HBA-JRA H.B. 3212 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 3212
By: McCall
Ways & Means
4/8/1999
Introduced



BACKGROUND AND PURPOSE 

Each legislative session, the Comptroller of Public Accounts identifies
certain aspects of the Tax Code that contain technical errors, ambiguous
language, or outdated section references and suggests amendments that would
correct, clarify, or conform those provisions.  H.B. 3212 amends language
regarding general collection and enforcement procedures and the application
and administration of certain taxes.  This bill affects consolidated court
costs, insurance tax, state and local sales and use tax, collection
procedures, motor vehicle sales tax, motor fuels tax, tobacco tax, state
and local hotel occupancy tax, franchise tax, mixed beverage tax,
occupation tax, and sulphur tax, among others. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Comptroller of Public Accounts in
SECTION 66 and that rulemaking authority previously delegated to the
Comptroller of Public Accounts is modified in SECTION 64 of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 102.075(g), Code of Criminal Procedure, to
authorize a municipality or county to retain 10 percent of the money
collected under this article (Court Costs for Special Services) as a
service fee for collection if the municipality or county remits the funds
to the Comptroller of Public Accounts (comptroller) by the last day of the
month following each calendar quarter.  Makes a nonsubstantive change. 

SECTION 2.  Amends Section 12(b), Article 1.14-1, Insurance Code, to
provide that the report and tax required by this section (Independently
Procured Insurance Tax) are due on or before May 15, rather than March 1,
of the calendar year after the calendar year in which the insurance was
procured, continued, or renewed or on another date prescribed by the
comptroller. 

SECTION 3.  Amends Sections 12(a) and (b), Article 1.14-2, Insurance Code,
as follows: 

(a)  Requires a surplus lines agent to file a report and pay taxes to the
comptroller on forms prescribed by the comptroller.  Requires that the
amount of taxes be based on gross premiums written or received during the
calendar year ending on the preceding December 31.  Requires a tax
prepayment to be required any time accrued taxes due equal or exceed
$70,000.  Requires that the prepayment and the report form be due by the
15th day of the month following the month in which accrued taxes total
$70,000.  Makes conforming changes. 

(b)  Deletes text requiring the surplus lines agent to maintain surplus
lines premium receipt tax funds in a separate account.  Makes a
nonsubstantive change. 

SECTION 4.  Amends Section 9(b), Article 3.50-3, Insurance Code (Texas
State College and University Employees Uniform Insurance Benefits Act), to
provide that premiums on policies, insurance contracts, or agreements with
health maintenance organizations established under this Act are not subject
to any regulatory fee or surcharge, including premium or maintenance taxes
or fees. 

SECTION 5.  Amends Section 11(b), Article 3.50-4, Insurance Code (Texas
Public School  Employees Group Insurance Act), to provide that a premium or
contribution on a policy, insurance contract, or agreement authorized as
provided by this articles is not subject to any regulatory fee or
surcharge, including premium or maintenance taxes or fees. 

SECTION 6.  Amends Section 326.029(a), Local Government Code, to require a
commissioners court by resolution or ordinance to declare that a library
district is created and declare the amount of the local sales and use tax
adopted if a majority of the voters approve such an act. 

SECTION 7.  Amends Section 326.092(a), Local Government Code, to delete
Section 323.405, Tax Code, from the list of sections which do not apply to
the imposition, computation, administration, and governance of the sales
and use tax. 

SECTION 8.  Amends Section 101.003, Tax Code, by adding Subdivision (13),
to define "tax." 

SECTION 9.  Amends Section 111.0041(b), Tax Code, to delete the exception
of Section 191.024(b), Tax Code, which was previously repealed, from the
provision that this section (Records) prevails over any other conflicting
provision of this title (State Taxation). 

SECTION 10.  Amends Section 111.104(e), Tax Code, to delete the exception
of those taxes that qualify for refund allowed under Section 151.318(g) or
(n) (entitling a person engaged in manufacturing, processing, fabricating,
or repairing tangible personal property for ultimate sale and a person
engaged in overhauling, retrofitting, or repairing jet turbine aircraft
engines and their component parts to a refund of sales and use taxes), from
the application of this section (Refunds). 

SECTION 11.  Amends Section 111.107, Tax Code, to delete a refund made or
credit issued under a court order under Sections 151.318(g) or (n) from the
list of refunds which a person is authorized to request after the
expiration of the period during which the comptroller is authorized to
assess a deficiency for the tax. 

