We have combined the print editions of the September and October issues into one, super fall issue. Please don't forget, you can find electronic versions of Tax Policy News on our webpage <www.window.state.tx.us>. Enjoy. Our special toll-free number for tax practitioners is 1-800-248-4093. Our tax specialists are available from 7:30 in the morning until 5:30 in the evening. The call volume is lowest on Thursdays and Fridays, early in the mornings and late in the afternoons. Please call then and avoid the rush.
--Adina Harrell
In This Issue:
Public Information Reports*
The Purchaser Is Also Liable for Tax*
Tax is Due on Bags (Paper or Plastic)*
Installation Labor Included in Price of Carpet*
Notices: Recent Legislative Changes*
Telephone Prepaid Calling Cards*
Cigarette and Tobacco Products Tax*
Automotive Oil Fee Reduced*
Rule 3.294, tax on a lease termination charge--Fine Print
Rule 3.357, the extrication and disposal of asbestos--Asbestos Abatement
Rule 3.357, supplies used in asbestos abatement--Contaminated
Rule 3.355, attest services--I Attest*
Rule 3.355, forensic engineering services--Me Too*
Rule 3.300, equipment used by retail customers--Not the Same Old Grind*
Rule 3.293, bakery products sold in retail store in mall-- Cooookies*
Rule 3.304, tax on items sold with funeral services--No Escape*
Section 151.007, disposal fee added by retailers--Scrap Tires*
Rule 3.308, customized software--Electronic Answers
Rule 3.344, independent verification of customer's request-- Not a Slam
Rule 3.296, farm and ranch irrigation wells--Acid Wash
Rule 3.308, tax treatment of software and hardware related services-- Software Installation
Harris County-Houston Sports Authority
Administrative Rules*** These summaries were included in the Sept. 97 electronic version of Tax Policy News.
** All rules except Franchise Tax were included in the Sept. 97 electronic version of Tax Policy News.
USEFUL HINTS
Public Information Reports
The Secretary of State will not update a corporation's officers and directors unless the corporation's taxpayer number and charter number on the Public Information Report are complete. (A taxpayer number is 11 digits, and the charter number is 10 digits.) If you use blank franchise tax forms (not pre-printed by this office), don't forget to use complete taxpayer numbers and charter numbers. The Purchaser Is Also Liable for Tax
Retailers may not advertise that they will pay sales tax for their customers. A retailer may discount its prices to achieve the same effect, so long as it represents to the customer that tax is included in the purchase price. Tax is Due on Bags (Paper or Plastic)
A retailer must pay tax on wrapping and packaging supplies used to provide a taxable service, such as dry cleaning, or to wrap or package merchandise. A retailer owes tax on sacks, boxes, tissue, etc., it uses, even when the retailer charges its customers separately for those items. For more information, ask for Rule 3.314 on wrapping and packaging supplies. Installation Labor Included in Price of Carpet
No tax is due on the labor to install carpet in residential realty. If new carpeting is sold for one price, installation included, the carpet company should not collect tax. Instead, the carpet company owes tax on the amount it paid for the carpet. If the carpet company bills its customer for tax on the total price, it must either refund the tax to its customer or send the money to the state. In this situation, the carpet company is not entitled to keep any money it collects as tax. This tax was collected in error and may not be used to reduce the carpet company's sales tax liability on the wholesale price of the carpet. If, on the other hand, a carpet company bills separate amounts for the carpet and for installation in a residence, the carpet company must collect tax on the charge for the carpet, but not on the installation labor. Tax is due on the total charge to install carpet in an existing nonresidential building. This work is taxable nonresidential real property repair, remodeling, or restoration. For more information, ask for Rule 3.357 on real property repair and remodeling.
