|
|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
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, [place of] |
|
distribution center, sales or sample room or place, warehouse, |
|
storage place, or any other [place of] 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 [rentals] receipts from [a] 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) utilizes a website on a server in this state from |
|
which digital goods are sold or delivered; [or] |
|
(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) [(7)] otherwise does business in this state. |
|
(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) [(b)] Notwithstanding any other provision of law, a |
|
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. |