SECTION 12.  Amends Sections 151.310(c) and (e), Tax Code, as follows:

(c)  Authorizes a taxable item manufactured by or donated to a qualified
organization or chapter of the organization to be sold tax free regardless
of the sales price to any purchaser other than the donor. 

(e)  Requires a nonprofit hospital or hospital system that qualifies for an
exemption from federal income taxes under certain provisions of Section
501, Internal Revenue Code, to provide community benefits that include
charity care and government-sponsored indigent health care as set forth in
Subchapter D (Duties of Nonprofit Hospitals), Chapter 311 (Powers and
Duties of Hospitals), Health and Safety Code, rather than as set forth in
this section.  Deletes text setting forth the charity care and community
benefits to be provided. 

SECTION 13.  Amends Section 151.312, Tax Code, to include periodicals and
writings presented on audio tape, video tape, and computer disk among the
periodicals and writings that are exempt from limited sales, excise, and
use taxes. 

SECTION 14.  Amends Sections 151.318(a), (c), (g), (o), (q), and (s), Tax
Code, as follows: 

(a)  Provides that the property and services listed in this section are
exempt from limited sales, excise, and use taxes if they are sold, leased,
or rented to, or stored, used, or consumed by a manufacturer. 

(c)  Provides that certain types of piping remain eligible for the
exemption.  Deletes text relating to property not used in an actual
manufacturing, processing, or fabrication operation. Redesignates existing
Subdivision (4) to Subdivision (3).  Makes conforming and nonsubstantive
changes. 

(g)  Deletes existing subsection and moves text substantially to Subsection
(a). 

 (o)  Provides that the production of a publication for the dissemination
of general news of general interest printed on newsprint and distributed to
the general public free of charge at a daily, weekly, or other short
interval is considered "manufacturing" for purposes of this section, rather
than of Subsections (d)-(m) of this section. 

(q)  Makes conforming changes.

(s)  Makes a conforming change.

SECTION 15.  Amends Section 151.321(a), Tax Code, to exempt a taxable item
manufactured or donated to a qualified student organization from sales tax
regardless of sales price unless sold to the donor. 

SECTION 16.  Amends Section 151.350(d), Tax Code, to redefine "restore."

SECTION 17.  Amends Sections 151.429(d) and (g), Tax Code, to change
references to the Texas Department of Commerce to the Texas Department of
Economic Development. 

SECTION 18.  Amends Section 151.429(e)(1), Tax Code, to change a reference
to the Texas Department of Commerce to the Texas Department of Economic
Development. 

SECTION 19.  Amends Sections 151.4291(d) and (g), Tax Code, to change
references to the Texas Department of Commerce to the Texas Department of
Economic Development. 

SECTION 20.  Amends Section 151.4291(e)(1), Tax Code, to change a reference
to the Texas Department of Commerce to the Texas Department of Economic
Development. 

SECTION 21.  Amends Section 151.431(a), Tax Code, to change a reference to
the Texas Department of Commerce to the Texas Department of Economic
Development. 

SECTION 22.  Amends Section 152.041, Tax Code, by adding Subsection (e), as
follows: 

(e)  Authorizes the county tax assessor-collector to accept an application
for title to a motor vehicle without the payment of additional tax by a
motor vehicle title applicant if the applicant has paid the tax to the
seller who is required by this chapter (Taxes on Sale, Rental, And Use of
Motor Vehicles) to collect the tax and the seller has failed to remit the
tax to the tax assessor-collector.  Provides that the applicant must
present satisfactory documentation to the tax assessor-collector that the
tax was paid before title to the motor vehicle may be issued.  Requires the
tax assessor-collector to notify the comptroller in writing of the seller's
failure to remit the tax.  Sets forth information the notice must contain. 

SECTION 23.  Amends Sections 153.117(a), (b), (d), and (h), Tax Code, to
include the number of gallons of gasoline lost by theft among the records
which a distributor, a dealer, an aviation fuel dealer, and a gasoline
jobber are required to keep. 

SECTION 24.  Amends Sections 153.119(a) and (e), Tax Code, to include the
loss of gasoline by theft among the circumstances for which a tax refund
may be claimed. 

SECTION 25.  Amends Section 153.121(a), Tax Code, to make a conforming
change. 

SECTION 26.  Amends Section 153.206, Tax Code, by adding Subsection (j), as
follows: 

(j)  Requires that, in each subsequent sale of diesel fuel on which the tax
has been collected, the amount of the tax be added to the selling price so
that the tax is paid ultimately by the person using or consuming the diesel
fuel for the purpose of propelling a vehicle on the public highways of this
state. 

