| (1) a contractor purchases the surveying service as
part of the construction of a new improvement to residential real
property or other improvement immediately adjacent to a new improvement
to residential real property; or
(2) a landman performs the surveying service and it
is necessary to negotiate or secure land or mineral rights for acquisition
or trade, including:
(A) determining ownership;
(B) negotiating a trade or agreement regarding land
or mineral rights;
(C) drafting and administering contractual agreements;
(D) ensuring that all governmental regulations are
complied with; and
(E) any other action necessary to complete the transaction
related to a service described by this subsection, other than an information
service described by Tax Code, §151.0038 (Information Service).
(e) Responsibilities of persons providing surveying
services.
(1) A person who performs a surveying service described
in subsection (a)(5) of this section for consideration must obtain
a sales and use tax permit and collect and remit sales or use taxes
on all charges for taxable surveying services.
(2) A person who performs a surveying service for a
contractor who claims the service is excluded from tax as described
in subsection (d)(1) of this section must obtain documentation from
the contractor demonstrating the surveying service is being purchased
as part of the construction of a new improvement to residential real
property or other improvement immediately adjacent to a new improvement
to residential real property. The contractor and the person who performs
the surveying service must retain a copy of these records in accordance
with §3.281 of this title (relating to Records Required; Information
Required). If the comptroller later determines that the surveying
service purchased by the contractor was taxable, the contractor will
be liable for the tax due on the purchase including any related penalty
and interest.
(3) A landman who performs a surveying service defined
in subsection (a)(5) of this section that is excluded from tax because
it meets the requirements in subsection (d)(2) of this section must
retain documentation demonstrating the surveying service provided
was not taxable. The landman and purchaser must retain these records
in accordance with §3.281 of this title.
(4) If a purchaser or seller of a nontaxable surveying
service described in subsection (d)(1) or (2) of this section does
not maintain the documentation demonstrating that the service is nontaxable,
the comptroller may proceed against either the seller or the purchaser,
or both until the tax, penalty, and interest have been paid. See §3.282(m)
of this title (relating to Auditing Taxpayer Records.)
(f) Resale and exemption certificates. The sale of
a surveying service described in subsection (a)(5) of this section
is presumed taxable.
(1) Resale certificates. A person who performs a taxable
surveying service may issue a resale certificate to a supplier in
lieu of paying tax on purchases of tangible personal property if care,
custody, and control of the property transfers to the purchaser as
part of the taxable surveying service. The care, custody, and control
of tangible personal property is transferred to the purchaser of the
service when the purchaser has primary possession of the tangible
personal property. For example, a person who performs a taxable surveying
service may issue a resale certificate to a supplier when purchasing
metal pins or PK nails used to mark boundary lines. A person who performs
a taxable surveying service may also issue a resale certificate in
lieu of paying tax on purchases of taxable services the person intends
to transfer to the purchaser as an integral part of the taxable surveying
service. A person who performs taxable surveying services owes tax
on tangible personal property, such as supplies, machinery and equipment,
used or consumed in performing the service.
(A) A person who performs a taxable surveying service
may not accept a resale certificate in lieu of collecting tax on a
taxable surveying service sold to a purchaser who acquires the service
for the purpose of providing a nontaxable service. For example, a
person performing taxable surveying services may not accept a resale
certificate from a title company on taxable surveying services used
in performing nontaxable real estate closing services, even if the
title company transfers the survey to the real estate purchaser after
the closing. Similarly, a person performing taxable surveying services
may not accept a resale certificate from an engineering firm on taxable
surveying services acquired for the purpose of providing nontaxable
engineering services to either an exempt or non-exempt customer. The
engineer owes tax on the purchase of the taxable surveying service
used in the provision of the nontaxable engineering service. The engineering
firm and the title company are the end-consumers of the taxable surveying
services purchased to provide their respective nontaxable services.
(B) A person who performs a nontaxable surveying service
may not issue a resale certificate in lieu of paying tax on taxable
items used or consumed in performing the nontaxable surveying service.
A person who performs a nontaxable surveying service is the end-consumer
of all taxable items purchased, leased, or rented to perform the nontaxable
service. A person who performs a nontaxable surveying service owes
tax on all taxable items purchased to perform the service, unless
the items are otherwise exempt.
(2) Exemption certificates. A person who performs a
taxable surveying service may accept a properly completed exemption
certificate in lieu of collecting tax if an exempt entity directly
contracts for and purchases the surveying service. See §3.322
of this title (relating to Exempt Organizations), §3.287 of this
title (relating to Exemption Certificates). See also §3.288 of
this title (relating to Direct Payment Procedures and Qualifications)
regarding purchasers who may issue a direct payment exemption certificate.
Purchase vouchers that are issued by governmental entities exempted
under Tax Code, §151.309, are acceptable documentation of exempt
transactions. See §3.322(g)(3) of this title.
(A) Except as provided by subparagraph (B) of this
paragraph, a person who performs a taxable surveying service may not
accept an exemption certificate from a person performing nontaxable
services for an exempt entity described in Tax Code, §151.309
or §151.310. The person providing the nontaxable services is
the end consumer and owes tax on the purchase of the taxable surveying
service, even if the person providing the nontaxable services provides
a copy of the survey to the exempt entity upon completion of its nontaxable
services.
(B) A person who performs a taxable surveying service
may accept an exemption certificate from a contractor under Tax Code, §151.311,
on a purchase of a taxable item for use under a contract to improve
realty for an organization that is exempt under Tax Code, §151.309
or §151.310.
(g) Unrelated services.
(1) A service is an unrelated service if:
(A) it is not a taxable surveying service nor a service
or labor taxable under another provision of Tax Code, Chapter 151
(Limited Sales, Excise, and Use Tax);
(B) it is not provided as a part of the taxable surveying
service and is of a type that is commonly provided on a stand-alone
basis; and
(C) the performance of the unrelated service is distinct
and identifiable. Examples of services that are distinct and identifiable
from taxable surveying services include nontaxable surveying services,
such as a topographical survey, engineering services and architectural
or landscaping design services.
(2) Unrelated nontaxable services and taxable surveying
services sold or purchased for a single charge. When an unrelated
nontaxable service and a taxable surveying service are sold together
for a single charge, the total amount charged is presumed to be taxable.
This presumption does not apply if the portion of the charge attributable
to the taxable surveying service represents 5.0% or less of the total
charge.
(A) The person performing the taxable surveying service
with an unrelated nontaxable service may overcome the presumption
of taxability by separately stating a reasonable charge for the taxable
surveying service to the purchaser at the time of the transaction.
A purchaser may presume, in the context of this section, that the
service provider's separately stated charge for a taxable surveying
service is reasonable. If the charge attributable to the taxable surveying
service is not separately stated at the time of the transaction, the
service provider or the purchaser may later establish for the comptroller,
through documentary evidence, the portion of the total charge that
is attributable to an unrelated service.
Cont'd... |
