| (a) Definitions. The following words and terms, when
used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1) Dealer--A wholesaler, retailer, or any other person
who sells or offers to sell lead-acid batteries.
(2) Lead-acid battery--Any battery, new or used, which
contains lead and sulfuric acid, in liquid or gel form.
(3) Marketplace--A physical or electronic medium through
which persons other than the owner or operator of the medium make
sales of lead-acid batteries. The term includes a store, Internet
website, software application, or catalog.
(4) Marketplace provider--A person who owns or operates
a marketplace and directly or indirectly processes sales of or payments
for lead-acid batteries for marketplace sellers.
(5) Marketplace seller--A seller, other than the marketplace
provider, who makes a sale of a lead-acid battery through a marketplace.
(6) Sale for resale--A sale of a lead-acid battery
to a purchaser for the purpose of reselling the battery in the normal
course of business in the form or condition in which it is acquired
(i.e., as a separate item). A sale of a battery that is attached to
or becomes an integral part of a vehicle, boat, or other equipment
that is being sold, rented, or leased is not a sale for resale. The
battery sales fee is due on the sale prior to the battery becoming
a part of this equipment.
(b) Collection of the fee.
(1) Except as provided in subsection (h) of this section,
a dealer, and effective July 1, 2022, a marketplace provider, must
collect the fee on each sale of a lead-acid battery that is not for
resale.
(A) For each lead-acid battery with a capacity of less
than 12 volts, the fee is $2.00.
(B) For each lead-acid battery with a capacity of 12
or more volts, the fee is $3.00.
(C) A fee shall not be charged, collected, or allowed
as an offset on a battery taken as a trade-in.
(2) If a dealer or a marketplace provider fails to
collect the fee required in paragraph (1) of this subsection, the
comptroller may collect the fee from the purchaser.
(3) The fee is not due on the sale of a vehicle, boat,
or other equipment that has a battery as an integral part of it.
(4) The amount of the fee due must be separately stated
on the invoice, bill, or contract to the customer and shall be identified
as the Texas battery sales fee.
(5) A dealer or a marketplace provider may not advertise,
make public, indicate, or imply that the dealer or marketplace provider
will absorb, assume, or refund any portion of the fee.
(c) Due date and reporting requirements.
(1) Monthly filing. The battery sales fee is due and
payable on or before the 20th day of the month following the end of
each calendar month. Returns must be filed on a monthly basis unless
a dealer or a marketplace provider qualifies as a quarterly filer
under paragraph (2) of this subsection.
(2) Quarterly filing. A dealer or a marketplace provider
who owes an average, as computed for the year, of less than $50 for
a calendar month or less than $150 for a calendar quarter is required
to file a return and remit the collected fees on or before the 20th
day of the month following the end of the calendar quarter. The comptroller
will notify a dealer or marketplace provider when the report and payment
may be submitted quarterly.
(d) Report forms. The battery sales fee is to be reported
on the Texas battery sales fee report form as prescribed by the comptroller.
The fact that the dealer or a marketplace provider does not receive
the form or does not receive the correct form from the comptroller
for the filing of the return does not relieve the dealer or marketplace
provider of the responsibility of filing a return and remitting the
fee.
(e) Remittance of the fee.
(1) On or before the 20th day of the month following
each reporting period, every dealer or marketplace provider required
to collect the fee shall file a consolidated return for all businesses
operating under the same taxpayer number and remit the total fee due.
(2) The returns must be signed by the dealer or marketplace
provider required to file the return or by the dealer's or marketplace
provider's duly authorized agent.
(f) Discount. A dealer or marketplace provider who
is required to collect the battery sales fee may retain $.025 from
each fee collected.
(g) Records required.
(1) Invoices or other records must be kept for at least
four years after the date on which the invoices or records are prepared.
(2) The comptroller or an authorized representative
has the right to examine any records or equipment of any dealer or
marketplace provider liable for the fee to verify the accuracy of
any return made or to determine the fee liability in the event no
return is filed.