NOTICES: RECENT LEGISLATIVE CHANGES
We mailed to target groups of taxpayers the following notices, which explain changes in the tax law due to recent legislation. We have extra copies available. Just call the handy toll-free number, 1-800-252-5555, and order the notice of your choice by publication number. Crude Oil and Natural Gas Review (publication number 96-251)
This summary of legislative changes affecting producers and purchasers of crude oil and natural gas was mailed along with July and August returns. In late August, we sent the review to taxpayers who file natural gas returns yearly. Notice from the Comptroller (publication number 94-145)
This tax bulletin reminding taxpayers that interstate motor carrier sales and use tax was repealed effective September 1, 1997 was mailed along with the last interstate motor carrier sales and use tax returns. County Tax Assessor-Collector Motor Vehicle Sales Tax Boat/Boat Motor Sales Tax Legislative Changes (publication number 94-147)
We sent the county tax assessor-collectors this summary of legislative changes.Motor Vehicle Sales Tax Legislative Changes (publication number 94-146)
We mailed this bulletin to all motor vehicle dealers registered with the Texas Department of Transportation.Boat and Boat Motor Sales Tax Legislative Changes (publication number 94-144)
Yes, we mailed this one-page bulletin to all boat and boat motor dealers registered with the Texas Parks and Wildlife Department. Legislative Update (publication number 96-237LU)
The Legislative Update contains most of the summaries included in the July issue of Tax Policy News. We sent the Update to all sales tax permit holders and all companies that pay Texas franchise tax.
UPDATE ON LEGISLATION
Telephone Prepaid Calling Cards
In the July issue, I told you that effective October 1, 1997, the sale of most* telephone debit cards would be considered the sale of tangible personal property. In fact, the date was September 1, 1997. Through August 31, 1997, these cards were considered telecommunications services subject to sales tax. When a telephone debit card was sold as a service, a seller could either include the tax in the price of the card and remit the appropriate tax as the card was used, or collect and remit sales tax on the face value of the card when it was sold. If you followed our advice and continued to treat these cards as telecommunications services during the month of September, you will not be penalized. Go ahead and remit tax on cards sold during September. Don't wait until these cards are used to send us the sales tax. Don't pay the telecommunications infrastructure fee on cards sold after August 31, 1997. Telephone prepaid calling cards sold as telecommunications services before September 1, 1997 remain prepaid telecommunications services until the prepaid services have been consumed, and the receipts from those services are subject to the TIF assessment.
* Calling cards sold in vending machines for $1 or less are still considered telecommunications services.Cigarette and Tobacco Products Tax
Senate Bill 55 was effective September 1, 1997. However, many provisions of that bill take effect later. Here is updated information on this cigarette and tobacco products bill. Effective January 1, 1998, anyone under 27 must provide an ID--with a photograph, a physical description, and proof that the person is at least 18--to buy tobacco products. Also effective January 1, 1998, the bill prohibits the sale of cigarettes and tobacco products through vending machines in establishments other than adult-only facilities. Effective with the permit year beginning March 1, 1998, annual permit fees will increase to:
$300 for distributors,
$300 for bonded agents, and
$200 for wholesalers.
A new fee of $125 for retailer permits will be imposed for the permit year beginning June 1, 1998. The retailer permit fee will increase to $180 effective September 1, 1999.
Fee Reduced
Effective September 1, 1997, the automotive oil sales fee will be reduced to four cents per gallon or one cent per quart of automotive oil. Automotive oil is any lubricant oil that can be used in an internal combustion engine, crankcase, transmission, gear box, or differential of an automobile, bus, or truck. The fee on automotive oil is collected on the first sale. When oil is sold to a permitted oil distributor, a do-it-yourselfer collection center, or a used-oil collection center, the sale is not a "first sale" and is exempt from the oil fee. The fee may be separately identified to customers, but it must be labeled as a reimbursement. No fee is due on oil sold to the United States government or on oil that is exported from Texas.
