TAX CODE
SUBTITLE B. ENFORCEMENT AND COLLECTION
CHAPTER 111. COLLECTION PROCEDURES
SUBCHAPTER A. COLLECTION DUTIES AND POWERS
§ 111.001. COMPTROLLER TO COLLECT TAXES. The
comptroller shall collect the taxes imposed by this title except as
otherwise provided by this title.
Acts 1981, 67th Leg., p. 1495, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.002. COMPTROLLER'S RULES; COMPLIANCE;
FORFEITURE. (a) The comptroller may adopt rules that do not
conflict with the laws of this state or the constitution of this
state or the United States for the enforcement of the provisions of
this title and the collection of taxes and other revenues under this
title. In addition to the discretion to adopt, repeal, or amend
such rules permitted under the constitution and laws of this state
and under the common law, the comptroller may adopt, repeal, or
amend such rules to reflect changes in the power of this state to
collect taxes and enforce the provisions of this title due to
changes in the constitution or laws of the United States and
judicial interpretations thereof.
(b) A person who does not comply with a rule made under this
section forfeits to the state an amount of not less than $25 nor
more than $500. Each day on which a failure to comply occurs or
continues is a separate violation.
(c) If a forfeiture is not paid, the attorney general shall
file suit to recover the forfeiture in a court of competent
jurisdiction in Travis County or in any other county where venue
lies.
(d) Any other provision of this code that imposes a
different penalty for the violation of a comptroller's rule made
for the enforcement or collection of a specific tax imposed by this
title prevails over the penalty provided by this section.
Acts 1981, 67th Leg., p. 1495, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 231, § 2, eff. Aug. 28,
1989.
§ 111.0021. APPLICATION TO OTHER TAXES AND FEES. This
chapter also applies to a tax or fee that the comptroller is
required to collect under a law not included in this title.
Added by Acts 1991, 72nd Leg., ch. 705, § 1, eff. Sept. 1, 1991.
§ 111.0022. APPLICATION TO OTHER LAWS ADMINISTERED BY
COMPTROLLER. This subtitle and Subtitle A of this title apply to
the administration, collection, and enforcement of other taxes,
fees, and charges, including penalties, or other financial
transactions, that the comptroller is required or authorized to
collect or administer under other law, to the extent that the other
law does not conflict with this subtitle or Subtitle A of this
title.
Added by Acts 1993, 73rd Leg., ch. 486, § 1.02, eff. Sept. 1,
1993.
§ 111.003. COMPTROLLER'S INVESTIGATIONS. (a) On the
governor's request, the comptroller shall:
(1) investigate the books and accounts of assessing
and collecting officers of the state and other officers or persons
receiving, disbursing, or possessing public funds;
(2) perform other duties and make investigations in
relation to public funds as requested by the governor; and
(3) investigate any state institution and its
policies, management, and operation, including the fiscal affairs
and the conduct and efficiency of any state employee of the
institution.
(b) The comptroller shall report to the governor the results
of an investigation requested under Subsection (a) of this section.
The report must be written and include:
(1) a description of each violation of the revenue
laws;
(2) a description of the failure, if any, to enforce
revenue laws;
(3) the name of each person reasonably believed to
have committed a violation or to have been guilty of nonfeasance;
and
(4) if a state institution is investigated, a
description of the expenditures of the institution and of all sums
of money due the state, the ascertainment and collection of which
does not devolve upon other officers of the state under existing
law.
(c) A person connected with the public service shall submit
all books, records, and accounts to the comptroller without delay
on the request of the comptroller when conducting an investigation
under Subsection (a) of this section.
(d) On the receipt of a report that indicates a violation of
revenue laws or neglect of duty, the governor shall notify the
attorney general, who shall institute criminal and civil
proceedings in the name of the state against persons accused of a
violation or neglect of duty.
(e) The comptroller may at any time examine and investigate
the expenditure of appropriated money for a state institution or
for any other purpose or for improvements made by the state on state
property or money received and disbursed by any board authorized to
receive and disburse state money. The comptroller shall
investigate any state institution when required by information
coming to his own knowledge.
