Bill Text: TX HB2403 | 2011-2012 | 82nd Legislature | Enrolled
Bill Title: Relating to retailers engaged in business in this state for purposes of sales and use taxes.
Spectrum: Bipartisan Bill
Status: (Vetoed) 2011-05-31 - Vetoed by the Governor [HB2403 Detail]
Download: Texas-2011-HB2403-Enrolled.html
H.B. No. 2403 |
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relating to retailers engaged in business in this state for | ||
purposes of sales and use taxes. | ||
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 [ |
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(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; [ |
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(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. | ||
SECTION 2. Section 151.107, Tax Code, is amended by | ||
amending Subsection (a) and adding Subsection (d) to read as | ||
follows: | ||
(a) For the purpose of this subchapter and in relation to | ||
the use tax, a retailer is engaged in business in this state if the | ||
retailer: | ||
(1) maintains, occupies, or uses in this state | ||
permanently, temporarily, directly, or indirectly or through a | ||
subsidiary or agent by whatever name, an office, [ |
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distribution center, sales or sample room or place, warehouse, | ||
storage place, or any other physical location where [ |
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business is conducted; | ||
(2) has a representative, agent, salesman, canvasser, | ||
or solicitor operating in this state under the authority of the | ||
retailer or its subsidiary for the purpose of selling or delivering | ||
or the taking of orders for a taxable item; | ||
(3) derives receipts [ |
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lease, or rental of tangible personal property situated in this | ||
state; | ||
(4) 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; | ||
(5) solicits orders for taxable items by mail or | ||
through other media and under federal law is subject to or permitted | ||
to be made subject to the jurisdiction of this state for purposes of | ||
collecting the taxes imposed by this chapter; | ||
(6) has a franchisee or licensee operating under its | ||
trade name if the franchisee or licensee is required to collect the | ||
tax under this section; [ |
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(7) holds a substantial ownership interest in, or is | ||
owned in whole or substantial part by, a person who maintains a | ||
location in this state from which business is conducted and if: | ||
(A) the retailer sells the same or a | ||
substantially similar line of products as the person with the | ||
location in this state and sells those products under a business | ||
name that is the same as or substantially similar to the business | ||
name of the person with the location in this state; or | ||
(B) the facilities or employees of the person | ||
with the location in this state are used to: | ||
(i) advertise, promote, or facilitate sales | ||
by the retailer to consumers; or | ||
(ii) perform any other activity on behalf | ||
of the retailer that is intended to establish or maintain a | ||
marketplace for the retailer in this state, including receiving or | ||
exchanging returned merchandise; | ||
(8) holds a substantial ownership interest in, or is | ||
owned in whole or substantial part by, a person that: | ||
(A) maintains a distribution center, warehouse, | ||
or similar location in this state; and | ||
(B) delivers property sold by the retailer to | ||
consumers; or | ||
(9) otherwise does business in this state. | ||
(d) In this section: | ||
(1) "Ownership" includes: | ||
(A) direct ownership; | ||
(B) common ownership; and | ||
(C) indirect ownership through a parent entity, | ||
subsidiary, or affiliate. | ||
(2) "Substantial" means, with respect to an ownership | ||
interest, an interest in an entity that is: | ||
(A) if the entity is a corporation, at least 50 | ||
percent, directly or indirectly, of: | ||
(i) the total combined voting power of all | ||
classes of stock of the corporation; or | ||
(ii) the beneficial ownership interest in | ||
the voting stock of the corporation; | ||
(B) if the entity is a trust, at least 50 percent, | ||
directly or indirectly, of the current beneficial interest in the | ||
trust corpus or income; | ||
(C) if the entity is a limited liability company, | ||
at least 50 percent, directly or indirectly, of: | ||
(i) the total membership interest of the | ||
limited liability company; or | ||
(ii) the beneficial ownership interest in | ||
the membership interest of the limited liability company; or | ||
(D) for any entity, including a partnership or | ||
association, at least 50 percent, directly or indirectly, of the | ||
capital or profits interest in the entity. | ||
SECTION 3. The change in law made by this Act does 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 4. This Act takes effect January 1, 2012. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I certify that H.B. No. 2403 was passed by the House on April | ||
27, 2011, by the following vote: Yeas 125, Nays 20, 3 present, not | ||
voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
I certify that H.B. No. 2403 was passed by the Senate on May | ||
13, 2011, by the following vote: Yeas 30, Nays 1 | ||
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______________________________ | ||
Secretary of the Senate | ||
APPROVED: _____________________ | ||
Date | ||
_____________________ | ||
Governor |