Texas 2019 - 86th Regular

Texas Senate Bill SB119 Compare Versions

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

Old	New	Differences
1	1	86R1184 CJC-F
2	2	By: West S.B. No. 119
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 and to the
9	9	allocation of certain revenue derived from that tax.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 151.107(a), Tax Code, is amended to read
12	12	as follows:
13	13	(a) For the purpose of this subchapter and in relation to
14	14	the use tax, a retailer is engaged in business in this state if the
15	15	retailer:
16	16	(1) maintains, occupies, or uses in this state
17	17	permanently, temporarily, directly, or indirectly or through a
18	18	subsidiary or agent by whatever name, an office, distribution
19	19	center, sales or sample room or place, warehouse, storage place, or
20	20	any other physical location where business is conducted;
21	21	(2) has a representative, agent, salesman, canvasser,
22	22	or solicitor operating in this state under the authority of the
23	23	retailer or its subsidiary for the purpose of selling or delivering
24	24	or the taking of orders for a taxable item;
25	25	(3) derives receipts from the sale, lease, or rental
26	26	of tangible personal property situated in this state;
27	27	(4) engages in regular or systematic solicitation of
28	28	sales of taxable items in this state by the distribution of
29	29	catalogs, periodicals, advertising flyers, or other advertising,
30	30	by means of print, radio, or television media, or by mail,
31	31	telegraphy, telephone, computer data base, cable, optic,
32	32	microwave, or other communication system for the purpose of
33	33	effecting sales of taxable items;
34	34	(5) solicits orders for taxable items by mail or
35	35	through other media and under federal law is subject to or permitted
36	36	to be made subject to the jurisdiction of this state for purposes of
37	37	collecting the taxes imposed by this chapter;
38	38	(6) has a franchisee or licensee operating under its
39	39	trade name if the franchisee or licensee is required to collect the
40	40	tax under this section;
41	41	(7) holds a substantial ownership interest in, or is
42	42	owned in whole or substantial part by, a person who maintains a
43	43	location in this state from which business is conducted and if:
44	44	(A) the retailer sells the same or a
45	45	substantially similar line of products as the person with the
46	46	location in this state and sells those products under a business
47	47	name that is the same as or substantially similar to the business
48	48	name of the person with the location in this state; or
49	49	(B) the facilities or employees of the person
50	50	with the location in this state are used to:
51	51	(i) advertise, promote, or facilitate sales
52	52	by the retailer to consumers; or
53	53	(ii) perform any other activity on behalf
54	54	of the retailer that is intended to establish or maintain a
55	55	marketplace for the retailer in this state, including receiving or
56	56	exchanging returned merchandise;
57	57	(8) holds a substantial ownership interest in, or is
58	58	owned in whole or substantial part by, a person that:
59	59	(A) maintains a distribution center, warehouse,
60	60	or similar location in this state; and
61	61	(B) delivers property sold by the retailer to
62	62	consumers; [or]
63	63	(9) in the previous calendar year or the current
64	64	calendar year:
65	65	(A) has total receipts of more than $100,000 from
66	66	taxable items delivered in this state, including taxable items
67	67	delivered electronically to purchasers in this state; or
68	68	(B) has at least 200 sales of taxable items
69	69	delivered in this state, including taxable items delivered
70	70	electronically to purchasers in this state; or
71	71	(10) otherwise does business in this state.
72	72	SECTION 2. Section 151.801, Tax Code, is amended by
73	73	amending Subsection (a) and adding Subsection (c-3) to read as
74	74	follows:
75	75	(a) Except for the amounts allocated under Subsections (b),
76	76	(c), [and] (c-2), and (c-3), all proceeds from the collection of the
77	77	taxes imposed by this chapter shall be deposited to the credit of
78	78	the general revenue fund.
79	79	(c-3) Except to the extent Subsection (b), (c), or (c-2)
80	80	requires a different allocation, the comptroller shall deposit to
81	81	the credit of the property tax relief fund established under
82	82	Section 403.109, Government Code, the amount of the proceeds from
83	83	the tax imposed under Section 151.101 and received by the