Acts 1981, 67th Leg., p. 1495, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.0034. ADVANCED DATABASE SYSTEM FOR
AUDITS. (a) The comptroller shall develop an advanced electronic
audit database system for use by the comptroller's audit division.
The system must:
(1) centralize management of audit transaction data;
(2) enhance the quality control of data; and
(3) be compatible with other data systems of the
state.
(b) The comptroller may contract with a vendor to develop or
implement the system.
(c) If the comptroller contracts with a vendor to develop or
implement the system, the comptroller must protect any confidential
information provided to the vendor. A person who receives
confidential information under this section and each employee or
agent of that person is subject to the same prohibitions against
disclosure of the information, and the same penalties and sanctions
for improper disclosure, that apply to the comptroller.
Added by Acts 2001, 77th Leg., ch. 1272, § 5.01, eff. June 15,
2001.
§ 111.0035. ADVANCED DATABASE SYSTEM FOR TAX
COLLECTIONS. (a) The comptroller may contract with an
appropriate vendor to develop and implement an advanced database
system to enhance tax collections.
(b) Subject to Subsection (c), the total amount of
compensation paid to the vendor that develops, implements, and
maintains the advanced database system is equal to the product of:
(1) the percentage stated in the contract; and
(2) the amount of revenue collected from taxpayers by
the comptroller, after all available administrative and judicial
appeals are exhausted, as a result of audit and enforcement actions
taken on cases identified from the system.
(c) The amount of compensation paid to a vendor under
Subsection (b) may not exceed the maximum amount, if any, stated in
the contract between the comptroller and the vendor.
(d) The comptroller may pay compensation to a vendor under
this section periodically at the times specified in the contract
between the comptroller and the vendor. The comptroller shall
determine the amount of a periodic payment in accordance with
Subsections (b) and (c). In computing the amount under Subsection
(b)(2), the comptroller may include a case only if the case:
(1) becomes administratively final during the period
covered by the payment; and
(2) is not the subject of litigation at the end of that
period.
(e) The comptroller may pay a vendor under this section only
through warrants issued or electronic funds transfers initiated by
the comptroller. The comptroller shall account for the
compensation as a subtraction from tax collections and not as a
general expense of the comptroller.
(f) Except as provided by Subsection (g), the comptroller
shall award a contract made under this section through a
competitive bidding process that complies with Section 2155.132,
Government Code, and the rules adopted by the General Services
Commission relating to delegated purchases. If the comptroller
receives not more than three bids through the competitive bidding
process, the comptroller shall report the number of bidders to the
Legislative Budget Board before awarding the contract.
(g) The comptroller may enter into separate contracts with
additional appropriate vendors willing and able to develop and
implement an advanced database system to enhance tax collections at
the same rate and under the same terms and conditions as the
contract awarded through competitive bidding.
(h) Except as specifically provided by this section, the
comptroller may include any term or condition in a contract made
under this section that the comptroller considers necessary or
advisable to maximize enhancement of tax collections while
otherwise protecting the state's interests.
(i) The comptroller shall report semiannually to the
Legislative Budget Board the:
(1) amount of revenue collected under this section;
and
(2) amount of compensation awarded to a vendor under
this section.
(j) A person acting on behalf of this state under a contract
authorized by this section does not exercise any of the sovereign
power of this state, except that the person is an agent of this
state for purposes of developing and implementing an advanced
database system to enhance tax collections.
(k) The comptroller may provide to a person acting on behalf
of this state under a contract authorized by this section any
confidential information in the custody of the comptroller that is
necessary to develop and implement an advanced database system to
enhance tax collections and that the comptroller is not prohibited
from sharing under an agreement with another state or the federal
government. A person who receives confidential information under
this subsection and each employee or agent of that person is subject
to each prohibition against disclosure of the information that
applies to the comptroller or an employee of the comptroller. A
person, employee, or agent who receives confidential information
under this subsection and improperly discloses that information is
subject to the same penalties and sanctions that would apply to the
comptroller or an employee of the comptroller for that disclosure.
