Bill Text: TX HB97 | 2017 | 85th Legislature 1st Special Session | Introduced
Bill Title: Relating to actions by a retailer that constitute engaging in business in this state for purposes of the use tax.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2017-07-20 - Referred to Ways & Means [HB97 Detail]
Download: Texas-2017-HB97-Introduced.html
85S10019 CJC-F | ||
By: Springer | H.B. No. 97 |
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relating to actions by a retailer that constitute engaging in | ||
business in this state for purposes of the use tax. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 151.107(a), Tax Code, is amended 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, distribution | ||
center, sales or sample room or place, warehouse, storage place, or | ||
any other physical location where 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 from the sale, 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) 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; [ |
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(9) in the previous calendar year or the current | ||
calendar year: | ||
(A) has total receipts of more than $100,000 from | ||
taxable items delivered in this state, including taxable items | ||
delivered electronically to purchasers in this state; or | ||
(B) has at least 200 sales of taxable items | ||
delivered in this state, including taxable items delivered | ||
electronically to purchasers in this state; or | ||
(10) otherwise does business in this state. | ||
SECTION 2. Section 151.801, Tax Code, is amended by | ||
amending Subsection (a) and adding Subsection (c-3) to read as | ||
follows: | ||
(a) Except for the amounts allocated under Subsections (b), | ||
(c), [ |
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taxes imposed by this chapter shall be deposited to the credit of | ||
the general revenue fund. | ||
(c-3) Except to the extent Subsection (b), (c), or (c-2) | ||
requires a different allocation, the comptroller shall deposit to | ||
the credit of the property tax relief fund established under | ||
Section 403.109, Government Code, the amount of the proceeds from | ||
the tax imposed under Section 151.101 and received by the | ||
comptroller that is attributable to the collection of that tax by | ||
retailers considered to be engaged in business in this state solely | ||
on the basis of Section 151.107(a)(9). The comptroller may require | ||
a retailer described by this subsection to report to the | ||
comptroller as necessary to make the allocation under this | ||
subsection. | ||
SECTION 3. (a) The state may bring an action for | ||
declaratory judgment in a district court in Travis County under | ||
Chapter 37, Civil Practice and Remedies Code, to determine the | ||
constitutionality and other validity under the state or federal | ||
constitution of all or any part of Section 151.107(a)(9), Tax Code, | ||
as amended by this Act. This subsection applies without regard to | ||
whether the state has initiated an audit of, or other tax collection | ||
procedure against, any taxpayer involving Section 151.107(a)(9), | ||
Tax Code, as amended by this Act. This subsection does not | ||
authorize an award of attorney's fees against this state, and | ||
Section 37.009, Civil Practice and Remedies Code, does not apply to | ||
an action filed under this subsection. | ||
(b) An appeal of a declaratory judgment or order, however | ||
characterized, of a district court, including an appeal of the | ||
judgment of an appellate court, holding or otherwise determining | ||
that all or any part of Section 151.107(a)(9), Tax Code, as amended | ||
by this Act, is constitutional or unconstitutional, or otherwise | ||
valid or invalid, under the state or federal constitution is an | ||
accelerated appeal. | ||
(c) If the judgment or order is interlocutory, an | ||
interlocutory appeal may be taken from the judgment or order and is | ||
an accelerated appeal. | ||
(d) A district court in Travis County may grant or deny a | ||
temporary or otherwise interlocutory injunction or a permanent | ||
injunction on the grounds of the constitutionality or | ||
unconstitutionality, or other validity or invalidity, under the | ||
state or federal constitution of all or any part of Section | ||
151.107(a)(9), Tax Code, as amended by this Act. | ||
(e) There is a direct appeal to the Texas Supreme Court from | ||
an order, however characterized, of a trial court granting or | ||
denying a temporary or otherwise interlocutory injunction or a | ||
permanent injunction on the grounds of the constitutionality or | ||
unconstitutionality, or other validity or invalidity, under the | ||
state or federal constitution of all or any part of Section | ||
151.107(a)(9), Tax Code, as amended by this Act. | ||
(f) The direct appeal is an accelerated appeal. | ||
(g) This section exercises the authority granted by Section | ||
3-b, Article V, Texas Constitution. | ||
(h) The filing of a direct appeal under this section will | ||
automatically stay any temporary or otherwise interlocutory | ||
injunction or permanent injunction granted in accordance with this | ||
section pending final determination by the Texas Supreme Court. | ||
(i) An appeal under this section, including an | ||
interlocutory, accelerated, or direct appeal, is governed, as | ||
applicable, by the Texas Rules of Appellate Procedure, including | ||
Rules 25.1(d)(6), 26.1(b), 28.1, 28.3, 32.1(g), 37.3(a)(1), | ||
38.6(a) and (b), 40.1(b), and 49.4. | ||
SECTION 4. While a declaratory judgment action under | ||
Section 3(a) of this Act or an appeal of a declaratory judgment or | ||
order, however characterized, in an action under Section 3(a) of | ||
this Act is pending, the state may not apply Section 151.107(a)(9), | ||
Tax Code, as amended by this Act, to any person unless: | ||
(1) the person consents to the application of Section | ||
151.107(a)(9), Tax Code, as amended by this Act, to the person; or | ||
(2) another court order or judgment has determined | ||
that Section 151.107(a)(9), Tax Code, as amended by this Act, is | ||
valid and constitutional as applied to the particular person. | ||
SECTION 5. 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 6. This Act takes effect January 1, 2018. |