Bill Text: TX HB2403 | 2011-2012 | 82nd Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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-Introduced.html
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-Introduced.html
By: Otto | H.B. No. 2403 |
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relating to a retailer engaged in business in this state. | ||
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 of this code; | ||
(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) any person who, pursuant to an agreement with a | ||
person with an ownership interest in or title to tangible personal | ||
property, has been entrusted with the possession of any such | ||
property and has the power, without further action on the part of | ||
the person with an ownership interest in or title to the tangible | ||
personal property, to sell, lease, or rent the property. | ||
SECTION 2. Section 151.107, Tax Code, is amended by | ||
amending Subsections (a) and (b) and adding Subsections (c), (d), | ||
(e), and (f) to read as follows: | ||
Sec. 151.107. RETAILER ENGAGED IN BUSINESS IN THIS STATE. | ||
(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 [ |
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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 [ |
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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; | ||
(7) utilizes a website on a server in this state from | ||
which digital goods are sold or delivered; [ |
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(8) holds a substantial ownership interest in, or is | ||
owned in whole or in substantial part by, a person who maintains a | ||
location in this state from which business is conducted, if: | ||
(A) the retailer sells the same or a | ||
substantially similar line of products as the related retailer in | ||
this state and does so under the same or substantially similar | ||
business name; or, | ||
(B) the facilities or employees of the related | ||
person in this state are used to advertise, promote, or facilitate | ||
sales by the retailer to consumers or to perform activities that are | ||
intended to establish or maintain a marketplace in this state for | ||
the retailer, including receiving or exchanging returned | ||
merchandise; | ||
(9) holds a substantial ownership interest in, or is | ||
owned in whole or in substantial part by, a person that maintains a | ||
distribution center, warehouse, or similar location in this state | ||
that delivers property sold by the retailer to consumers; or | ||
(10) [ |
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(b) "Substantial ownership interest" as used in this | ||
section means: | ||
(1) at least 50 percent, directly or indirectly, of | ||
the total combined voting power of all classes of stock of the | ||
corporation, or at least 50 percent, directly or indirectly, of the | ||
beneficial ownership interest in the voting stock of the | ||
corporation; | ||
(2) at least 50 percent, directly or indirectly, of | ||
the capital or profits interest in the partnership; | ||
(3) at least 50 percent, directly or indirectly, of | ||
the capital or profits interest in the association; | ||
(4) at least 50 percent, directly or indirectly, of | ||
the current beneficial interest in the trust corpus or income; | ||
(5) either at least 50 percent, directly or | ||
indirectly, of the total membership interest of the limited | ||
liability company or at least 50 percent, directly or indirectly, | ||
of the beneficial ownership interest in the membership interest of | ||
the limited liability company; or | ||
(6) at least 50 percent, directly or indirectly, of | ||
the capital or profits interest in the entity. | ||
(c) "Ownership" as used in this section means, and includes | ||
but is not limited to, both direct ownership and indirect ownership | ||
through a parent, subsidiary, or affiliate. | ||
(d) [ |
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broadcaster, printer, outdoor advertising firm, advertising | ||
distributor, or publisher that broadcasts, publishes, displays, or | ||
distributes paid commercial advertising in this state that is | ||
intended to be disseminated primarily to consumers located in this | ||
state and is only secondarily disseminated to bordering | ||
jurisdictions, including advertising appearing exclusively in a | ||
Texas edition or section of a national publication, is considered | ||
for purposes of this section to be the agent of the person placing | ||
the advertisement and that person placing the advertisement is | ||
considered a retailer engaged in business in this state. The agency | ||
relationship recognized by this subsection is for the sole purpose | ||
of providing a presence in this state for the imposition of a tax on | ||
out-of-state advertisers or sellers. The agent has no | ||
responsibility to report, or liability to pay, a tax for the | ||
out-of-state advertiser or seller and is not restricted by this | ||
subchapter from accepting ads from out-of-state advertisers or | ||
sellers. | ||
SECTION 3. APPLICABILITY OF FORMER LAW. The change in law | ||
made by the 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 those taxes. | ||
SECTION 4. This Act takes effect January 1, 2012. |