Added by Acts 1997, 75th Leg., ch. 927, § 1, eff. Sept. 1, 1997.
Amended by Acts 2001, 77th Leg., ch. 1272, § 5.02, eff. June 15,
2001.
§ 111.0036. OUT-OF-STATE AUDITS. (a) The comptroller
may contract with one or more appropriate persons to perform tax
audits in any state that is not covered by a comptroller field
office. A contract may provide for a person to perform tax audits
in more than one state.
(b) Subject to Subsection (c), the amount of compensation
paid to a person performing tax audits under this section is equal
to the product of:
(1) the percentage stated in the contract between the
comptroller and the person; and
(2) the amount of revenue collected from taxpayers by
the comptroller, after all available administrative and judicial
appeals are exhausted, as a result of those audits.
(c) The maximum percentage rate stated in a contract may not
exceed 12 percent. In addition, the amount of compensation paid to
a person under Subsection (b) may not exceed the maximum amount, if
any, stated in the contract between the comptroller and the person.
(d) The comptroller may pay compensation to a person under
this section periodically at the times specified in the contract
between the comptroller and the person. The comptroller shall
determine the amount of a periodic payment in accordance with
Subsections (b) and (c). In computing the amount under Subsection
(b)(2), the comptroller may include a case only if the case:
(1) becomes administratively final during the period
covered by the payment; and
(2) is not the subject of litigation at the end of that
period.
(e) The comptroller may pay a person under this section only
through warrants issued or electronic funds transfers initiated by
the comptroller. The comptroller shall account for the
compensation as a subtraction from tax collections and not as a
general expense of the comptroller.
(f) Except as provided by Subsection (g), the comptroller
shall award a contract made under this section through a
competitive bidding process that complies with Section 2155.132,
Government Code, and the rules adopted by the General Services
Commission relating to delegated purchases. If the comptroller
receives not more than three bids through the competitive bidding
process, the comptroller shall report the number of bidders to the
Legislative Budget Board before awarding the contract.
(g) The comptroller may enter into separate contracts with
additional appropriate persons willing and able to perform tax
audits in other states that are not covered by comptroller field
offices at the same rate and under the same terms and conditions as
the contract awarded through competitive bidding.
(h) The comptroller shall report semiannually to the
Legislative Budget Board the:
(1) amount of revenue collected under this section;
and
(2) amount of compensation awarded to a person with
whom the comptroller contracts under this section.
(i) A person acting on behalf of this state under a contract
authorized by this section does not exercise any of the sovereign
power of this state, except that the person is an agent of this
state for purposes of performing tax audits.
(j) The comptroller may provide to a person acting on behalf
of this state under a contract authorized by this section any
confidential information in the custody of the comptroller relating
to a taxpayer that is necessary to the audit of the taxpayer and
that the comptroller is not prohibited from sharing under an
agreement with another state or the federal government. A person
who receives confidential information under this subsection and
each employee or agent of that person are subject to each
prohibition against disclosure of confidential information
obtained from a taxpayer or this state in connection with a tax
audit that applies to the comptroller or an employee of the
comptroller. A person, employee, or agent who receives
confidential information under this subsection and improperly
discloses that information is subject to the same penalties and
sanctions that would apply to the comptroller or an employee of the
comptroller for that disclosure.
Added by Acts 1997, 75th Leg., ch. 927, § 1, eff. Sept. 1, 1997.
§ 111.004. POWER TO EXAMINE RECORDS AND
PERSONS. (a) For the purpose of carrying out the terms of this
title the comptroller may examine at the principal or any other
office in the United States of any person, firm, agent, or
corporation permitted to do business in this state, all books,
records and papers and also any of their officers or employees under
oath.
(b) If any person refuses to permit an examination or answer
any question authorized by Subsection (a) of this section, the
comptroller may certify the fact of the refusal to the secretary of
state, who shall immediately forfeit the charter or the permit to do
business of the person until the examination as required is
completed.