HEARINGS: SALES TAX
Fine Print
Hearing No. 36,586
Issue: Tax on a Lease Termination Charge
A taxpayer (TP) was the assignee of a lease agreement between a lessee (B) and leasing company (C). When TP canceled the lease contract, C charged TP a termination fee and sales tax on the fee. TP did not agree with the assessment of sales tax. Because C paid the tax to the Comptroller, it assigned to its right to a refund of the tax to TP. Using the tax refund assignment, TP requested a refund hearing. During the hearing, the judge pointed out that Rule 3.294 on leases provides that a charge imposed for the early termination of a lease is part of the lease price and is taxable. But TP argued that there were two separate transactions, the lease agreement between B and C, and the termination agreement between TP and C. As a result, TP claimed, the lease termination clause in Rule 3.294 did not apply to the termination payment as the termination payment was not part of the lease agreement. The judge did not agree and explained that even though the termination agreement was separately negotiated, the termination payment was "consideration" under the lease and was taxable. (9705491H) Asbestos Abatement
Hearing No. 35,546
Issue: The Extrication and Disposal of Asbestos
A licensed asbestos abatement contractor was audited for sales and use tax, and the auditor assessed tax on the contractor's abatement services. The contractor did not agree with the assessment and argued that the service was the removal of hazardous waste and not taxable under the law. (Although waste removal is a taxable service, the removal of hazardous waste is not taxable.) In the resulting administrative hearing, the Tax Division explained that asbestos abatement involves two services: 1) the extraction of the asbestos, which is remodeling realty and taxable when the property is not residential real property, and 2) the disposal of the hazardous waste. The contractor explained that it did not remodel the building because it did not re-insulate the structure, and that when the abatement job was finished, the building did not comply with local fire codes. In other words, the building owner had to hire another contractor to do the work necessary to meet fire codes. The judge explained that Tax Code §151.0048(3) defines waste collection and removal as real property services and excludes from the definition of taxable real property services the removal of hazardous waste. That section refers to waste collection and disposition. The terms "waste collection" and "disposition" do not describe the act of severing or extricating materials that are part of a structure. However, those terms describe the activity of hauling away or removing the severed debris or waste from a location. The judge then examined the circumstances under which the 1991 "hazardous waste" exclusion was added to §151.0048. Even before the 1991 change to §151.0048, the Comptroller's policy was to treat extricating or severing asbestos from realty as the remodeling of realty. During that same period, the Comptroller treated the disposal of the resulting waste as a service that was excluded from taxation. This policy of not taxing the disposal of hazardous waste was not in the tax law; it could only be found in Rule 3.356. The Legislature adopted this policy by changing the tax statute effective September 1, 1991. However, in doing so, the Legislature discussed the disposal of hazardous waste, not the extraction of asbestos from commercial buildings. As proof of legislative intent, the judge quoted the House Research Organization's Bill Digest regarding House Bill 1814, which codified the "hazardous waste" exclusion: Taxable garbage or solid-waste collection or removal would not include the collection or removal of hazardous waste, industrial solid waste, domestic sewage and certain other wastes. Based on the legislative history, the judge stated that the exclusion in §151.0048 did not apply to asbestos abatement. (9703146H)
LETTERS: SALES TAX
Contaminated
Issue: Supplies used in asbestos abatement
The sales tax law exempts consumable supplies purchased by a contractor improving real property for an exempt organization (such as a governmental, religious, educational, or charitable entity) if the supplies are used at the job site and are used up or destroyed after being used once. As discussed previously, asbestos abatement consists of two services: 1) remodeling real property and 2) hazardous waste removal. An asbestos abatement contractor may purchase tax free the consumable supplies, such as uniforms, masks, and filters, that it uses to extract the asbestos from an exempt organization's building. (The uniforms, masks, and filters are contaminated during the abatement process and must be destroyed after one use.) On the other hand, there is no exemption for consumable supplies used to perform other services (including those services that are taxable). For example, tax is due on tape, bags, and other containers used to dispose of asbestos once the material has been extricated from the walls, ceilings, etc., even when the customer is an exempt organization. I Attest
Issue: Attest services may be insurance services.
A public accounting firm provides attest services to law firms, insurance companies, and other corporations. The accounting firm performed an independent claim analysis of the business-interruption loss claimed by an insured person. Rule 3.355 on insurance services lists services that are taxable when provided pursuant to a policy of insurance. That list includes:
- insurance damage appraisal services,
- insurance investigations, and
- claims adjustments or processing.
