| (iii) Total Texas revenue includes taxable, nontaxable,
and tax-exempt sales. A sale of an item for delivery in this state
is presumed to be a sale for storage, use, or other consumption in
this state. With respect to a service, "use" means the derivation
in this state of direct or indirect benefit from the service.
(D) Consolidation of total Texas revenue. The comptroller
may consolidate the total Texas revenue of sellers engaged in conduct
that circumvents the safe harbor amount in subparagraph (B) of this
paragraph.
(E) When to obtain a permit and begin collecting. No
later than the first day of the fourth month after the month in which
a remote seller exceeds the safe harbor amount in subparagraph (B)
of this paragraph, the remote seller shall obtain a permit and begin
collecting use tax. For example, if during the period of July 1, 2018,
through June 30, 2019, a remote seller's total Texas revenue exceeds
the safe harbor amount in subparagraph (B) of this paragraph, the
remote seller shall obtain a permit by October 1, 2019, and begin
collecting use tax no later than October 1, 2019.
(F) Terminating collection obligation. A remote seller
that is required to be permitted may terminate its collection obligation
under this paragraph after twelve consecutive months in which the
remote seller's total Texas revenue for the preceding twelve calendar
months is below the safe harbor amount in subparagraph (B) of this
paragraph. In order to terminate its collection obligation, a remote
seller must submit a form prescribed by the comptroller. Thereafter,
the remote seller shall resume collection on the first day of the
second month following any twelve calendar months in which the remote
seller's total Texas revenue exceeds the safe harbor amount in subparagraph
(B) of this paragraph. For example, if the total Texas revenue of
a remote seller that previously terminated its collection obligation
exceeds the safe harbor amount in subparagraph (B) of this paragraph
during the period of January 1, 2020, through December 31, 2020, the
remote seller shall resume collection on February 1, 2021.
(G) Records retention required. For purposes of this
paragraph, a remote seller that terminates its collection obligation
shall comply with the record retention requirement of §3.281
of this title (relating to Records Required; Information Required)
and §3.282 of this title (relating to Auditing Taxpayer Records).
The remote seller must maintain sufficient documentation to verify
the date on which the remote seller terminated its collection obligation
under subparagraph (F) of this paragraph or ceases to engage in business
in this state.
(H) Transition rule. Remote sellers will be subject
to the permit requirement of this subsection and the collection obligation
of subsection (d) of this section beginning on October 1, 2019. The
initial twelve calendar months for determining a remote seller's total
Texas revenue will be July 1, 2018, through June 30, 2019. If a remote
seller's total Texas revenue during that period exceeds the safe harbor
amount in subparagraph (B) of this paragraph, the seller shall obtain
a permit by October 1, 2019, and begin collecting use tax no later
than October 1, 2019.
(3) Marketplace providers and marketplace sellers.
(A) Duties of marketplace providers. A marketplace
provider shall:
(i) certify in writing to each marketplace seller that
the marketplace provider assumes the rights and duties of a seller
with respect to sales made by the marketplace seller through the marketplace
(no specific language or format is required for the certification);
(ii) collect sales and use tax on Texas sales of taxable
items made through the marketplace;
(iii) report and remit the sales and use taxes on all
Texas sales made through a marketplace;
(iv) provide to each marketplace seller records of
the marketplace sales made on behalf of the marketplace seller; and
(v) comply with the record retention requirement of §3.281
of this title and §3.282 of this title.
(B) Duties of marketplace sellers. A marketplace seller
shall:
(i) retain records for all marketplace sales made on
a marketplace as required in §3.281 of this title and §3.282
of this title;
(ii) furnish to the marketplace provider information
that is required to correctly collect and remit sales and use tax
(the information may include a certification of taxability that an
item being sold is a taxable item, is not a taxable item, or is exempt
from taxation); and
(iii) not be required to obtain a permit if only selling
through a marketplace provider that has certified that it will assume
the rights and duties of a seller, as provided in this subsection.
(C) Good faith requirements for marketplace sellers
and marketplace providers.
(i) A marketplace seller who in good faith accepts
a marketplace provider's certification under subparagraph (A)(i) of
this paragraph shall exclude sales made through the marketplace from
the marketplace seller's sales tax report if the marketplace seller
is otherwise required to collect and remit tax.
(ii) Except as provided by subparagraph (E) of this
paragraph, a marketplace provider is not liable for failure to collect
and remit the correct amount of sales and use taxes if the marketplace
provider shows the failure resulted from the marketplace provider's
good faith reliance on incorrect or insufficient information provided
by the marketplace seller.
(D) A marketplace seller is liable for any deficiency
resulting from incorrect or incomplete information provided by the
marketplace seller to the marketplace provider.
(E) Joint and several liability. A marketplace provider
and marketplace seller that are affiliates or associates, as defined
by Business Organizations Code, §1.002, are jointly and severally
liable for a deficiency resulting from a sale made by the marketplace
seller through the marketplace.
(F) Marketplace provider waiver requests. A marketplace
provider may request a waiver of the requirements of subparagraph
(A) of this paragraph by sending a written request to the Texas Comptroller
of Public Accounts, Tax Policy Division that explains the basis for
the waiver. The comptroller will review the waiver request and issue
a letter granting, conditionally granting, or denying the waiver request.
If the information below, or any additional information requested
by the comptroller, is not provided, the comptroller will not issue
a waiver. The requestor does not have the right to a hearing. The
request for the waiver must include:
(i) the name of the marketplace provider;
(ii) an explanation of the marketplace provider's business
model, including information on the services offered by the marketplace
provider and the charges for those services;
(iii) the basis for the waiver request;
(iv) a statement providing whether the waiver is permanent
or temporary; and
(v) if temporary, the date the marketplace provider
expects the waiver to expire.
(G) Exceptions. The comptroller may except marketplace
providers in certain industries from some or all of the statutory
and regulatory requirements for marketplace providers based on the
industries' business models and practices. The comptroller will provide
written notification to the excepted marketplace providers.
(4) A seller that no longer intends to engage in business
and make sales of taxable items in the state shall submit a form prescribed
by the comptroller to terminate its permit and must obtain a new permit
before it commences sales of taxable items in the state thereafter.
The seller must maintain sufficient documentation to verify the date
on which the seller ceases to engage in business in this state.
(5) Direct sales organizations. Independent salespersons
of direct sales organizations are not required to hold sales and use
tax permits to sell taxable items for direct sales organizations.
Direct sales organizations engaged in business in this state are sellers
responsible for holding sales and use tax permits and for the collection
and remittance of sales and use tax on all sales of taxable items
by their independent salespersons. See subsection (d)(3) of this section
for more information about the collection and remittance of sales
and use tax by direct sales organizations.
(6) Non-permitted purchasers. Persons who are not required
to have a sales and use tax permit or who do not have a direct payment
permit are still responsible for paying to the comptroller sales or
use tax due on purchases of taxable items from sellers who do not
collect and remit tax. See subsection (g)(9) of this section for return
and payment information and §3.346 of this title (relating to
Use Tax).
Cont'd... |