(h) Exemptions.
(1) Sales for resale are not subject to the fee.
(2) The sale of a battery that under the sales contract
is shipped to a point outside Texas is not subject to the fee imposed
by this section if the shipment is made by the seller by means of:
(A) the facilities of the seller;
(B) delivery by the seller to a carrier for shipment
to a consignee at a point outside this state; or
(C) delivery by the seller to a forwarding agent for
shipment to a location in another state of the United States or its
territories or possessions.
(3) Exports beyond the territorial limits of the United
States are not subject to the fee. Proof of export may be shown only
by:
(A) a copy of a bill of lading issued by a licensed
and certificated carrier showing the seller as consignor, the buyer
or purchaser as consignee, and a delivery point outside the territorial
limits of the United States;
(B) documentation provided by a licensed United States
customs broker certifying that delivery was made to a point outside
the territorial limits of the United States;
(C) formal entry documents from the country of destination
showing that the battery was imported into a country other than the
United States. For the country of Mexico, the formal entry document
is the pedimento de importaciones document with a computerized, certified
number issued by Mexican customs officials;
(D) a copy of the original airway, ocean, or railroad
bill of lading issued by a licensed and certificated carrier which
describes the items being exported and a copy of the freight forwarder's
receipt if the freight forwarder takes possession of the property
in Texas; or
(E) a purchaser's blanket maquiladora exemption certificate
and a copy of the purchaser's maquiladora export permit provided to
the seller as required under §3.358 of this title (relating to
Maquiladoras).
(4) There is no exemption provided for any organization
or governmental agency, except as provided in paragraph (5) of this
subsection.
(5) The United States, its instrumentalities, and agencies
are exempted from the battery sales fee.
(6) Sales for disposal or reclamation are not subject
to the fee.
(7) The battery sales fee does not apply to a sale
of a battery made by a dealer or a marketplace provider when it meets
all of the following criteria:
(A) the ampere-hour rating of the battery is less than
10 ampere-hours;
(B) the sum of the dimensions of the battery (height,
width, and length) is less than 15 inches; and
(C) the battery is sealed so that no access to the
interior of the battery is possible without destroying the battery.
(i) Replacements covered by a warranty or service contract.
(1) The replacement of a battery under a manufacturer's
warranty, without an additional charge to the purchaser, is not the
sale of a battery to the purchaser. This replacement, therefore, is
not subject to the fee. If there is a charge to the customer for the
replacement (such as a pro rata warranty adjustment), then the customer
must pay the battery sales fee.
(2) The replacement of a battery under an extended
warranty or a service contract, for which the customer pays an extra
charge, depends on the terms of the contract.
(A) If the replacement is free of charge to the customer,
the dealer is responsible for paying the fee.
(B) If there is a charge to the customer for the replacement,
the customer must pay the fee.
(j) Penalty. A dealer or marketplace provider who does
not file a report as provided by this section, or who possesses a
fee collected or payable under this section and does not timely remit
the fee to the comptroller, shall pay a penalty of 5.0% of the amount
of the fee due and payable. If the dealer or marketplace provider
does not file the report or pay the fee before the 30th day after
the date on which the fee or report is due, the dealer or marketplace
provider shall pay a penalty of an additional 5.0% of the amount of
the fee due and payable.
(k) Interest. Interest accrues on the unpaid fee due
beginning 60 days after the due date and ends the day on which the
fee is paid.
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| Source Note: The provisions of this §3.711 adopted to be effective April 28, 1992, 17 TexReg 2779; amended to be effective October 14, 1993, 18 TexReg 6744; amended to be effective October 12, 2004, 29 TexReg 9555; amended to be effective February 18, 2007, 32 TexReg 537; amended to be effective May 4, 2020, 45 TexReg 2886; amended to be effective October 5, 2023, 48 TexReg 5739 |