The rule defines insurance damage appraisal as any activity performed to value damages or to estimate the quantity, value, or extent of loss of property. Under the rule, an insurance investigation is any activity performed to evaluate an individual's eligibility or qualifications for insurance coverage for the payment of benefits. And that rule describes insurance claims adjustment or claims processing as any activity to supervise, handle, investigate, pay, settle, or adjust claims or losses. Determining the amount of business-interruption loss pursuant to a policy of insurance is a taxable insurance service. (9708657L) Me Too
Issue: Forensic engineering services
Forensic engineering services may be taxable when an insurance policy is involved. Here are some examples of taxable engineering services:
- studies preliminary to the issuance of an insurance policy,
- studies to determine the cause of damage prior to or after the insurance payment, including studies to determine whether a company has a subrogation right to obtain from a third party reimbursement of payments made to an insured person.
For example, a law firm sues an insurance company and hires an engineering firm to determine whether a piece of equipment caused the loss. The engineering company's service is an insurance service, and the charge is subject to sales tax. On the other hand, no tax is due on the charge for an engineering study to determine the cause of damage where no insurance claim has been made or is anticipated to be made. Anything a forensic engineering firm does for an insurance company in connection with a policy of insurance is taxable. However, when the client is not an insurance company, the service may not be an insurance service. (9708656L) For more information on insurance services, ask for Rule 3.355. Not the Same Old Grind
Issue: Is a coffee grinder exempt as manufacturing equipment?
A coffee bean company buys coffee grinders to be placed in grocery stores for retail customers to use and would like to claim a manufacturer's exemption from sales and use tax on the grinders. A coffee grinder turns coffee beans into coffee grounds, changing the physical properties of the coffee beans, which is manufacturing. But the sales tax exemption for manufacturers only comes into play when the equipment is used to manufacture products for sale. In this situation, the coffee bean company doesn't own the coffee beans when the beans are ground. Because the coffee company sells whole coffee beans to grocery stores and does not use the grinding machines to prepare the beans for sale to the grocery stores, it and may not claim a sales tax exemption on the purchase of the machines. (9705384L) Cooookies
Issue: Bakery products
A bakery sells cookies and other bakery products through stores in shopping malls. The stores are neither part of, nor located in, shopping mall food courts, and the bakery is not charged a maintenance fee by the landlord for the use of the food court. The bakery does not provide eating facilities, like tables, trays, chairs, benches, or booths, or eating utensils to customers. The baked items are not sold hot, but may be sold in quantities of five or less. Meals, snacks, and other food sold ready to eat are taxable. Bakery products are sold "ready to eat" and are taxable when they are sold:
- in quantities five or fewer from a place of business that provides eating facilities,
- hot (but not just "hot from the oven"), or
- with utensils.
In this situation, sales tax is not due on the bakery's sales of bakery products. (9703120L) No Escape
Issue: Tax on items sold with funeral services.
The Texas Funeral Service Commission and the Federal Trade Commission require that mortuaries give families itemized contracts detailing the services to be performed and the cost of items provided along with the service including the casket, prayer cards, crucifixes, flowers, and motor escorts. The family may also buy additional cards, etc., as needed, at the contract price. Under sales tax Rule 3.304 on morticians, a mortician is the consumer of all tangible personal property used or furnished to the customer in providing a funeral service, even if the price of the item is listed separately in the contract for the funeral service. That means that the mortuary must pay tax on all taxable items it purchases to provide its services, and it should not collect tax from the family. In addition, when a family buys more prayers cards or crucifixes, the mortician should not collect tax from the family. The additional items have been used in providing the funeral services. The fact that a separate invoice is issued or that exact quantities of items are not known until after the service is performed does not change the mortuary's tax responsibilities. On the other hand, if a mortuary sells caskets, boxes, vaults, or other individual items of tangible personal property and does not provide the funeral services, the mortuary must collect tax on those items. (9708666L) Scrap Tires?
