| (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).
(7) Non-permitted sellers. Failure to obtain a sales
and use tax permit does not relieve a seller required by this section
or other applicable law to have a sales and use tax permit from the
obligation to properly collect and remit sales and use taxes. Sellers
whose sales and use tax permits are suspended, pursuant to subsection
(l) of this section, or cancelled, pursuant to subsection (n) of this
section, and sellers who have not received sales and use tax permits
due to unsigned or incomplete applications, are still responsible
for properly collecting and remitting sales and use taxes. See subsection
(g) of this section for return and payment information.
(c) Obtaining a sales and use tax permit.
(1) A seller must complete an application that the
comptroller furnishes and must return that application to the comptroller,
together with bond or other security that may be required by §3.327
of this title (relating to Taxpayer's Bond or Other Security). A seller
who files an electronic application furnished by the comptroller is
deemed to have signed the application and is not required to print
and mail a signed application to the comptroller. A separate sales
and use tax permit under the same taxpayer account number is issued
to the applicant for each place of business of the seller. Sales and
use tax permits are issued without charge.
(2) Each seller must apply for a sales and use tax
permit. An individual or sole proprietor must be at least 18 years
of age unless the comptroller allows an exception from the age requirement.
The sales and use tax permit cannot be transferred from one seller
to another. The sales and use tax permit is valid only for the seller
to whom it was issued and for the transaction of business only at
the address that is shown on the sales and use tax permit. If a seller
operates two or more types of business at the same location, then
only one sales and use tax permit is required.
(3) The sales and use tax permit must be conspicuously
displayed at the place of business of the seller for which it is issued.
A permit holder that has traveling sales persons who operate from
a central office needs only one sales and use tax permit, which must
be displayed at that office.
(4) All sales and use tax permits of the seller will
have the same taxpayer account number; however, each place of business
of the seller will have a different outlet number. The outlet numbers
assigned may not necessarily correspond to the number of business
locations operated by the seller.
(d) Collecting sales and use tax due.
(1) Bracket system.
(A) Each seller must collect sales or use tax on each
separate retail sale in accordance with the statutory bracket system
in Tax Code, §151.053 (Sales Tax Brackets). The practice of rounding
off the amount of sales or use tax that is due on the sale of a taxable
item is prohibited. Copies of the bracket system should be displayed
in each place of business of the seller so both the seller and the
purchaser may easily use them.
(B) The sales and use tax applies to each total sale,
not to each item of each sale. For example, if two items are purchased
at the same time and each item is sold for $.07, then the seller must
collect the tax on the total sum of $.14. Sales and use tax must be
reported and remitted to the comptroller as provided by Tax Code, §151.410
(Method of Reporting Sales Tax; General Rule). When sales and use
tax is collected properly under the bracket system, the seller is
not required to remit any amount that is collected in excess of the
sales and use tax due. Conversely, when the sales and use tax collected
under the bracket system is less than the sales and use tax due on
the seller's total receipts, the seller is required to remit sales
and use tax on the total receipts even though the seller did not collect
sales and use tax from the purchasers.
(2) Sales and use tax due is debt of the purchaser;
document requirements.
(A) The sales and use tax due is a debt of the purchaser
to the seller until collected. Unpaid sales or use tax is recoverable
by the seller in the same manner as the original sales price of the
taxable item itself, if unpaid, would be recoverable. The comptroller
may proceed against either the seller or purchaser, or against both,
until all applicable tax, penalty, and interest due has been paid.
Cont'd... |
