| (i) When taxable items are purchased from a Texas seller,
local sales taxes are due based on the location of the seller's place
of business where the sale is deemed to be consummated, as determined
in accordance with subsection (c) of this section.
(ii) When the sale of a taxable item is deemed to be
consummated at a location outside of this state, local use tax is
due based on the location where the items are first stored, used or
consumed by the entity that contracted with the purchasing office
in accordance with subsection (d) of this section.
(4) An order that is received by a salesperson who
is not at a place of business of the seller when the salesperson receives
the order is treated as being received at the location from which
the salesperson operates. Examples include orders that a salesperson
receives by mail, telephone, including Voice over Internet Protocol
and cellular phone calls, facsimile, and email while traveling. The
location from which the salesperson operates is the principal fixed
location where the salesperson conducts work-related activities. The
location from which a salesperson operates will be a place of business
of the seller only if the location meets the definition of a "place
of business of a seller" in subsection (a)(16) of this section on
its own, without regard to the orders imputed to that location by
this paragraph.
(5) A facility without sales personnel is usually not
a "place of business of the seller." A vending machine is not "an
established outlet, office, or location," and does not constitute
a "place of business of the seller." Instead, a vending machine sale
is treated as a sale by an itinerant vendor. See subsections (a)(10)
and (c)(6) of this section. However, a walk-in retail outlet with
a stock of goods available for immediate purchase through a cashier-less
point of sale terminal at the outlet would be "an established outlet,
office, or location" so as to constitute a "place of business of the
seller" even though sales personnel are not required for every sale.
A computer that operates an automated shopping cart software program
is not an established outlet, office, or location," and does not constitute
a "place of business of the seller." A computer that operates an automated
telephone ordering system is not "an established outlet, office, or
location," and does not constitute a "place of business of the seller."
(c) Local sales tax - Consummation of sale - determining
the local taxing jurisdictions to which sales tax is due. Except for
the special rules applicable to remote sellers in subsection (i)(3)
of this section, direct payment permit purchases in subsection (j)
of this section, and certain taxable items, including taxable items
sold by a marketplace provider, as provided in subsection (k) of this
section, each sale of a taxable item is consummated at the location
indicated by the provisions of this subsection. The following rules,
taken from Tax Code, §321.203 and §323.203, apply to all
sellers engaged in business in Texas, regardless of whether they have
no place of business in Texas, a single place of business in Texas,
or multiple places of business in Texas.
(1) Consummation of sale - order received at a place
of business of the seller in Texas.
(A) Order placed in person. Except as provided by paragraph
(3) of this subsection, when an order for a taxable item is placed
in person at a seller's place of business in Texas, including at a
temporary place of business of the seller in Texas, the sale of that
item is consummated at that place of business of the seller, regardless
of the location where the order is fulfilled.
(B) Order not placed in person.
(i) Order fulfilled at a place of business of the seller
in Texas. When an order is received at a place of business of the
seller in Texas and is fulfilled at a place of business of the seller
in Texas, the sale is consummated at the place of business where the
order is fulfilled.
(ii) Order not fulfilled at a place of business of
the seller in Texas. When an order is received at a place of business
of the seller in Texas and is fulfilled at a location that is not
a place of business of the seller in Texas, the sale is consummated
at the place of business where the order is received.
(2) Consummation of sale - order not received at a
place of business of the seller in Texas.
(A) Order fulfilled at a place of business of the seller
in Texas. When an order is received at a location that is not a place
of business of the seller in Texas or is received outside of Texas,
and is fulfilled from a place of business of the seller in Texas,
the sale is consummated at the place of business where the order is
fulfilled.
(B) Order not fulfilled from a place of business of
the seller in Texas.
(i) Order fulfilled in Texas. When an order is received
at a location that is not a place of business of the seller in Texas
and is fulfilled from a location in Texas that is not a place of business
of the seller, the sale is consummated at the location in Texas to
which the order is shipped or delivered, or at which the purchaser
of the item takes possession.
(ii) Order not fulfilled in Texas. When an order is
received by a seller at a location that is not a place of business
of the seller in Texas, and is fulfilled from a location outside of
Texas, the sale is not consummated in Texas. However, a use is consummated
at the first point in Texas where the item is stored, used, or consumed
after the interstate transit has ceased. A taxable item delivered
to a point in Texas is presumed to be for storage, use, or consumption
at that point until the contrary is established. Local use tax should
be collected as provided in subsection (d) of this section. Except
as provided in subsection (i)(3) of this section, a remote seller
required to collect state use tax under §3.286(b)(2) of this
title must also collect local use tax.
(3) Exception for qualifying economic development agreements
entered into before January 1, 2009, pursuant to Tax Code, §321.203(c-4)
- (c-5) or §323.203(c-4) - (c-5). This paragraph is effective
until September 1, 2024. If applicable, the local sales tax due on
the sale of a taxable item is based on the location of the qualifying
warehouse, which is a place of business of the seller, from which
the item is shipped or delivered or at which the purchaser of the
item takes possession.
(4) Local sales taxes are due to each local taxing
jurisdiction with sales tax in effect where the sale is consummated.
Local use tax may also be due if the total amount of local sales taxes
due does not reach the two percent cap, and the item purchased is
shipped or delivered to a location in one or more different local
taxing jurisdictions, as provided in subsection (d) of this section.
(5) Multiple special purpose district taxes, multiple
transit authority sales taxes, or a combination of the two may apply
to a single transaction. If the sale of a taxable item is consummated
at a location within the boundaries of multiple special purpose districts
or transit authorities, local sales tax is owed to each of the jurisdictions
in effect at that location. For example, a place of business of the
seller located in the city of San Antonio is within the boundaries
of both the San Antonio Advanced Transportation District and the San
Antonio Metropolitan Transit Authority, and the seller is required
to collect sales tax for both transit authorities. Similarly, a place
of business of the seller in Flower Mound is located within the boundaries
of two special purpose districts, the Flower Mound Crime Control District
and the Flower Mound Fire Control District, and the seller is responsible
for collecting sales tax for both special purpose districts.
(6) Itinerant vendors; vending machines.
(A) Itinerant vendors. Sales made by itinerant vendors
are consummated at, and itinerant vendors must collect sales tax based
upon, the location where the item is delivered or at which the purchaser
of the item takes possession. Itinerant vendors do not have any responsibility
to collect use tax.
(B) Vending machines. Sales of taxable items made from
a vending machine are consummated at the location of the vending machine.
See §3.293 of this title (relating to Food; Food Products; Meals;
Food Service) for more information about vending machine sales.
(d) Local use tax. The provisions addressing the imposition
of state use tax in §3.346 of this title also apply to the imposition
of local use tax. For example, consistent with §3.346(e) of this
title, all taxable items that are shipped or delivered to a location
in this state that is within the boundaries of a local taxing jurisdiction
are presumed to have been purchased for use in that local taxing jurisdiction
as well as presumed to have been purchased for use in the state.
(1) General rules.
Cont'd... |