SECTION 27.  Amends Sections 153.219(a), (b), (c), (d), and (i), Tax Code,
to include the number of gallons of diesel fuel lost by theft among the
records which a supplier, a dealer,  a bonded user  or other user with
nonhighway equipment uses who files a claim for a refund, an aviation fuel
dealer, and a diesel fuel jobber are required to keep. 

SECTION 28.  Amends Section 153.222(e), Tax Code, to include the loss of
diesel by theft among the circumstance for which a tax refund may be
claimed. 

SECTION 29.  Amends Section 153.224(a), Tax Code, to make a conforming
change. 

SECTION 30.  Amends Sections154.114(c) and (g), Tax Code, as follows:

(c)  Requires the comptroller to deliver, rather than mail, the written
notice of intention to revoke or suspend a cigarette distributor's,
wholesaler's, bonded agent's, or retailer's  permit by personal service or
by mail, rather than certified mail, return receipt requested, to the
permit holder's mailing address as it appears in the comptroller's records.
Makes  a conforming change. 

(g)  Limits the notice requirements to distributor and wholesaler permit
holders. 

SECTION 31.  Amends Section 154.210(a), Tax Code, to require a distributor
to deliver a report for the preceding month to the comptroller by the last,
rather than 15th, day of each month. 

SECTION 32.  Amends Section 154.308(b), Tax Code, to require the
comptroller to notify a person of a deficiency determination by mail or
personal service, rather than certified mail, return receipt requested.
Makes a conforming change. 

SECTION 33.  Amends Sections 154.309(b) and (d), Tax Code, to provide that
a written request for redetermination must be filed with the comptroller by
the 30th, rather than the 15th working, day after the date notice of
deficiency is issued, rather than received.  Requires the comptroller to
give notice of a redetermination hearing by personal service or by mail,
rather than certified mail, return receipt requested. 

SECTION 34.  Amends Section 155.059(c), Tax Code, require the comptroller
to deliver written notice by personal service or by mail, rather than
certified mail, return receipt requested, to the permit holder's mailing
address as it appears in the comptroller's records.  Makes a conforming
change. 

SECTION 35.  Amends Section 155.103(b), Tax Code, to require a manufacturer
who sells tobacco products to a permit holder in this state to file the
required report for the previous month with the comptroller by the last,
rather than the 15th, day of each month. 

SECTION 36.  Amends Section 155.111(a), Tax Code, to require a distributor
to file a report for the preceding month with the comptroller by the last,
rather than 30th, day of each month. 

SECTION 37.  Amends Section 155.185(b), Tax Code, to require the
comptroller to notify a person of a deficiency determination by mail or
personal service, rather than certified mail, return receipt requested.
Makes a conforming change. 

SECTION 38.  Amends Sections 155.186(b) and (d), Tax Code, to provide that
a written request for redetermination must be filed with the comptroller by
the 30th, rather than the 15th working, day after the date notice of
deficiency is issued, rather than received.  Requires the comptroller to
give notice of a redetermination hearing by personal service or by mail,
rather than certified mail, return receipt requested. 

SECTION 39.  Amends Section 156.102, Tax Code, to provide that this chapter
(Hotel Occupancy Tax) does not impose a tax on a corporation or association
that qualifies for exemption from federal income taxes under Section
501(c)(3), Internal Revenue Code of 1986. 

SECTION 40.  Amends Sections 156.103(a), (b), (c), and (d), Tax Code, to
provide that this chapter does not impose a tax on a governmental entity of
the United States.  Deletes all exceptions to this  subsection.  Requires
this state, or an agency, institution, board, or commission of this state
other than an institution of higher education to pay the hotel occupancy
tax and entitles it to a refund of the amount of tax paid.  Makes
conforming changes. 

SECTION 41.  Amends Section 171.063, Tax Code, by amending Subsection (a)
and adding Subsection (h), as follows: 

(a)  Makes conforming changes.


(h)  Authorizes a requirement that a nonprofit hospital provide charity
care and community benefits to be satisfied by donation of money to the
Texas Healthy Kid Corporation established by Chapter 109, Health and Safety
Code if the money is donated to be used for health benefits for certain
children, as specified in Section 109.033(c), Health and Safety Code, and
prohibits more than 10 percent of the charity care required under any
provision of Section 311.045 (Community Benefits and Charity Care
Requirements), Health and Safety Code, from being satisfied by the
donation. 