Issue: Disposal fee added by retailers
The waste tire recycling program will end December 31, 1997. Beginning January 1, 1998, tire retailers will no longer be required to collect waste-tire recycling fees on tires sold on or after that date. However, in a effort to keep this program alive, some tire dealers will charge a disposal fee equal to the waste-tire recycling fee. A disposal fee collected on tires sold after December 31, 1997 should be added to the sales price of a tire prior to computing sales or use tax, and tax should be collected on the price of the tire including the disposal fee. (9707572L) Electronic Answers
Issue: Customized software
A consulting company was hired to research the application of state-and-local transaction taxes to a client's products. The results of the research (including cites to laws, regulations, and court decisions) were provided to the client in the form of an interactive software program. The consulting company hired an independent contractor to develop a stand-alone computer database. The consulting company then plugged in the results of its research and installed the stand-alone program on the customer's computer system and provided formal training sessions on the use of the database. The charge for the interactive program is taxable. While consulting services are not usually taxable, this contract provides that the consulting company will do more than gather taxability information on its client's products. Under the terms of the contract, the consulting company was hired to provide a computer program that would allow the client to access specialized taxability information. Because the consulting company sold the software it created, it may claim a resale exemption in lieu of tax on the stand-alone database, which became a part of the software. (9707626L) Not a Slam
Issue: Independent verification of customer's request
A taxpayer provides independent verification that a consumer has agreed to switch to another long-distance telephone service. The long-distance phone company pays for this verification. When a telemarketer receives a favorable response from a consumer, the telemarketer obtains the necessary information and enters it into the telemarketer's system. Then the telemarketer connects the consumer to the taxpayer and electrically sends the taxpayer the consumer's information. The taxpayer's computer system extracts and assimilates certain information that must be confirmed by the consumer. When the taxpayer's system confirms that the consumer's telephone number matches the telephone number sent by the telemarketer, the taxpayer's system begins the verification process using interactive voice-recognition technology. The consumer's answers, which are recorded and kept for a year, must match the information on the computer screen. When a consumer's answer does not match the information provided or when the answer is unclear, the system sends the call to an operator. This verification service is taxable as a data-processing service. A long-distance phone service with customers outside of Texas may claim an exemption from tax when all or some of the benefit derived from the service can be allocated to its operations outside of Texas. When a long-distance company claims such an exemption, it should pay use tax directly to the Comptroller's office based on the benefit of the taxable service that the company derives in Texas. (9703404L) Acid Wash
Issue: Farm and ranch irrigation wells
When sand gets in an irrigation well, it clogs the pump. The pump is agricultural machinery or equipment when it is used exclusively to irrigate farm or ranch land. Under Rule 3.296, a farmer or rancher may claim a sales tax exemption on the repair of equipment used exclusively on a farm or a ranch in the production of agricultural products. A farmer or rancher may claim an exemption from tax on charges for bailing sand from farm or ranch irrigation wells. Furthermore, a contractor or a farmer or rancher may claim a tax exemption when purchasing acid that will be used to repair farm or ranch irrigation wells. (9708667L)
Editor's note--Also see 9708712L.
September 22, 1997Software Installation
Issue: Tax treatment of software and hardware related services
Setting up a computer for the first time (connecting the monitor, mouse, keyboard, and printer to the CPU) is taxable assembly of the computer and is subject to sales tax. However, no tax is due on a charge for installing or configuring software not sold by the person performing the service, and no tax is due on charges for installing peripheral hardware items on an existing system, provided the service provider did not sell the hardware. On the other hand, a new video card is an upgrade or repair of the computer and its installation is a taxable service (even if the service provider did not sell the video card). Additionally, installing and configuring software drivers (including the selection of drivers already on the machine but not selected) in connection with installation of a new video card are services performed in connection with a taxable service and are taxable.
