the location in this state and sells those products under a business
84	84	name that is the same or substantially similar to the business name
85	85	of the business entity with the location in this state; or
86	86	(B) the Texas facilities, Texas employees, or
87	87	other representatives of the business entity with the location in
88	88	this state are used to:
89	89	(i) advertise, promote, or facilitate sales
90	90	by the retailer to consumers; or
91	91	(ii) perform any other activity on behalf
92	92	of the retailer that is intended to establish or maintain a
93	93	marketplace for the retailer in this state, including receiving or
94	94	exchanging returned merchandise;
95	95	(8) holds a substantial ownership interest in, or is
96	96	owned in whole or substantial part by, a business entity that:
97	97	(A) maintains in this state a distribution house,
98	98	sales house, warehouse, or similar location at which business is
99	99	conducted; and
100	100	(B) delivers property sold by the retailer or an
101	101	affiliate of the retailer to consumers; or
102	102	(9) otherwise does business in this state.
103	103	(a-1) For the purpose of this subchapter and in relation to
104	104	the use tax, there is a rebuttable presumption that a retailer that
105	105	is part of an affiliated group is engaged in business in this state
106	106	if another member entity of the affiliated group is a retailer
107	107	engaged in business in this state. The presumption may be rebutted
108	108	by evidence that, during the preceding 12-month period, the other
109	109	member entity that is a retailer engaged in business in this state
110	110	did not engage in any activity described by this section on behalf
111	111	of the retailer to which the presumption applies.
112	112	(d) In this section:
113	113	(1) "Affiliated group" has the meaning assigned by
114	114	Section 171.0001.
115	115	(2) "Ownership" includes:
116	116	(A) direct ownership; and
117	117	(B) indirect ownership through a parent entity,
118	118	subsidiary, or affiliate.
119	119	(3) "Substantial" means, with respect to an ownership
120	120	interest, an interest in an entity that is at least equal to the
121	121	degree of ownership or equity interest that would require a
122	122	beneficial owner to file a disclosure statement under 15 U.S.C.
123	123	Section 78p or a successor to that statute.
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	* * * * *