SECTION 42.  Amends Sections 171.063(c) and (d), Tax Code, to provide that
evidence establishing the corporation's provisional exemption under this
section (Exemption-Nonprofit Corporation Exempt From Federal Income Tax)
must be filed by the 15th month after the day that is the last day of a
calendar month and this is nearest to the date of the corporation's charter
or certificate of authority.  Deletes the provision that a corporation must
file a copy of the Internal Revenue Service's exemption letter with the
comptroller by the 15th month after the day that is the last day of a
calendar month and that is nearest to the date of the corporation's charter
or certificate of authority.  Makes conforming changes. 

SECTION 43.  Amends the heading of Subchapter C, Chapter 171, Tax Code, to
read as follows: 

SUBCHAPTER C.  DETERMINATION OF TAXABLE CAPITAL AND TAXABLE EARNED SURPLUS;
ALLOCATION AND APPORTIONMENT 

SECTION 44.  Amends the heading of Section 171.1015, Tax Code, to read as
follows: 

Sec.  171.1015.  REDUCTION OF TAXABLE CAPITAL OR TAXABLE EARNED SURPLUS FOR
INVESTMENT IN AN ENTERPRISE ZONE. 

SECTION 45.  Amends Section 171.1015(f)(1), Tax Code, to change a reference
to the Texas Department of Commerce to the Texas Department of Economic
Development. 

SECTION 46.  Amends Section 171.1015(g), Tax Code, to change a reference to
the Texas Department of Commerce to the Texas Department of Economic
Development. 

SECTION 47.  Amends the heading of Section 171.1016, Tax Code, to read as
follows: 

Sec. 171.1016.  REDUCTION OF TAXABLE CAPITAL OR TAXABLE EARNED SURPLUS FOR
INVESTMENT IN A READJUSTMENT ZONE. 

SECTION 48.  Amends Section 171.1016(f)(1), Tax Code, to change a reference
to the Texas Department of Commerce to the Texas Department of Economic
Development. 

SECTION 49.  Amends Section 171.1016(g), Tax Code, to change a reference to
the Texas Department of Commerce to the Texas Department of Economic
Development. 

SECTION 50.  Amends the heading of Section 171.107, Tax Code, to read as
follow: 

Sec. 171.107.  DEDUCTION OF COST OF SOLAR ENERGY DEVICE FROM TAXABLE
CAPITAL OR TAXABLE EARNED SURPLUS APPORTIONED TO THIS STATE. 

SECTION 51.  Amends Section 171.110, Tax Code, by adding Subsections (i)
and (j), as follows: 
 
(i)  Provides that any person designated as an officer is presumed to be an
officer if that person holds an office created by the board of directors or
pursuant to the corporate charter or bylaws and has legal authority to bind
the corporation with third parties by executing contracts or other legal
documents. 

(j)  Authorizes a corporation to rebut the presumption described in
Subsection (i) that a person is an officer if it conclusively shows,
through the person's job description or other documentation, that the
person does not participate or have authority to participate in significant
policymaking aspects of the corporate operations. 

SECTION 52.  Amends Section 171.501(a), Tax Code, to change references to
the Texas Department of Commerce to the Texas Department of Economic
Development. 

SECTION 53.  Amends the heading of Subchapter C, Chapter 183, Tax Code, to
read as follows: 

SUBCHAPTER C.  MIXED BEVERAGE TAX CLEARANCE

SECTION 54.  Amends the heading of Section 183.051, Tax Code, as follows:

Sec. 183.501.  MIXED BEVERAGE TAX CLEARANCE

SECTION 55.  Amends Section 183.051(b), Tax Code, to require the
comptroller to issue to each county or incorporated municipality a warrant
drawn on the general revenue, rather than the mixed beverage tax clearance,
fund in the amount of 10.7143 percent of mixed beverage receipts from
permittees within the county or incorporated municipality during the
quarter .  Makes conforming changes. 

SECTION 56.  Amends Section 191.085(b), Tax Code, to require a person
subject to the tax to keep a complete record of business transacted and any
other information the comptroller requires open for four, rather than two,
years for inspection by the comptroller or the attorney general. 

SECTION 57.  Amends Section 203.051(a), Tax Code, to authorize a producer
to destroy the record of all sulphur the producer produces in this state
four, rather than three, years after the last entry in the record. 

SECTION 58.  Amends Section 321.103, Tax Code, by adding Subsections (e),
(f), and (g), as follows: 

(e)  Provides that a local government entity's sales and use tax that
exceeds two percent as a result of overlapping local sales and use taxes is
automatically reduced to a rate that when added to the combined rate of
local sales and use taxes equals two percent. 