Harris County-Houston Sports Authority
The City of Houston and Harris County created the Harris County-Houston Sports Authority, and the Authority imposed a 5 percent local tax on motor vehicle rentals effective October 1, 1997.* The Authority signed a contract with the Comptroller, and under the contract, we will collect this local rental tax. Only motor vehicle rental companies in Harris County and/or in the City of Houston will be required to collect this local motor vehicle rental tax. For example, a motor vehicle rental company in Pasadena (an incorporated city in Harris County) must collect the state motor vehicle rental tax and this local rental tax. Not all vehicles subject to the state motor vehicle rental tax will be subject to the Harris County-Houston Sports Authority motor vehicle rental tax. This local tax is not due on trailer rentals, and it is not due on rentals of trucks that have a manufacturer's rating of more than one-half ton. Only rental contracts of 30 days or less are subject to the new local tax. (Please continue to collect the state motor vehicle rental tax in the same manner as before.) Motor vehicle rental companies collecting this tax must include the following statement on each bill or other receipt: "Harris County-Houston Sports Authority requires that an additional tax of 5 percent be imposed on each motor vehicle rental for the purpose of financing one or more approved venue projects." The monthly returns are due the last day of the month following the report month. If you have any questions about the report form or the amount of tax due, call 1-800-252-1382. The Harris County-Houston Sports Authority will answer your other questions. That number is 713-355-2164.
*The Authority also imposed a 2 percent local hotel tax which will be collected by the local taxing authorities.
Advertising Fee
Proposed Rule 3.1201--Fee for Outdoor Advertising of Cigarettes or Tobacco Products
The last session of the Legislature imposed a tax on the gross sales price of outdoor advertising of cigarettes or tobacco products in Texas. This proposed rule sets out the guidelines for the payment of those fees.
The rule defines gross sales price as the sum of
- production costs, including design, artwork, paper, and materials;
- media costs, including the cost for leasing billboards or any other outdoor space where a message or sign is displayed; and
- sales or commissions paid to an agency or a broker.
Under the proposed rule, outdoor advertising includes a structure, display, light device, figure, painting, drawing, message, plaque, poster, sign, or billboard that is used to advertise and is visible from a street or highway. Outdoor advertising does not include a display inside of a building (even if the sign is visible from outside the building). The due date for this tax, which is paid by the purchaser, is the 20th day of the month following the end of the calendar quarter. The tax for September 1997 should be included in the last quarter report (October, November, and December) due January 20 1998. The purchaser of outdoor advertising of cigarette or tobacco products must keep invoices, purchase contracts, installment or credit agreements, and any other records relating to outdoor advertising for at least four years. The rule also sets out administrative penalties for violations of Health and Safety Code §161.123. Interstate Motor Carrier Sales and Use Tax
Proposed Repeal of:
Rule 3.441--Records Required
Rule 3.442--Doing Business
Rule 3.443--Computation of Interstate Motor Vehicle Sales and Use Tax
Rule 3.449--Yearly Filing
Chapter 157 of the Tax Code was repealed effective September 1, 1997, and these interstate motor carrier sales and use tax rules are no longer necessary. Franchise Tax
Proposed amendment Rule 3.545--Extensions
Beginning with an annual report due on or after January 1, 1998, the option to make an extension payment that is equal to 100 percent of the tax reported as due for the previous calendar year is not available to a taxpayer who has failed to file the franchise tax report due for the previous calendar year. This proposed amendment reflects this change. Proposed amendment to Rule 3.555--Earned Surplus: Computation
The proposed amendment reflects changes in the franchise tax enacted by Senate Bill 861, 75th Legislature, 1997. Proposed amendment to Rule 3.575--Annual Extensions/Electronic Funds Transfer
Corporations required to pay the tax via electronic fund transfer (EFT) may request an extension until August 15 to file the report. The request for extension must be postmarked on or before May 15. Payment must be 90 percent or more of the tax that will be due with the current year's report or 100 percent of the tax reported as due for the previous calendar year, and must be sent by electronic fund transfer on or before May 15. Beginning with an annual report due on or after January 1, 1998, the option to make an extension payment that is equal to "100 percent of the tax reported as due for the previous calendar year" is not available to a taxpayer who has failed to file the franchise tax report due for the previous calendar year. This proposed amendment reflects this change.
ABOUT THE NEWSLETTER:
This newsletter is designed to keep you informed. Tax questions can be complicated, so use these summaries as guidelines only. If you have a specific tax question, you may call or write us. The toll-free number for tax practitioners is 1-800-248-4093. The Austin number is 512-463-4600. Visit our website
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Carole Keeton Strayhorn
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