Sec. 151.107. RETAILER ENGAGED IN BUSINESS IN THIS STATE. (a) For the purpose of this subchapter and in relation to the use tax, a retailer is engaged in business in this state if the retailer:
(1) maintains, occupies, or uses in this state permanently, temporarily, directly, or indirectly or through a subsidiary or agent by whatever name, an office, distribution center, sales or sample room or place, warehouse, storage place, or any other physical location where business is conducted;
(2) has a representative, agent, salesman, canvasser, or solicitor operating in this state under the authority of the retailer or its subsidiary for the purpose of selling or delivering or the taking of orders for a taxable item;
(3) derives receipts from the sale, lease, or rental of tangible personal property situated in this state;
(4) engages in regular or systematic solicitation of sales of taxable items in this state by the distribution of catalogs, periodicals, advertising flyers, or other advertising, by means of print, radio, or television media, or by mail, telegraphy, telephone, computer data base, cable, optic, microwave, or other communication system for the purpose of effecting sales of taxable items;
(5) solicits orders for taxable items by mail or through other media and under federal law is subject to or permitted to be made subject to the jurisdiction of this state for purposes of collecting the taxes imposed by this chapter;
(6) has a franchisee or licensee operating under its trade name if the franchisee or licensee is required to collect the tax under this section;
(7) holds a substantial ownership interest in, or is owned in whole or substantial part by, a person who maintains a location in this state from which business is conducted and if:
(A) the retailer sells the same or a substantially similar line of products as the person with the location in this state and sells those products under a business name that is the same as or substantially similar to the business name of the person with the location in this state; or
(B) the facilities or employees of the person with the location in this state are used to:
(i) advertise, promote, or facilitate sales by the retailer to consumers; or
(ii) perform any other activity on behalf of the retailer that is intended to establish or maintain a marketplace for the retailer in this state, including receiving or exchanging returned merchandise;
(8) holds a substantial ownership interest in, or is owned in whole or substantial part by, a person that:
(A) maintains a distribution center, warehouse, or similar location in this state; and
(B) delivers property sold by the retailer to consumers; or
(9) otherwise does business in this state.
(b) Notwithstanding any other provision of law, a broadcaster, printer, outdoor advertising firm, advertising distributor, or publisher that broadcasts, publishes, displays, or distributes paid commercial advertising in this state that is intended to be disseminated primarily to consumers located in this state and is only secondarily disseminated to bordering jurisdictions, including advertising appearing exclusively in a Texas edition or section of a national publication, is considered for purposes of this section to be the agent of the person placing the advertisement and that person placing the advertisement is considered a retailer engaged in business in this state. The agency relationship recognized by this subsection is for the sole purpose of providing a presence in this state for the imposition of a tax on out-of-state advertisers or sellers. The agent has no responsibility to report, or liability to pay, a tax for the out-of-state advertiser or seller and is not restricted by this subchapter from accepting ads from out-of-state advertisers or sellers.
Subsection (c) effective contingent upon federal legislation as provided in Acts 1989, 71st Leg., ch. 291, Sec. 5.
(c) Nonresident persons shall collect the tax imposed by this chapter with respect to the sale of tangible personal property to the extent authorized by federal law. Such taxes shall be remitted quarterly to the comptroller pursuant to rules adopted by the comptroller in conformance with federal law. This subsection does not apply to nonresident persons whose activities would subject them to a duty to pay, collect, or remit a sales or use tax under this chapter or Title 3 of this code in the absence of federal legislation.
(d) In this section:
(1) "Ownership" includes:
(A) direct ownership;
(B) common ownership; and
(C) indirect ownership through a parent entity, subsidiary, or affiliate.
(2) "Substantial" means, with respect to an ownership interest, an interest in an entity that is:
(A) if the entity is a corporation, at least 50 percent, directly or indirectly, of:
(i) the total combined voting power of all classes of stock of the corporation; or
(ii) the beneficial ownership interest in the voting stock of the corporation;
(B) if the entity is a trust, at least 50 percent, directly or indirectly, of the current beneficial interest in the trust corpus or income;
(C) if the entity is a limited liability company, at least 50 percent, directly or indirectly, of:
(i) the total membership interest of the limited liability company; or
(ii) the beneficial ownership interest in the membership interest of the limited liability company; or
(D) for any entity, including a partnership or association, at least 50 percent, directly or indirectly, of the capital or profits interest in the entity.
Acts 1981, 67th Leg., p. 1553, ch. 389, Sec. 1, eff. Jan. 1, 1982. Amended by Acts 1987, 70th Leg., 2nd C.S., ch. 5, art. 1, pt. 4, Sec. 19; Acts 1989, 71st Leg., ch. 291, Sec. 2; Acts 1991, 72nd Leg., 1st C.S., ch. 5, Sec. 14.14.
Amended by:
Acts 2011, 82nd Leg., 1st C.S., Ch. 4 (S.B. 1), Sec. 30.02, eff. January 1, 2012.
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