Texas 2017 - 85th 1st C.S.

Texas House Bill HB97 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85S10019 CJC-F
2	2	By: Springer H.B. No. 97
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to actions by a retailer that constitute engaging in
8	8	business in this state for purposes of the use tax.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 151.107(a), Tax Code, is amended to read
11	11	as follows:
12	12	(a) For the purpose of this subchapter and in relation to
13	13	the use tax, a retailer is engaged in business in this state if the
14	14	retailer:
15	15	(1) maintains, occupies, or uses in this state
16	16	permanently, temporarily, directly, or indirectly or through a
17	17	subsidiary or agent by whatever name, an office, distribution
18	18	center, sales or sample room or place, warehouse, storage place, or
19	19	any other physical location where business is conducted;
20	20	(2) has a representative, agent, salesman, canvasser,
21	21	or solicitor operating in this state under the authority of the
22	22	retailer or its subsidiary for the purpose of selling or delivering
23	23	or the taking of orders for a taxable item;
24	24	(3) derives receipts from the sale, lease, or rental
25	25	of tangible personal property situated in this state;
26	26	(4) engages in regular or systematic solicitation of
27	27	sales of taxable items in this state by the distribution of
28	28	catalogs, periodicals, advertising flyers, or other advertising,
29	29	by means of print, radio, or television media, or by mail,
30	30	telegraphy, telephone, computer data base, cable, optic,
31	31	microwave, or other communication system for the purpose of
32	32	effecting sales of taxable items;
33	33	(5) solicits orders for taxable items by mail or
34	34	through other media and under federal law is subject to or permitted
35	35	to be made subject to the jurisdiction of this state for purposes of
36	36	collecting the taxes imposed by this chapter;
37	37	(6) has a franchisee or licensee operating under its
38	38	trade name if the franchisee or licensee is required to collect the
39	39	tax under this section;
40	40	(7) holds a substantial ownership interest in, or is
41	41	owned in whole or substantial part by, a person who maintains a
42	42	location in this state from which business is conducted and if:
43	43	(A) the retailer sells the same or a
44	44	substantially similar line of products as the person with the
45	45	location in this state and sells those products under a business
46	46	name that is the same as or substantially similar to the business
47	47	name of the person with the location in this state; or
48	48	(B) the facilities or employees of the person
49	49	with the location in this state are used to:
50	50	(i) advertise, promote, or facilitate sales
51	51	by the retailer to consumers; or
52	52	(ii) perform any other activity on behalf
53	53	of the retailer that is intended to establish or maintain a
54	54	marketplace for the retailer in this state, including receiving or
55	55	exchanging returned merchandise;
56	56	(8) holds a substantial ownership interest in, or is
57	57	owned in whole or substantial part by, a person that:
58	58	(A) maintains a distribution center, warehouse,
59	59	or similar location in this state; and
60	60	(B) delivers property sold by the retailer to
61	61	consumers; [or]
62	62	(9) in the previous calendar year or the current
63	63	calendar year:
64	64	(A) has total receipts of more than $100,000 from
65	65	taxable items delivered in this state, including taxable items
66	66	delivered electronically to purchasers in this state; or
67	67	(B) has at least 200 sales of taxable items
68	68	delivered in this state, including taxable items delivered
69	69	electronically to purchasers in this state; or
70	70	(10) otherwise does business in this state.
71	71	SECTION 2. Section 151.801, Tax Code, is amended by
72	72	amending Subsection (a) and adding Subsection (c-3) to read as
73	73	follows:
74	74	(a) Except for the amounts allocated under Subsections (b),
75	75	(c), [and] (c-2), and (c-3), all proceeds from the collection of the
76	76	taxes imposed by this chapter shall be deposited to the credit of
77	77	the general revenue fund.
78	78	(c-3) Except to the extent Subsection (b), (c), or (c-2)
79	79	requires a different allocation, the comptroller shall deposit to
80	80	the credit of the property tax relief fund established under
81	81	Section 403.109, Government Code, the amount of the proceeds from
82	82	the tax imposed under Section 151.101 and received by the
83	83	comptroller that is attributable to the collection of that tax by
84	84	retailers considered to be engaged in business in this state solely
85	85	on the basis of Section 151.107(a)(9). The comptroller may require
86	86	a retailer described by this subsection to report to the
87	87	comptroller as necessary to make the allocation under this
88	88	subsection.
