86R9289 BEF-F
By: Guillen H.B. No. 2358
A BILL TO BE ENTITLED
AN ACT
relating to the administration and collection of sales and use
taxes applicable to certain sales.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 151.008(b), Tax Code, is amended to read
as follows:
(b) "Seller" and "retailer" include:
(1) a person in the business of making sales at auction
of tangible personal property owned by the person or by another;
(2) a person who makes more than two sales of taxable
items during a 12-month period, including sales made in the
capacity of an assignee for the benefit of creditors or receiver or
trustee in bankruptcy;
(3) a person regarded by the comptroller as a seller or
retailer under Section 151.024;
(4) a hotel, motel, or owner or lessor of an office or
residential building or development that contracts and pays for
telecommunications services for resale to guests or tenants;
(5) a person who engages in regular or systematic
solicitation of sales of taxable items in this state by the
distribution of catalogs, periodicals, advertising flyers, or
other advertising, by means of print, radio, or television media,
or by mail, telegraphy, telephone, computer data base, cable,
optic, microwave, or other communication system for the purpose of
effecting sales of taxable items; [and]
(6) a person who, under an agreement with another
person, is:
(A) entrusted with possession of tangible
personal property with respect to which the other person has title
or another ownership interest; and
(B) authorized to sell, lease, or rent the
property without additional action by the person having title to or
another ownership interest in the property; and
(7) a person who is a marketplace provider under
Section 151.0242.
SECTION 2. Subchapter B, Chapter 151, Tax Code, is amended
by adding Section 151.0242 to read as follows:
Sec. 151.0242. MARKETPLACE PROVIDERS AND MARKETPLACE
SELLERS. (a) In this section:
(1) "Marketplace" means a physical or electronic
medium through which persons other than the owner or operator of the
medium make sales of taxable items. The term includes a store,
Internet website, software application, or catalog.
(2) "Marketplace provider" means a person who owns or
operates a marketplace and directly or indirectly processes sales
or payments for marketplace sellers.
(3) "Marketplace seller" means a seller, other than
the marketplace provider, who makes a sale of a taxable item through
a marketplace.
(b) Except as otherwise provided by this section, a
marketplace provider has the rights and duties of a seller or
retailer under this chapter with respect to sales made through the
marketplace.
(c) A marketplace provider shall:
(1) provide a collection certificate to each
marketplace seller certifying that the marketplace provider
assumes the rights and duties of a seller or retailer under this
chapter with respect to sales made by the marketplace seller
through the marketplace;
(2) report under Subchapter I all sales made through
the marketplace; and
(3) collect in the manner provided by Subchapters C
and D and remit the taxes imposed under this chapter on sales of
taxable items made through the marketplace.
(d) A marketplace seller who in good faith accepts a
marketplace provider's collection certificate under Subsection
(c)(1) shall exclude sales made through the marketplace from the
marketplace seller's report under Subchapter I, notwithstanding
Section 151.406.
(e) A marketplace seller shall retain records for all
marketplace sales as required by Section 151.025.
(f) A marketplace seller shall furnish to the marketplace
provider information that is required to correctly collect and
remit taxes imposed under this chapter. The information may
include a certification of taxability that an item being sold is a
taxable item, is not a taxable item, or is exempt from taxation.
(g) Except as provided by Subsection (h), a marketplace
provider is not liable for failure to collect and remit the correct
amount of taxes imposed under this chapter if the marketplace
provider demonstrates that the failure resulted from the
marketplace provider's good faith reliance on incorrect
information provided by the marketplace seller. The marketplace
seller is liable for a deficiency resulting from incorrect
information provided by the marketplace seller.
(h) A marketplace provider and marketplace seller that are
affiliates or associates, as defined by Section 1.002, Business
Organizations Code, are jointly and severally liable for a
deficiency resulting from a sale made by the marketplace seller
through the marketplace.
(i) This section does not affect the tax liability of a
purchaser under Section 151.052 or 151.102.
(j) A court may not certify an action brought against a
marketplace provider concerning this section as a class action.
(k) The comptroller may adopt rules and forms to implement
this section and by rule except certain small marketplace providers
from some or all of the requirements of this section.
SECTION 3. Section 151.704, Tax Code, is amended to read as
follows:
Sec. 151.704. SALES TAX ABSORPTION [PROHIBITED
ADVERTISING]; CRIMINAL PENALTY. (a) Except as provided by
Subsections (b) and (d), a [A] retailer commits an offense if the
retailer directly or indirectly advertises, holds out, or states to
a customer or to the public that the tax is not part of the sales
price payable by the customer [retailer:
[(1) will assume, absorb, or refund a part of the tax;
or
[(2) will not add the tax to the sales price of a taxable
item sold, leased, or rented].
(b) A retailer may directly or indirectly advertise, hold
out, or state to a customer or to the public that the retailer will
pay the tax for the customer if:
(1) the retailer indicates in the advertisement,
holding out, or statement that the retailer is paying the tax for
the customer;
(2) the retailer does not indicate or imply in the
advertisement, holding out, or statement that the sale is exempt or
excluded from taxation; and
(3) any purchaser's receipt or other statement given
to the customer listing the sales price paid or to be paid by the
customer separately states the amount of the tax and indicates that
the tax will be paid by the retailer.
(c) Notwithstanding Section 151.052, 151.102, or 151.103, a
retailer who directly or indirectly advertises, holds out, or
states to a customer or to the public that the retailer will pay the
tax for the customer is liable for the tax. The retailer's liability
continues until the tax is paid to the state.
(d) This section does not prohibit a utility from billing a
customer in one lump-sum price including the utility sales price
and the amount of the tax imposed by this chapter.
(e) [(c)] An offense under this section is a misdemeanor
punishable by a fine of not more than $500.
SECTION 4. Section 321.203, Tax Code, is amended by adding
Subsection (e-1) to read as follows:
(e-1) Notwithstanding any other provision of this section,
a sale of a taxable item made by a marketplace seller through a
marketplace as provided by Section 151.0242 is consummated at the
location in this state to which the item is shipped or delivered or
at which possession is taken by the purchaser.
SECTION 5. Section 323.203, Tax Code, is amended by adding
Subsection (e-1) to read as follows:
(e-1) Notwithstanding any other provision of this section,
a sale of a taxable item made by a marketplace seller through a
marketplace as provided by Section 151.0242 is consummated at the
location in this state to which the item is shipped or delivered or
at which possession is taken by the purchaser.
SECTION 6. The changes in law made by this Act do 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 7. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
governed by the law in effect on the date the offense was committed,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred
before that date.
SECTION 8. This Act takes effect October 1, 2019.