Bill Text: TX HB2358 | 2019-2020 | 86th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the payment of certain sales and use taxes by a retailer.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2019-06-14 - Effective on . . . . . . . . . . . . . . . October 1, 2019 [HB2358 Detail]
Download: Texas-2019-HB2358-Introduced.html
Bill Title: Relating to the payment of certain sales and use taxes by a retailer.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2019-06-14 - Effective on . . . . . . . . . . . . . . . October 1, 2019 [HB2358 Detail]
Download: Texas-2019-HB2358-Introduced.html
86R9289 BEF-F | ||
By: Guillen | H.B. No. 2358 |
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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; [ |
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(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 [ |
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Subsections (b) and (d), a [ |
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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 [ |
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(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) [ |
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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. |