(c) No charge may be made by the comptroller to examine a
book, record, or paper or to question an officer or employee.
(d) The comptroller's authority to examine books, records,
and papers under this chapter extends to all books, records,
papers, and other objects which the comptroller determines are
necessary for conducting a complete examination under this title.
Acts 1981, 67th Leg., p. 1496, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.0041. RECORDS. (a) Any taxpayer who is required
by this title to keep records shall keep those records open to
inspection by the comptroller, the attorney general, or the
authorized representatives of either of them for four years.
(b) This section prevails over any other conflicting
provision of this title.
Acts 1981, 67th Leg., p. 1496, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1999, 76th Leg., ch. 1467, § 2.11, eff. Oct. 1,
1999.
§ 111.0042. SAMPLING IN AUDITING; PROJECTING
ASSESSMENTS. (a) Repealed by Acts 1983, 68th Leg., p. 982, ch.
234, § 1, eff. May 25, 1983.
(b) Sampling auditing methods are appropriate if:
(1) the taxpayer's records are so detailed, complex,
or voluminous that an audit of all detailed records would be
unreasonable or impractical;
(2) the taxpayer's records are inadequate or
insufficient, so that a competent audit for the period in question
is not otherwise possible; or
(3) the cost of an audit of all detailed records to the
taxpayer or to the state will be unreasonable in relation to the
benefits derived, and sampling procedures will produce a reasonable
result.
(c) Before using a sample technique to establish a tax
liability, the comptroller or his designee must notify the taxpayer
in writing of the sampling procedure to be used.
(d) The sample must reflect as nearly as possible the normal
conditions under which the business was operated during the period
to which the audit applies. If a taxpayer can demonstrate that a
transaction in a sample period is not representative of the
taxpayer's business operations, the transaction shall be
eliminated from the sample and be separately assessed in the audit.
If records are inadequate to reflect accurately the business
operations of the taxpayer, the comptroller or his designee shall
determine the best information available and base his audit report
on that information.
(e) If the taxpayer demonstrates that any sampling method
used by the comptroller was not in accordance with generally
recognized sampling techniques, the audit will be dismissed as to
that portion of the audit established by projection based upon the
sampling method, and a new audit may be performed.
Acts 1981, 67th Leg., p. 1496, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1983, 68th Leg., p. 982, ch. 234, § 1, eff. May
25, 1983.
§ 111.0043. GENERAL AUDIT AND PREHEARING
POWERS. (a) In this section:
(1) "Person" includes an individual, corporation,
partner, partnership, officer, or director of a corporation, joint
venture, trust, trustee, agent, or association.
(2) "Taxpayer" means the person whose tax obligation
the comptroller is seeking to determine.
(b)(1) Before a determination of or a hearing on a taxpayer's
tax obligation, if any, the comptroller may issue a subpoena
addressed to the sheriff or constable of any county in this state to
require any person who the comptroller determines may provide
assistance in the examination of a taxpayer's tax obligation to
appear at the place and time stated in the subpoena for the taking
of his oral deposition before an official authorized to take
depositions. The subpoena may require the person to produce at the
time of the deposition books, documents, records, papers, accounts,
and other objects as may be specified by the comptroller. The
subpoena must include a statement setting out the reason why the
requested material is needed.
(2) The deposition shall be taken in the county of the
person's residence or in the county where the person is employed or
regularly transacts business. The subpoena shall specify that the
person shall remain in attendance from day to day until the
deposition is begun and completed.
(3) The officer taking the oral deposition may not
sustain objections to any of the testimony taken or exclude any of
it.
