| (22) Temporary place of business of the seller--A location
operated by a seller for a limited period of time for the purpose
of selling and receiving orders for taxable items and where the seller
has inventory available for immediate delivery to a purchaser. For
example, a person who rents a booth at a weekend craft fair or art
show to sell and take orders for jewelry, or a person who maintains
a facility at a job site to rent tools and equipment to a contractor
during the construction of real property, has established a temporary
place of business. A temporary place of business of the seller includes
a sale outside of a distribution center, manufacturing plant, storage
yard, warehouse, or similar facility of the seller in a parking lot
or similar space sharing the same physical address as the facility
but not within the walls of the facility.
(23) Transit authority--A metropolitan rapid transit
authority (MTA), advanced transportation district (ATD), regional
or subregional transportation authority (RTA), city transit department
(CTD), county transit authority (CTA), regional mobility authority
(RMA) or coordinated county transportation authority created under
Transportation Code, Chapters 370, 451, 452, 453, 457, or 460.
(24) Two percent cap--A reference to the general rule
that, except as otherwise provided by Texas law and as explained in
this section, a seller cannot collect, and a purchaser is not obligated
to pay, more than 2.0% of the sales price of a taxable item in total
local sales and use taxes for all local taxing jurisdictions.
(25) Use--This term has the meaning given in §3.346
of this title.
(26) Use tax--A tax imposed on the storage, use or
other consumption of a taxable item in this state.
(b) Determining the place of business of a seller.
(1) Distribution centers, manufacturing plants, storage
yards, warehouses, and similar facilities.
(A) A distribution center, manufacturing plant, storage
yard, warehouse, or similar facility operated by a seller for the
purpose of selling taxable items where sales personnel of the seller
receive three or more orders for taxable items during the calendar
year from persons other than employees, independent contractors, and
natural persons affiliated with the seller is a place of business
of the seller. Forwarding previously received orders to the facility
for fulfilment does not make the facility a place of business.
(B) If a location that is a place of business of the
seller, such as a sales office, is in the same building as a distribution
center, manufacturing plant, storage yard, warehouse, or similar facility
operated by a seller, then the entire facility is a place of business
of the seller.
(2) Kiosks. A kiosk is not a place of business of the
seller for the purpose of determining where a sale is consummated
for local tax purposes. A seller who owns or operates a kiosk in Texas
is, however, engaged in business in this state as provided in §3.286
of this title.
(3) Purchasing offices.
(A) A purchasing office is not a place of business
of the seller if the purchasing office exists solely to rebate a portion
of the local sales and use tax imposed by Tax Code, Chapters 321,
322, or 323 to a business with which it contracts; or if the purchasing
office functions or exists to avoid the tax legally due under Tax
Code, Chapters 321, 322, or 323. A purchasing office does not exist
solely to rebate a portion of the local sales and use tax or to avoid
the tax legally due under Tax Code, Chapters 321, 322, or 323 if the
purchasing office provides significant business services to the contracting
business beyond processing invoices, including logistics management,
purchasing, inventory control, or other vital business services.
(B) In making a determination under subparagraph (A)
of this paragraph, as to whether a purchasing office provides significant
business services to the contracting business beyond processing invoices,
the comptroller will compare the total value of the other business
services to the value of processing invoices. If the total value of
the other business services, including logistics management, purchasing,
inventory control, or other vital business services, is less than
the value of the service to process invoices, then the purchasing
office will be presumed not to be a place of business of the seller.
(C) If the comptroller determines that a purchasing
office is not a place of business of the seller, the sale of any taxable
item is deemed to be consummated at the place of business of the seller
from whom the purchasing office purchased the taxable item for resale
and local sales and use taxes are due according to the following rules.
(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.
Cont'd... |