84	84	comptroller that is attributable to the collection of that tax by
85	85	retailers considered to be engaged in business in this state solely
86	86	on the basis of Section 151.107(a)(9). The comptroller may require
87	87	a retailer described by this subsection to report to the
88	88	comptroller as necessary to make the allocation under this
89	89	subsection.
90	90	SECTION 3. (a) The state may bring an action for
91	91	declaratory judgment in a district court in Travis County under
92	92	Chapter 37, Civil Practice and Remedies Code, to determine the
93	93	constitutionality and other validity under the state or federal
94	94	constitution of all or any part of Section 151.107(a)(9), Tax Code,
95	95	as amended by this Act. This subsection applies without regard to
96	96	whether the state has initiated an audit of, or other tax collection
97	97	procedure against, any taxpayer involving Section 151.107(a)(9),
98	98	Tax Code, as amended by this Act. This subsection does not
99	99	authorize an award of attorney's fees against this state, and
100	100	Section 37.009, Civil Practice and Remedies Code, does not apply to
101	101	an action filed under this subsection.
102	102	(b) An appeal of a declaratory judgment or order, however
103	103	characterized, of a district court, including an appeal of the
104	104	judgment of an appellate court, holding or otherwise determining
105	105	that all or any part of Section 151.107(a)(9), Tax Code, as amended
106	106	by this Act, is constitutional or unconstitutional, or otherwise
107	107	valid or invalid, under the state or federal constitution is an
108	108	accelerated appeal.
109	109	(c) If the judgment or order is interlocutory, an
110	110	interlocutory appeal may be taken from the judgment or order and is
111	111	an accelerated appeal.
112	112	(d) A district court in Travis County may grant or deny a
113	113	temporary or otherwise interlocutory injunction or a permanent
114	114	injunction on the grounds of the constitutionality or
115	115	unconstitutionality, or other validity or invalidity, under the
116	116	state or federal constitution of all or any part of Section
117	117	151.107(a)(9), Tax Code, as amended by this Act.
118	118	(e) There is a direct appeal to the Texas Supreme Court from
119	119	an order, however characterized, of a trial court granting or
120	120	denying a temporary or otherwise interlocutory injunction or a
121	121	permanent injunction on the grounds of the constitutionality or
122	122	unconstitutionality, or other validity or invalidity, under the
123	123	state or federal constitution of all or any part of Section
124	124	151.107(a)(9), Tax Code, as amended by this Act.
125	125	(f) The direct appeal is an accelerated appeal.
126	126	(g) This section exercises the authority granted by Section
127	127	3-b, Article V, Texas Constitution.
128	128	(h) The filing of a direct appeal under this section will
129	129	automatically stay any temporary or otherwise interlocutory
130	130	injunction or permanent injunction granted in accordance with this
131	131	section pending final determination by the Texas Supreme Court.
132	132	(i) An appeal under this section, including an
133	133	interlocutory, accelerated, or direct appeal, is governed, as
134	134	applicable, by the Texas Rules of Appellate Procedure, including
135	135	Rules 25.1(d)(6), 26.1(b), 28.1, 28.3, 32.1(g), 37.3(a)(1),
136	136	38.6(a) and (b), 40.1, and 49.4.
137	137	SECTION 4. While a declaratory judgment action under
138	138	Section 3(a) of this Act or an appeal of a declaratory judgment or
139	139	order, however characterized, in an action under Section 3(a) of
140	140	this Act is pending, the state may not apply Section 151.107(a)(9),
141	141	Tax Code, as amended by this Act, to any person unless:
142	142	(1) the person consents to the application of Section
143	143	151.107(a)(9), Tax Code, as amended by this Act, to the person; or
144	144	(2) another court order or judgment has determined
145	145	that Section 151.107(a)(9), Tax Code, as amended by this Act, is
146	146	valid and constitutional as applied to the particular person.
147	147	SECTION 5. The change in law made by this Act does not
148	148	affect tax liability accruing before the effective date of this
149	149	Act. That liability continues in effect as if this Act had not been
150	150	enacted, and the former law is continued in effect for the
151	151	collection of taxes due and for civil and criminal enforcement of
152	152	the liability for those taxes.
153	153	SECTION 6. This Act takes effect September 1, 2019.