Bill Text: TX HB255 | 2011-2012 | 82nd Legislature | Comm Sub

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Bill Title: Relating to the enforcement of tax laws; providing a criminal penalty.

Sponsorship: Partisan Bill (Republican 1)

Status: (Introduced - Dead) 2011-05-03 - Laid on the table subject to call [HB255 Detail]

Download: Texas-2011-HB255-Comm_Sub.html

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82R15875 MXM-F
By: Hilderbran H.B. No. 255
Substitute the following for H.B. No. 255:
By: Otto C.S.H.B. No. 255

A BILL TO BE ENTITLED
AN ACT
relating to the enforcement of tax laws; providing a criminal
penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 13.13, Code of Criminal Procedure, is
amended to read as follows:
Art. 13.13. CONSPIRACY. Criminal conspiracy may be
prosecuted in the county where the conspiracy was entered into, in
the county where the conspiracy was agreed to be executed, or in any
county in which one or more of the conspirators does any act to
effect an object of the conspiracy. If the object of the conspiracy
is an offense classified as a felony under the Tax Code, regardless
of whether the offense was committed, the conspiracy may be
prosecuted in any county in which venue is proper under the Tax Code
for the offense. If a conspiracy was entered into outside this
State under circumstances that give this State jurisdiction to
prosecute the offender, the offender may be prosecuted in the
county where the conspiracy was agreed to be executed, [or] in the
county where any one of the conspirators was found, or in Travis
County.
SECTION 2. Article 13.21, Code of Criminal Procedure, is
amended to read as follows:
Art. 13.21. ORGANIZED CRIMINAL ACTIVITY. The offense of
engaging in organized criminal activity may be prosecuted in any
county in which any act is committed to effect an objective of the
combination, or, if the prosecution is based on a criminal offense
classified as a felony under the Tax Code, in any county in which
venue is proper under the Tax Code for the offense.
SECTION 3. Chapter 13, Code of Criminal Procedure, is
amended by adding Article 13.35 to read as follows:
Art. 13.35. MONEY LAUNDERING. Money laundering may be
prosecuted in the county in which the offense was committed as
provided by Article 13.18 or, if the prosecution is based on a
criminal offense classified as a felony under the Tax Code, in any
county in which venue is proper under the Tax Code for the offense.
SECTION 4. Chapter 42, Code of Criminal Procedure, is
amended by adding Article 42.0182 to read as follows:
Art. 42.0182. FINDINGS REGARDING TAX FRAUD. (a) In the
trial of an offense under the Tax Code or an offense under the Penal
Code related to the administration of taxes, the state may file a
written request with the court in which the indictment or
information is pending for the court to make affirmative findings
regarding the commission of tax fraud as described by Subsection
(b). The state must provide a copy of the written request to the
defendant before the date the trial begins.
(b) If the state requests affirmative findings in the manner
required by Subsection (a), the court shall make the requested
affirmative findings and enter the findings in the papers in the
case if the court finds by clear and convincing evidence that:
(1) the defendant's failure to pay a tax or file a
report when due, as required by Title 2 or 3, Tax Code, was a result
of fraud or an intent to evade the tax;
(2) the defendant altered, destroyed, or concealed any
record, document, or thing, or presented to the comptroller any
altered or fraudulent record, document, or thing, or otherwise
engaged in fraudulent conduct for the apparent purpose of affecting
the course or outcome of an audit, investigation, redetermination,
or other proceeding before the comptroller; or
(3) the defendant's failure to file a report under
Chapter 162, Tax Code, or to pay a tax under that chapter when the
tax became due is attributable to fraud or an intent to evade the
application of Chapter 162, Tax Code, or a rule adopted under
Chapter 111 or 162, Tax Code.
SECTION 5. Section 403.012, Government Code, is amended to
read as follows:
Sec. 403.012. ACCEPTANCE OF FEDERAL MONEY OR PROPERTY. (a)
The comptroller may accept federal money for a state agency not
otherwise restricted by statute or by rider or special provision in
the General Appropriations Act, if the state agency has certified
to the comptroller that the agency will be responsible for
compliance with applicable federal and state law.
(b) The comptroller may accept money or property under a
federal equitable sharing program. In accepting the money or
property, the comptroller shall comply with federal program
requirements, including those governing accounting and the
permissible use of an award.