(4) When the testimony is fully transcribed, the
deposition shall be submitted to the person for examination and
read to or by the person, unless the examination and reading are
waived in writing by the person and by the comptroller. However, if
the person is represented by an attorney of record, the deposition
officer shall notify the attorney of record in writing by
registered mail or certified mail that the deposition is ready for
examination and reading at the office of the deposition officer. If
the person does not appear and examine, read, and sign the
deposition within 10 days after the mailing of the notice, the
deposition shall be returned and may be used as fully as though
signed. The officer shall enter on the deposition any changes in
form or substance that the person desires to make and a statement of
the reasons given by the person for making them. The deposition
shall then be signed by the person, unless the person and the
comptroller by stipulation waive the signing or the person is ill,
cannot be found, or refuses to sign. If the deposition is not
signed by the person, the officer shall sign it and state on the
record the fact of the waiver, illness, or absence of the person or
the fact of the refusal to sign, together with the reason, if any,
given for failure to sign. The deposition may then be used as fully
as though signed.
(5) The deposition shall be returned to the
comptroller by the official taking the deposition either by mail or
by delivering it in person.
(c) Before a determination of or a hearing on a taxpayer's
tax obligation, if any, the comptroller may:
(1) issue a subpoena addressed to the sheriff or
constable of any county in this state to require any person to
produce at the place and time stated in the subpoena books,
documents, records, papers, accounts, and other objects that the
comptroller determines may assist in an examination of a person's
tax obligation;
(2) issue an order to a person to permit entry upon
designated land or other property in his possession or control for
the purpose of inspecting, measuring, surveying, or photographing
the property or any designated object or operation on the property
that may be material to any matter involved in the examination; the
order must specify the time, place, and manner of making the
inspection, measurement, or survey and taking the copies and
photographs and may prescribe any terms and conditions that are
just;
(3) copy or conduct a complete examination of books,
documents, records, papers, accounts, and other objects that are
produced as a result of the subpoenas or orders specified in this
section; and
(4) serve or have served by his designated agent any
subpoena or order issued under this section by delivering a copy of
the subpoena to the person.
(d) A person, other than the taxpayer, who is subpoenaed to
give a deposition or to produce books, records, papers, or other
objects under the authority of this section is entitled to receive
after presentation of a voucher sworn by the person and approved by
the comptroller:
(1) mileage of 20 cents a mile, or a greater amount as
prescribed by agency rule, for going to and returning from the place
of the hearing or the place where the deposition is taken, if the
place is more than 25 miles from the person's place of residence;
and
(2) a fee of $20 a day, or a greater amount as
prescribed by agency rule, for each day or part of a day the person
is necessarily present as a deponent.
(e) If a person fails to comply with a subpoena or order
issued under this section, the comptroller may:
(1) acting through the attorney general, bring suit to
enforce the subpoena or order in a district court of Travis County;
the court, if it determines that good cause exists for the issuance
of a subpoena or order, shall order the compliance with the
requirements of the subpoena or order; failure to obey the order of
the court may be punishable by the court as contempt;
(2) use records, books, papers, and other documents
obtained or depositions taken under this section only in an
administrative hearing of the comptroller or a judicial proceeding
brought by or against the comptroller; the information may be made
available to the federal government or to another state under an
exchange agreement; and
(3) delegate his authority to issue subpoenas or
orders and to participate in the taking of depositions as specified
in this section to any attorney employed by him.
(f) If a foreign corporation doing business in this state
has such contact with this state that it becomes subject to the
taxes administered and collected by the comptroller and fails to
appoint or maintain a registered agent in this state, or if the
registered agent cannot with reasonable diligence be found at the
registered office, then the secretary of state shall be an agent of
the corporation and may be served with any subpoena or other order
issued under this section in the manner provided for service of
process in Article 8.10, Texas Business Corporation Act, as
amended.
(g) Any person, including the taxpayer, shall be entitled to
obtain upon request a copy of any statement he has previously made
concerning the examination or its subject matter and which is in the
possession, custody, or control of the comptroller. Copies of
statements made to the comptroller by any person which are used as a
basis for an assessment against a taxpayer may be obtained by the
taxpayer upon request. If the request is refused, the person may
move for an agency order under this subsection. For the purpose of
this section, a statement previously made is:
(1) a written statement signed or otherwise adopted or
approved by the person making it; or
(2) a stenographic, mechanical, electrical, or other
recording, or a transcription thereof, which is a substantially
verbatim recital of an oral statement by the person making it and
contemporaneously recorded.
