| (ii) floor planning (i.e., the seller's credit arrangements
for the purchase of its inventory);
(iii) manufacturer or distributor's rebates;
(iv) the price of any report on the condition or history
of the motor vehicle to be purchased or traded in;
(v) the disbursement of money to a financial institution
(e.g., the cost of issuing a certified check);
(vi) a salesperson's commission for the sale of the
motor vehicle (but commissions for an employee other than a salesperson
may be included if they comply with subsection (d)(3)(B)(i)).
(3) Form of cost analysis. The cost analysis must include
a summary of documentary fee costs and supporting exhibits.
(A) Summary of documentary fee costs. The summary of
documentary fee costs must be provided on a form prescribed by the
OCCC.
(i) The summary must include an itemization of the
amount of costs for each of the following categories:
(I) personnel;
(II) forms and printing;
(III) postage;
(IV) software;
(V) facilities costs;
(VI) other costs.
(ii) The summary must include the number of sales completed
during the period used to determine the costs described in clause
(i).
(B) Supporting exhibits. A seller must provide a supporting
exhibit for each category of costs included in the documentary fee.
A seller must prorate costs to ensure that costs that are impermissible
under this subsection are excluded. If a category is associated with
both permissible and impermissible costs, then a seller must include
only the permissible portion and explain the percentage of the category
that is being included. The OCCC may prescribe a form for the supporting
exhibits. A seller is not required to provide an exhibit for any category
that does not include any costs.
(i) Personnel. The supporting exhibit for personnel
must describe how all employee salaries included in the documentary
fee comply with the reasonableness requirements described in this
subsection.
(I) The supporting exhibit for personnel must include
a job description for each position. Job descriptions must be specific
enough to illustrate which functions are unique to each listed position,
on a task level. The job description must identify which specific
tasks are included as a cost component of the documentary fee, and
which are excluded.
(II) The supporting exhibit for personnel must include
each salary and a complete description of how compensation is calculated
for each position (e.g., a pay plan).
(-a-) Commission paid to a salesperson for the sale
of a motor vehicle must be excluded. If the seller includes a portion
of the base salary paid to a salesperson, then the seller must explain
how the salary has been prorated to exclude impermissible costs. If
the seller offers a guaranteed minimum draw against future commission,
then the draw may be included in the base salary rather than the commission.
(-b-) If the seller includes any commission paid to
a person other than a salesperson, then the seller must explain how
the commission has been prorated to exclude any impermissible costs
(e.g., commission for ancillary products, or commission that arises
only in credit transactions). If the seller offers a guaranteed minimum
draw against future commission, then the draw may be included in the
base salary rather than the commission.
(III) If costs of training employees are included,
then the supporting exhibit must include an agenda for the training
and an explanation of the subject matter of the training. The seller
must explain how training costs have been prorated to exclude impermissible
costs (e.g., costs of training employees on responsibilities that
arise only in credit transactions, or that arise before preparation
of a purchase agreement).
(ii) Forms and printing. The supporting exhibit for
forms and printing must describe all included costs and explain which
forms are purchased or printed. All included forms must be used uniformly
in cash and credit motor vehicle sales. If a seller uses a form only
in certain transactions, then the seller must prorate costs by the
fraction of the seller's sales in which the form is used. For example,
if a form is used only for used motor vehicle sales, then a seller
must prorate the cost of the form by the fraction of the seller's
sales that are used motor vehicles. If a seller includes forms not
listed in this clause, then the supporting exhibit must include an
explanation of how the forms comply with the reasonableness requirements
described in this subsection, with a citation to the law that requires
the form. A seller may include the costs of the following forms:
(I) a written contract for the sale of the motor vehicle,
as required by Texas Business and Commerce Code §2.201, which
may be in the form of a purchase agreement, buyer's order, bill of
sale, or retail installment sales contract (if a seller includes the
cost of a retail installment sales contract, then the cost must be
prorated to exclude the Truth in Lending disclosure statement and
any provisions that are used only in credit transactions);
(II) an application for certificate of title, form
130-U, as required by Texas Transportation Code, §501.023;
(III) a statement of the county of title issuance,
form VTR-136, as required by Texas Transportation Code, §501.023;
(IV) a privacy notice, as required by the Gramm-Leach-Bliley
Act, 15 U.S.C. §6803;
(V) a copy of the buyer's driver's license, in order
to verify the buyer's identity and ensure compliance with the USA
PATRIOT Act, 31 U.S.C. §5318(l)(2)(C);
(VI) a report of a cash payment over $10,000, form
8300, as required by the USA PATRIOT Act, 31 U.S.C. §5331;
(VII) a Texas Lemon Law disclosure, as required by
Texas Occupations Code, §2301.610;
(VIII) the buyer's temporary tag, as required by Texas
Transportation Code, §503.063, and 43 Texas Administrative Code
§245.155;
(IX) the buyer's temporary tag receipt, as required
by 43 Texas Administrative Code §245.156;
(X) a window sticker for new vehicles, as required
by 15 U.S.C. §1232; and
(XI) a used car buyers guide, as required by the Federal
Trade Commission's Used Motor Vehicle Rule, 16 C.F.R. §455.2.
(iii) Postage. The supporting exhibit for postage must
identify the postage carrier, the types of documents that are sent
by postage, and each specific postage cost. All postage costs must
comply with the reasonableness requirements described in this subsection,
including the prudent-business-person standard. The OCCC will presume
that a prudent business person would use certified mail from the United
States Postal Service or a similarly priced service. The exhibit must
explain how costs that do not comply with this subsection (e.g., costs
of sending documents to other financial institutions) have been excluded.
(iv) Software. The supporting exhibit for software
must identify the cost of each included piece of software. The exhibit
must state the type of software used and the specific functions of
the software. The exhibit must identify which specific software functions
are included as a cost component of the documentary fee, and which
are excluded. If the software is associated with both permissible
and impermissible costs, then a seller must include only the permissible
portion and explain the percentage of the category that is being included.
(v) Facilities costs. The supporting exhibit for facilities
must identify all included facilities costs (e.g., rent, property
taxes, insurance). Any facilities costs must be adjusted to include
only direct fixed costs that comply with the reasonableness requirements
described in this subsection. The documentary fee may not include
any depreciation of facilities costs. The exhibit must describe an
appropriate methodology ensuring that the documentary fee includes
only the portion of the facilities costs that corresponds to the percentage
of time and space used for activities that may be included in the
documentary fee.
(vi) Other costs. The supporting exhibit for other
costs must identify all other costs included in the documentary fee.
The exhibit must state the amount of each cost and the nature of the
associated activities. If the activities are associated with both
permissible and impermissible costs, then a seller must include only
the permissible portion and explain the percentage of the category
that is being included.
(4) Cost analysis covering multiple locations. A seller
may submit a cost analysis that covers more than one licensed location
or registered office if:
(A) the cost structures of all covered locations are
substantially similar (e.g., due to centralized processing among a
group of locations); and
Cont'd... |