(f)  Requires the comptroller to withhold from the municipality's monthly
sales and use tax allocation an amount equal to the amount that would have
been collected by the entity had overlapping local sales and use taxes not
exceeded two percent.  Requires the comptroller to withhold and pay the
amount withheld to the entity under policies or procedures that the
comptroller considers reasonable. 

(g)  Provides that a transit authority is not a local government entity for
the purposes of Subsections (e) and (f). 

SECTION 59.  Amends Section 323.102(c), Tax Code, to provide that a tax
imposed under Chapter 326 (Library Districts), Local Government Code, takes
effect on the first day of the first calendar quarter after the expiration
of the first complete calendar quarter occurring after the date on which
the comptroller receives a notice of the action as required by Section
323.405(b), which requires the county judge to notify the comptroller of
any resolution that changes the application of the taxes that may be
imposed in this chapter. 

SECTION 60.  Amends Section 323.105(e), Tax Code, to require the
comptroller to remit to the  county amounts collected at the rate imposed
under this section as part of the regular allocation of county tax revenue
collected by the comptroller if the district is composed of the entire
county. Requires the comptroller, rather than the county, to remit the
amount to the district if the district is composed of an area less than the
entire county. 

SECTION 61.  Amends Section 351.006, Tax Code, to exempt a United States
governmental entity described in Section 156.103(a) from the payment of the
municipal hotel occupancy tax, rather than requiring such an entity to pay
the refund and entitling it to a refund.  Requires a state governmental
entity described in Section 156.103(b) to pay the municipal hotel occupancy
tax and entitles it to a refund of the tax.  Redesignates existing
Subsections (b)-(e) to Subsection (c)-(f). 

SECTION 62.  Amends Section 352.007, Tax Code, to exempt a United States
governmental entity described in Section 156.103(a) from the payment of the
county hotel occupancy tax, rather than requiring such an entity to pay the
refund and entitling it to a refund.  Requires a state governmental entity
described in Section 156.103(b) to pay the county hotel occupancy tax and
entitles it to a refund of the tax.  Redesignates existing Subsections
(b)-(e) to Subsection (c)-(f). 

SECTION 63.  Reenacts Subsection 4B(e), Article 5190.6, V.T.C.S.
(Development Corporation Act of 1970), as amended by Section 3, Chapter
1022, and Section 12, Chapter 1031, Acts of the 73rd Legislature, Regular
Session, 1993. 

SECTION 64.  Repealer:  Section 152.062(d), Tax Code, which required the
comptroller to promulgate rules to govern the enforcement of this section
(Required Statements), including standard value guidelines to assist a tax
assessor-collector in determining the truth and accuracy of material facts
in a joint statement. 

SECTION 65.  Provides that the following provisions of this Act are
clarifications of existing law and do not imply that existing law may be
construed as inconsistent  with the law as amended by this Act: 
Section 102.075, Code of Criminal Procedure;
Section 9, Article 3.50-3, Insurance Code (Texas State College and
University Employees Uniform Insurance Benefits Act); 
Section 11, Article 3.50-4, Insurance Code (Texas Public School Employees
Group Insurance Act); 
Section 326.029, Local Government Code;
Section 326.092, Local Government Code;
Section 151.350(d), Tax Code;
Section 152.041, Tax Code;
Section 153.117, Tax Code;
Section 153.119, Tax Code;
Section 153.206, Tax Code;
Section 153.219, Tax Code;
Section 171.063, Tax Code;
The heading of Subchapter C, Chapter 171, Tax Code;
The headings of Sections 171.1015, 171.1016, and 171.107, Tax Code;
Section 171.110, Tax Code;
Section 191.085, Tax Code; and
Section 203.051, Tax Code.

SECTION 66.  Authorizes the comptroller to adopt rules and take other
actions before October 1, 1999, as the comptroller deems necessary or
advisable to prepare for the taking effect of this Act. 

SECTION 67.  Provides that this Act takes effect October 1, 1999, except as
provided by Subsections (b), (c), and (d). 

(b)  Provides that Section 3 of this Act takes effect January 1, 2000, and
applies to reporting periods beginning on or after than date. 

(c)  Provides that Sections 41 through 52 of this Act take effect January
1, 2000, and apply  to a report originally due on or after that date. 

(d)  Provides that Sections 59 and 66 of this Act take effect 90 days after
adjournment. 

SECTION 68.  Emergency clause.