Acts 1981, 67th Leg., p. 1497, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.0044. SPECIAL PROCEDURES FOR THIRD-PARTY ORDERS
AND SUBPOENAS. (a)(1) If any order or subpoena described in
Section 111.0043 of this code is served on any person who is a
third-party recordkeeper, and the order or subpoena requires the
production of any portion of records made or kept of the business
transactions or affairs of any person (other than the person
ordered or subpoenaed) who is identified in the description of the
record contained in the order or subpoena, then notice of the order
or subpoena shall be given to any person so identified within three
days of the day on which the service on the third-party recordkeeper
is made but no later than the 14th day before the day fixed in the
order or subpoena as the day upon which the records are to be
examined. The notice shall be accompanied by a copy of the order or
subpoena which has been served and shall contain directions for
staying compliance with the order or subpoena under Subsection
(b)(2) of this section.
(2) The notice shall be sufficient if, on or before the
third day, the notice is delivered in hand to the person entitled to
notice or is mailed by certified or registered mail to the last
mailing address of the person or, in the absence of a last known
address, is left with the person ordered or subpoenaed. If the
notice is mailed, it shall be sufficient if mailed to the last known
address of the person entitled to notice.
(3) For purposes of this section, the term
"third-party recordkeeper" means:
(A) a mutual savings bank, cooperative bank,
domestic building and loan association, or other savings
institution chartered and supervised as a savings and loan or
similar association under federal or state law, a bank as defined in
Section 581 of the Internal Revenue Code of 1954, as amended (26
U.S.C. 581), or any credit union within the meaning of Section
501(c)(14)(A), Internal Revenue Code;
(B) any consumer reporting agency as defined
under Section 603(f) of the Fair Credit Reporting Act (15 U.S.C.
1681a(f));
(C) any person extending credit through the use
of credit cards or similar devices; and
(D) any broker as defined in Section 3(a)(4) of
the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(4)).
(4) Subsection (a)(1) of this section may not apply to
an order or subpoena served on the person with respect to whose
liability the order or subpoena is issued or an officer or employee
of the person; or any order or subpoena to determine whether or not
records of the business transactions or affairs of an identified
person have been made or kept; or any order or subpoena described
in Subsection (e) of this section.
(5) An order or subpoena to which this subsection
applies shall identify the taxpayer to whom the order or subpoena
relates and to whom the records pertain and shall provide other
information to enable the person ordered or subpoenaed to locate
the records required under the order or subpoena.
(b)(1) Notwithstanding any other law or rule of law, a person
who is entitled to notice of an order or subpoena under Subsection
(a) of this section shall have the right to intervene in any
proceeding with respect to the enforcement of the order or subpoena
under Subsection (e) of Section 111.0043 of this code.
(2) Notwithstanding any other law or rule of law, a
person who is entitled to notice of an order or subpoena under
Subsection (a) of this section shall have the right to stay
compliance with the order or subpoena if, not later than the 14th
day after the day the notice is given in the manner provided in
Subsection (a)(2) of this section:
(A) notice in writing is given to the person
ordered or subpoenaed not to comply with the order or subpoena;
(B) a copy of the notice not to comply with the
order or subpoena is mailed by registered or certified mail to the
person and to the office the comptroller directs in the notice
referred to in Subsection (a)(1) of this section; and
(C) suit is filed against the comptroller in a
district court of Travis County to stay compliance with the order or
subpoena.
(c) No examination of any records required to be produced
under an order or subpoena as to which notice is required under
Subsection (a) of this section may be made:
(1) before the expiration of the 14-day period allowed
for the notice not to comply under Subsection (b)(2) of this
section; or
(2) when the requirements of Subsection (b)(2) of this
section have been met, except in accordance with an order issued by
a district court of Travis County authorizing examination of the
records or with the consent of the person staying compliance.