89	89	SECTION 3. (a) The state may bring an action for
90	90	declaratory judgment in a district court in Travis County under
91	91	Chapter 37, Civil Practice and Remedies Code, to determine the
92	92	constitutionality and other validity under the state or federal
93	93	constitution of all or any part of Section 151.107(a)(9), Tax Code,
94	94	as amended by this Act. This subsection applies without regard to
95	95	whether the state has initiated an audit of, or other tax collection
96	96	procedure against, any taxpayer involving Section 151.107(a)(9),
97	97	Tax Code, as amended by this Act. This subsection does not
98	98	authorize an award of attorney's fees against this state, and
99	99	Section 37.009, Civil Practice and Remedies Code, does not apply to
100	100	an action filed under this subsection.
101	101	(b) An appeal of a declaratory judgment or order, however
102	102	characterized, of a district court, including an appeal of the
103	103	judgment of an appellate court, holding or otherwise determining
104	104	that all or any part of Section 151.107(a)(9), Tax Code, as amended
105	105	by this Act, is constitutional or unconstitutional, or otherwise
106	106	valid or invalid, under the state or federal constitution is an
107	107	accelerated appeal.
108	108	(c) If the judgment or order is interlocutory, an
109	109	interlocutory appeal may be taken from the judgment or order and is
110	110	an accelerated appeal.
111	111	(d) A district court in Travis County may grant or deny a
112	112	temporary or otherwise interlocutory injunction or a permanent
113	113	injunction on the grounds of the constitutionality or
114	114	unconstitutionality, or other validity or invalidity, under the
115	115	state or federal constitution of all or any part of Section
116	116	151.107(a)(9), Tax Code, as amended by this Act.
117	117	(e) There is a direct appeal to the Texas Supreme Court from
118	118	an order, however characterized, of a trial court granting or
119	119	denying a temporary or otherwise interlocutory injunction or a
120	120	permanent injunction on the grounds of the constitutionality or
121	121	unconstitutionality, or other validity or invalidity, under the
122	122	state or federal constitution of all or any part of Section
123	123	151.107(a)(9), Tax Code, as amended by this Act.
124	124	(f) The direct appeal is an accelerated appeal.
125	125	(g) This section exercises the authority granted by Section
126	126	3-b, Article V, Texas Constitution.
127	127	(h) The filing of a direct appeal under this section will
128	128	automatically stay any temporary or otherwise interlocutory
129	129	injunction or permanent injunction granted in accordance with this
130	130	section pending final determination by the Texas Supreme Court.
131	131	(i) An appeal under this section, including an
132	132	interlocutory, accelerated, or direct appeal, is governed, as
133	133	applicable, by the Texas Rules of Appellate Procedure, including
134	134	Rules 25.1(d)(6), 26.1(b), 28.1, 28.3, 32.1(g), 37.3(a)(1),
135	135	38.6(a) and (b), 40.1(b), and 49.4.
136	136	SECTION 4. While a declaratory judgment action under
137	137	Section 3(a) of this Act or an appeal of a declaratory judgment or
138	138	order, however characterized, in an action under Section 3(a) of
139	139	this Act is pending, the state may not apply Section 151.107(a)(9),
140	140	Tax Code, as amended by this Act, to any person unless:
141	141	(1) the person consents to the application of Section
142	142	151.107(a)(9), Tax Code, as amended by this Act, to the person; or
143	143	(2) another court order or judgment has determined
144	144	that Section 151.107(a)(9), Tax Code, as amended by this Act, is
145	145	valid and constitutional as applied to the particular person.
146	146	SECTION 5. The change in law made by this Act does not
147	147	affect tax liability accruing before the effective date of this
148	148	Act. That liability continues in effect as if this Act had not been
149	149	enacted, and the former law is continued in effect for the
150	150	collection of taxes due and for civil and criminal enforcement of
151	151	the liability for those taxes.
152	152	SECTION 6. This Act takes effect January 1, 2018.