SECTION 6. Section 411.109(a), Government Code, is amended
to read as follows:
(a) The comptroller is entitled to obtain from the
department criminal history record information maintained by the
department that the comptroller believes is necessary for the
enforcement or administration of Chapter 151, 152, [153,] 154, [or]
155, or 162, Tax Code, including criminal history record
information that relates to a person who is:
(1) an applicant for a permit under any of those
chapters;
(2) a permit holder under any of those chapters;
(3) an officer, director, stockholder owning 10
percent or more of the outstanding stock, partner, owner, or
managing employee of an applicant or permit holder under any of
those chapters that is a corporation, association, joint venture,
syndicate, partnership, or proprietorship;
(4) believed to have violated any of those chapters;
or
(5) being considered by the comptroller for employment
as a peace officer.
SECTION 7. Section 34.01(4), Penal Code, is amended to read
as follows:
(4) "Proceeds" means funds acquired or derived
directly or indirectly from, produced through, or realized through:
(A) an act; or
(B) conduct that constitutes an offense under
Section 151.7032, Tax Code.
SECTION 8. Section 71.02(a), Penal Code, as amended by
Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357 (S.B. 554),
Acts of the 81st Legislature, Regular Session, 2009, is reenacted
and amended to read as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
the person commits or conspires to commit one or more of the
following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, forgery, deadly conduct, assault punishable as a Class A
misdemeanor, burglary of a motor vehicle, or unauthorized use of a
motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10; [or]
(14) any offense under Section 38.06, 38.07, 38.09, or
38.11;
(15) [(14)] any offense under Section 42.10;
(16) [(14)] any offense under Section 46.06(a)(1) or
46.14; or
(17) any offense classified as a felony under the Tax
Code.
SECTION 9. Chapter 101, Tax Code, is amended by adding
Section 101.0021 to read as follows:
Sec. 101.0021. APPLICABILITY OF PENAL CODE. In addition to
Section 1.03, Penal Code, Sections 15.02 and 15.04, Penal Code, and
Title 11, Penal Code, apply to offenses prescribed by this code.
SECTION 10. Subchapter A, Chapter 111, Tax Code, is amended
by adding Section 111.00452 to read as follows:
Sec. 111.00452. EMPLOYMENT OF INVESTIGATORS. (a) In
addition to the authority granted by Section 111.0045, an
investigator employed under that section may investigate:
(1) any criminal offense under this code; or
(2) any criminal offense under any other law if the
offense relates directly or indirectly to a tax, fee, penalty, or
charge administered, collected, or enforced by the comptroller.
(b) An investigator commissioned by the comptroller as a
peace officer has the powers of a peace officer coextensive with the
boundaries of this state.
SECTION 11. Section 111.006(c), Tax Code, is amended to
read as follows:
(c) The comptroller or the attorney general may:
(1) use information or records made confidential by
[provisions of] this title to enforce:
(A) [any provisions of] this title; or
(B) the criminal laws of this state or the United
States; or
(2) [may] authorize the [their] use of information or
records made confidential by this title in a judicial or an
administrative proceeding in which this state, another state, or
the federal government is a party.
SECTION 12. Section 111.061, Tax Code, is amended by adding
Subsection (c) to read as follows:
(c) The penalties provided by Subsection (b) are intended to
be remedial in nature and are provided for the protection of state
revenue and to reimburse the state for expenses incurred as a result
of fraud, including expenses incurred in conducting an
investigation.
SECTION 13. Sections 111.207(a) and (b), Tax Code, are
amended to read as follows:
(a) In determining the expiration date for a period when a
tax imposed by this title may be assessed, collected, or refunded,
the following periods are not considered:
(1) the period following the date of a tax payment made
under protest, but only if a lawsuit is timely filed in accordance
with Chapter 112;
(2) the period during which a judicial proceeding is
pending in a court of competent jurisdiction to determine the
amount of the tax due; [and]
(3) the period during which an administrative
redetermination or refund hearing is pending before the
comptroller; and
(4) the period during which an indictment or
information is pending for a felony offense related to the
administration of the Tax Code against any taxpayer or any person
personally liable or potentially personally liable for the payment
of the tax under Section 111.0611.
(b) The suspension of a period of limitation under
Subsection (a)(1), (2), or (3) [(a)] is limited to the issues that
were contested under those subdivisions [Subdivision (1), (2), or
(3) of that subsection].
