| (a) Definitions. The following words and terms, when
used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1) Confirm--To perform any act, at a location or remotely,
to reestablish or verify boundaries of real property or the location
of a real property improvement. The term includes reestablishing or
verifying the location of a boundary used as a reference point to
locate or measure to another point, such as the location of an improvement
in relation to the boundaries of real property.
(2) Contractor--A person who makes an improvement on
real property and who, as a necessary or incidental part of the service,
incorporates tangible personal property into the real property improved.
For the purposes of this section, the term includes a builder, developer,
speculative builder, or other person acting as a builder to improve
residential real property.
(3) Determine--To perform any act, at a location or
remotely, to establish, mark, or set the boundaries of real property
or the location of an improvement. The term includes ascertaining
the location of a boundary used as a reference point to locate or
to measure another point, such as the location of an improvement in
relation to the boundaries of real property.
(4) Landman--An individual who, in the course and scope
of the individual's business:
(A) acquires or manages petroleum or mineral interests;
or
(B) performs title or contract functions related to
the exploration, exploitation, or disposition of petroleum or mineral
interests.
(5) Surveying service--An activity performed on land,
from the air, under water or remotely that uses relevant elements
of law, research, measurement, analysis, computation, mapping, and
land description to determine or confirm the boundaries of real property
or to determine or confirm the location of an improvement in relation
to the boundaries of real property. Professional surveying subject
to regulation under Occupations Code, Chapter 1071 (Land Surveyors),
is presumed to be a surveying service.
(b) Taxable surveying services. Except as provided
in subsection (d) of this section, surveying activities described
in subsection (a)(5) of this section that are performed for real property
located in Texas are taxable as real property services, including
the preparation of the following types of surveys:
(1) As-built survey. A survey to depict the relationship
of improvements to property boundary lines.
(2) Boundary survey. A survey to determine or confirm
a boundary line on real property, or to obtain data for constructing
a map or description showing a boundary line.
(3) Easement survey. A survey to determine or confirm
by map or description, the boundaries of a tract of real property
used in granting the right, privilege, or liberty given to a person
or group to use land belonging to another for a specific and definite
purpose. An easement survey may document existing easements or be
used to establish a new easement.
(4) Land title survey. A boundary survey to determine
or confirm boundary locations for title transfer of real property.
(5) Right-of-way survey. A survey to determine or confirm
right-of way-lines, center lines, or reference lines, including surface,
overhead and underground lines. Such surveys typically document the
route of highways, railroads, pipelines, waterways or canals, and
transmission lines for electrical or communication purposes.
(6) Subdivision plat. A survey to divide a tract of
real property into parcels or lots, and may include the location of
items such as street rights-of-ways or easements. The survey is often
performed to meet subdivision statutes or county and municipal regulations.
This survey may also be referred to as a lot survey.
(7) Title survey. A survey to investigate and evaluate
factors affecting and influencing boundary locations, ownership lines,
rights-of-way, and easements within or immediately surrounding a tract
of real property. A title survey is commonly performed to locate,
determine, or reestablish property boundaries for title insurance
purposes.
(8) Staking and placement services. A survey that establishes,
remotely or on the ground, the location and position of various structures
or construction projects in relation to the boundaries of the involved
site. The survey is used for defining the positions of buildings,
structures, wells, canals, fences, walls, and other physical facilities
in relation to the boundaries or property lines of the site.
(c) Nontaxable surveying services. Surveying activities
not described in subsection (a)(5) of this section are not taxable
as real property services. Examples of nontaxable surveying services
include:
(1) As-built verification survey. A survey after construction
is completed to determine characteristics of an improvement other
than its relationship to property boundary lines, such as principal
horizontal and vertical control points, and the dimensions of the
finished structures and/or infrastructures.
(2) Construction survey. Activities prior to and during
a construction project to measure aspects of an improvement other
than its relationship to property boundary lines, such as activities
to control elevation, horizontal location, dimensions, or configuration;
to determine if the construction was adequately completed; and to
obtain dimensions for calculating quantities used in construction.
(3) Design survey. A survey to obtain information that
is essential for planning an engineering project or development and
estimating its cost.
(4) Existing oil, gas, or oil and gas well ties survey.
A survey to gather the locations of existing oil or gas wells in relation
to the location of proposed wells.
(5) Geodetic/Control survey. A survey to provide horizontal
and/or vertical coordinates of fixed points on the surface of the
earth to which supplementary surveys or mapping efforts are adjusted.
(6) Hydrographic survey. A survey to determine the
geometric and dynamic characteristics of bodies of water, including
a record of a survey, of a given date, of a water covered region,
with particular attention to the relief of the bottom and features
under the surface.
(7) Monitoring deformation survey. A survey to periodically
measure the horizontal and vertical movement or warpage of the surface
of the earth or a physical object or structure.
(8) Oil or gas drilling unit, proration unit, and pooled
unit plats. A drilling unit, proration unit, or pooled unit plat submitted
to the Railroad Commission.
(9) Seismic survey. A survey to determine the subterranean
composition and structure in an area, generally by using a vibroseis
or small explosives to measure vibrations.
(10) Topographic survey. A survey to determine the
configuration, relief, or elevations of a portion of the earth's surface,
including the location of natural features.
(11) Tree survey. A survey to locate and identify existing
trees on real property. If services are performed to evaluate the
health of a tree, to remove a tree, or to prune a tree, those services
are taxable landscaping services. See §3.356 of this title (relating
to Real Property Service).
(12) Building elevation survey. A survey to certify
building elevations that is issued for completion of the National
Flood Insurance Program Elevation Certificate. If the survey or certificate
issued is used to evaluate risks to property, is used to determine
an individual's eligibility for insurance coverage, is used to determine
the proper insurance premium rate, or for determining the payment
of insurance policy benefits, the survey provided is taxable as an
insurance service. See §3.355 of this title (relating to Insurance
Services).
(13) Archaeological or historic significance survey.
A survey to identify items of archaeological or historic significance
performed after boundary surveying has been completed.
(14) Location services. Staking, painting, or otherwise
marking the approximate future or existing surface positions of tangible
personal property or improvements to realty when the service provider
takes no actions listed in subsection (a)(5) of this section to determine
or confirm the precise property or easement boundaries or the exact
location of the item in relation to the boundaries. For example, marking
the approximate location where a portable building is to be installed
or staking or re-staking the approximate centerline of a pipeline
is not taxable when the person marking the approximate location does
not determine or confirm the location of the structures in relation
to the boundaries of real property.
(d) Excluded surveying services. A person performing
a surveying service described in subsection (a)(5) of this section
is not performing a taxable real property service if:
(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 Cont'd... |
