By: West, Davis	S.B. No. 1798

	A BILL TO BE ENTITLED
	AN ACT
	relating to retailers engaged in business in this state for
	purposes of sales and use taxes.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Subsection (b), Section 151.008, 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; [and]
	(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)  a person who, under an agreement with another
	person, is:
	(A)  entrusted with possession of tangible
	personal property with respect to which the other person has title
	or another ownership interest; and
	(B)  authorized to sell, lease, or rent the
	property, or otherwise permit access to or use of the property,
	without additional action by the person having title to or another
	ownership interest in the property.
	SECTION 2.  Section 151.107, Tax Code, is amended by
	amending Subsection (a) and adding Subsections (a-1) and (d) 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, place of
	distribution, sales or sample room or place, warehouse, storage
	place, or any other location where [place of] 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, fulfilling,
	or delivering or the taking of orders for a taxable item;
	(3)  derives receipts [rentals] from the sale, use, [a]
	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; [or]
	(7)  holds a substantial ownership interest in, or is
	owned in whole or substantial part by, a business entity that
	maintains a location in this state at which business is conducted
	and if:
	(A)  the retailer sells the same or a
	substantially similar line of products as the business entity with
	the location in this state and sells those products under a business
	name that is the same or substantially similar to the business name
	of the business entity with the location in this state; or
	(B)  the Texas facilities, Texas employees, or
	other representatives of the business entity 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 business entity that:
	(A)  maintains in this state a distribution house,
	sales house, warehouse, or similar location at which business is
	conducted; and
	(B)  delivers property sold by the retailer or an
	affiliate of the retailer to consumers; or
	(9)  otherwise does business in this state.
	(a-1)  For the purpose of this subchapter and in relation to
	the use tax, there is a rebuttable presumption that a retailer that
	is part of an affiliated group is engaged in business in this state
	if another member entity of the affiliated group is a retailer
	engaged in business in this state. The presumption may be rebutted
	by evidence that, during the preceding 12-month period, the other
	member entity that is a retailer engaged in business in this state
	did not engage in any activity described by this section on behalf
	of the retailer to which the presumption applies.
	(d)  In this section:
	(1)  "Affiliated group" has the meaning assigned by
	Section 171.0001.
	(2)  "Ownership" includes:
	(A)  direct ownership; and
	(B)  indirect ownership through a parent entity,
	subsidiary, or affiliate.
	(3)  "Substantial" means, with respect to an ownership
	interest, an interest in an entity that is at least equal to the
	degree of ownership or equity interest that would require a
	beneficial owner to file a disclosure statement under 15 U.S.C.
	Section 78p or a successor to that statute.
	SECTION 3.  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 4.  This Act takes effect January 1, 2012.