SECTION 14. Section 151.025(a), Tax Code, is amended to
read as follows:
(a) All sellers and all other persons storing, using, or
consuming in this state a taxable item purchased from a retailer
shall keep the following records in the form the comptroller
requires:
(1) records of all gross receipts, including
documentation in the form of receipts, shipping manifests,
invoices, and other pertinent papers, from each sale, rental,
lease, taxable service, and taxable labor transaction occurring
during each reporting period;
(2) records in the form of receipts, shipping
manifests, invoices, and other pertinent papers of all purchases of
taxable items from every source made during each reporting period;
[and]
(3) records in the form of receipts, shipping
manifests, invoices, and other pertinent papers that substantiate
each claimed deduction or exclusion authorized by law; and
(4) records in the form of sales receipts, invoices,
or other equivalent records showing all sales and use tax, and any
money represented to be sales and use tax, received or collected on
each sale, rental, lease, or service transaction during each
reporting period.
SECTION 15. The heading to Section 151.7032, Tax Code, is
amended to read as follows:
Sec. 151.7032. FAILURE TO PAY TAXES COLLECTED; CRIMINAL
PENALTY AND AGGREGATION OF AMOUNTS INVOLVED.
SECTION 16. Section 151.7032, Tax Code, is amended by
amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) An offense under this section is:
(1) a Class C misdemeanor if the amount of the tax
collected and not paid is less than $50 [$10,000];
(2) a Class B misdemeanor if the amount of the tax
collected and not paid is $50 or more but less than $500;
(3) a Class A misdemeanor if the amount of the tax
collected and not paid is $500 or more but less than $1,500;
(4) a state jail felony if the amount of the tax
collected and not paid is $1,500 [$10,000] or more but less than
$20,000;
(5) [(3)] a felony of the third degree if the amount of
the tax collected and not paid is $20,000 or more but less than
$100,000; [and]
(6) [(4)] a felony of the second degree if the amount
of the tax collected and not paid is $100,000 or more but less than
$200,000; and
(7) a felony of the first degree if the amount of the
tax collected and not paid is $200,000 or more.
(c) When tax is collected and not paid in violation of
Subsection (a) pursuant to one scheme or continuous course of
conduct, the conduct may be considered as one offense and the
amounts aggregated in determining the grade of the offense.
SECTION 17. Section 151.707(b), Tax Code, is amended to
read as follows:
(b) An offense under Subsection (a) [(a)(1) or (a)(2) of
this section] is:
(1) a Class C misdemeanor if the tax avoided by the use
of the exemption or resale certificate is less than $20;
(2) a Class B misdemeanor if the tax avoided by the use
of the exemption or resale certificate is $20 or more, but less than
$200;
(3) a Class A misdemeanor if the tax avoided by the use
of the exemption or resale certificate is $200 or more, but less
than $750;
(4) a felony of the third degree if the tax avoided by
the use of the exemption or resale certificate is $750 or more, but
less than $20,000; or
(5) a felony of the second degree if the tax avoided by
the use of the exemption or resale certificate is $20,000 or more.
SECTION 18. Subchapter L, Chapter 151, Tax Code, is amended
by adding Section 151.7075 to read as follows:
Sec. 151.7075. FAILURE TO PRODUCE CERTAIN RECORDS AFTER
USING RESALE CERTIFICATE; CRIMINAL PENALTY. (a) A person commits
an offense if the person intentionally fails to produce to the
comptroller records that document a taxpayer's taxable sale of
items that the taxpayer obtained using a resale certificate.
(b) The records to which Subsection (a) applies are records:
(1) required to be kept under Section 151.025; and
(2) requested by the comptroller under Section 151.023
that are not produced in the period required by that section.
(c) The items to which Subsection (a) applies are items the
sales of which are required to be reported to the comptroller under
Section 151.433, 154.212, or 155.105.
(d) An offense under this section is:
(1) a Class C misdemeanor if the tax avoided by the use
of the resale certificate is less than $20;
(2) a Class B misdemeanor if the tax avoided by the use
of the resale certificate is $20 or more but less than $200;
(3) a Class A misdemeanor if the tax avoided by the use
of the resale certificate is $200 or more but less than $750;
(4) a felony of the third degree if the tax avoided by
the use of the resale certificate is $750 or more but less than
$20,000; or
(5) a felony of the second degree if the tax avoided by
the use of the resale certificate is $20,000 or more.
(e) It is an affirmative defense to prosecution under this
section that the items listed for purchase on the resale
certificate had not been resold at the time of the comptroller's
request for records under Section 151.023.
(f) If conduct described by Subsection (a) is related to one
scheme or continuous course of conduct, the conduct may be
considered as one offense and the amounts of tax avoided may be
aggregated in determining the grade of the offense.
SECTION 19. Section 154.405, Tax Code, is amended by adding
Subsection (e) to read as follows:
(e) A forfeiture proceeding under this section is an in rem
proceeding.
SECTION 20. Section 154.406, Tax Code, is amended by
amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) The comptroller may sell property forfeited to the state
at public or private sale in any commercially reasonable manner or
retain the property for official use by the comptroller's criminal
investigation division. Property retained for use under this
subsection may later be sold by the comptroller under this section.
(d) If an automobile or other vehicle seized under Section
154.403 is forfeited and retained by the comptroller under
Subsection (a), the comptroller is considered the owner under
Subtitle A, Title 7, Transportation Code. The Texas Department of
Motor Vehicles shall issue a certificate of title for the vehicle to
the comptroller. The comptroller may maintain, repair, use, and
operate the vehicle with money appropriated for current operations.
SECTION 21. Subchapter H, Chapter 154, Tax Code, is amended
by adding Section 154.407 to read as follows:
Sec. 154.407. PHOTOGRAPHIC EVIDENCE IN CASES INVOLVING
SEIZED CIGARETTES. (a) The comptroller may photograph cigarettes
seized under Section 154.403 before their sale under this
subchapter.
(b) In a proceeding arising out of this chapter, including a
criminal proceeding, the state is not required to produce the
actual cigarettes.
(c) The photographs are admissible in evidence under rules
of law governing the admissibility of photographs. The photographs
are as admissible in evidence as are the cigarettes themselves.
(d) A person's rights of discovery and inspection of
tangible physical evidence are satisfied if the photographs taken
under this section are made available to the person by the state on
order of any court or other entity having jurisdiction over the
proceeding.
SECTION 22. Section 155.145, Tax Code, is amended by adding
Subsection (e) to read as follows:
(e) A forfeiture proceeding under this section is an in rem
proceeding.
SECTION 23. Section 155.1451, Tax Code, is amended by
amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) The comptroller may sell property forfeited to the state
at public or private sale in any commercially reasonable manner or
retain the property for official use by the comptroller's criminal
investigation division. Property retained for use under this
subsection may later be sold by the comptroller under this section.
(d) If an automobile or other vehicle seized under Section
155.143 is forfeited and retained by the comptroller under
Subsection (a), the comptroller is considered the owner under
Subtitle A, Title 7, Transportation Code. The Texas Department of
Motor Vehicles shall issue a certificate of title for the vehicle to
the comptroller. The comptroller may maintain, repair, use, and
operate the vehicle with money appropriated for current operations.
SECTION 24. Subchapter E, Chapter 155, Tax Code, is amended
by adding Section 155.146 to read as follows:
Sec. 155.146. PHOTOGRAPHIC EVIDENCE IN CASES INVOLVING
SEIZED TOBACCO PRODUCTS. (a) The comptroller may photograph
tobacco products seized under Section 155.143 before their sale
under this subchapter.
(b) In a proceeding arising out of this chapter, including a
criminal proceeding, the state is not required to produce the
actual tobacco products.
(c) The photographs are admissible in evidence under rules
of law governing the admissibility of photographs. The photographs
are as admissible in evidence as are the tobacco products
themselves.
(d) A person's rights of discovery and inspection of
tangible physical evidence are satisfied if the photographs taken
under this section are made available to the person by the state on
order of any court or other entity having jurisdiction over the
proceeding.
SECTION 25. Section 162.401, Tax Code, is amended by adding
Subsection (c) to read as follows:
(c) The penalties provided by Subsection (b) are intended to
be remedial in nature and are provided for the protection of state
revenue and to reimburse the state for expenses incurred as a result
of fraud, including expenses incurred in conducting an
investigation.
SECTION 26. Except as provided by Section 27 of this Act,
the changes in law made by this Act apply 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 covered by the
law in effect when 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 27. The change in law made by this Act in amending
Article 13.13, Code of Criminal Procedure, applies only to a
criminal case in which the indictment or information is presented
to the court on or after the effective date of this Act. A criminal
case in which the indictment or information was presented to the
court before the effective date of this Act is governed by the law
in effect when the indictment or information was presented, and the
former law is continued in effect for that purpose.
SECTION 28. This Act applies only to a seizure of property
that occurs on or after the effective date of this Act. A seizure of
property that occurs before the effective date of this Act is
covered by the law in effect as it existed on the date the seizure
occurred, and the former law is continued in effect for that
purpose.
SECTION 29. This Act takes effect September 1, 2011.