(d) If any person takes any action as provided in Subsection
(b) of this section and such person is the person with respect to
whose liability the order or subpoena is issued under Section
111.0043 of this code (or is the agent, nominee, or other person
acting under the direction or control of such person), then the
running of any period of limitations under Subchapter D of this
chapter with respect to the person shall be suspended for the
period during which a proceeding and appeals of the proceeding with
respect to the enforcement of such order are pending.
(e) Any order or subpoena issued under Section 111.0043 of
this code that does not identify the person with respect to whose
liability the order is issued may be served only after a court
proceeding in which the comptroller establishes that:
(1) the order relates to the investigation of a
particular person or ascertainable group or class of persons;
(2) there is a reasonable basis for believing that the
person or group or class of persons may fail or may have failed to
comply with any provision of state law; and
(3) the information sought to be obtained from the
examination of the records (and the identity of the person or
persons with respect to whose liability the order is issued) is not
readily available from other sources.
(f) In the case of an order or subpoena issued under Section
111.0043 of this code, the provisions of Subsections (a)(1) and (b)
of this section may not apply if, upon petition by the comptroller,
the court determines, on the basis of the facts and circumstances
alleged, that there is reasonable cause to believe the giving of
notice may lead to attempts to conceal, destroy, or alter records
relevant to the examination, to prevent the communication of
information from other persons through intimidation, bribery, or
collusion, or to flee to avoid prosecution, testifying, or
production of records.
(g)(1) A district court of Travis County has jurisdiction to
hear and determine proceedings brought under Subsection (e) or (f)
of this section. The determinations required to be made under
Subsections (e) and (f) of this section shall be ex parte and shall
be made solely upon the petition and supporting affidavits. An
order denying the petition shall be deemed a final order that may be
appealed.
(2) Except for cases the court considers of greater
importance, a proceeding brought for the enforcement of any order,
or a proceeding under this section, and appeals, take precedence on
the docket over all cases and shall be assigned for hearing and
decided at the earliest practicable date.
(h) The comptroller shall by rule establish the rates and
conditions for payments to reimburse reasonably necessary costs
directly incurred by third-party recordkeepers in searching for,
reproducing, or transporting books, papers, records, or other data
required to be produced by order or subpoena upon request of the
comptroller. The reimbursement shall be in addition to mileage and
fees paid under Subsections (d)(1) and (d)(2) of Section 111.0043
of this code.
Acts 1981, 67th Leg., p. 1499, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.0045. USE OF OUTSIDE PERSONNEL; DELEGATION OF
POWERS. (a) As necessary to enhance productivity, the
comptroller may employ or contract for the services of accountants,
assistants, auditors, clerks, information technology specialists,
and investigators to:
(1) provide or use the equipment acquired under
Subchapter G; and
(2) assist with the administration of this code.
(b) The comptroller may delegate to persons employed or
contracted under this section the power to perform duties as
required.
Added by Acts 2001, 77th Leg., ch. 1272, § 5.03, eff. June 15,
2001.
§ 111.0046. PERMIT OR LICENSE. (a) The comptroller
shall refuse to issue or renew any permit or license to a person
who:
(1) is not permitted or licensed as required by law for
a different tax or activity administered by the comptroller, except
if the issuance or renewal of such license or permit is pending
before the comptroller; or
(2) is currently delinquent in the payment of any tax
collected by the comptroller.
(b) The comptroller by rule may establish a minimum age for
a person to be eligible to apply for a permit or license issued by
the comptroller.
Added by Acts 1985, 69th Leg., ch. 59, § 1, eff. April 30, 1985.
Amended by Acts 2003, 78th Leg., ch. 209, § 13, eff. Oct. 1,
2003.
§ 111.0047. SUSPENSION AND REVOCATION OF PERMIT OR
LICENSE. (a) If a person fails to comply with any provision of
this title or with a rule of the comptroller adopted under this
title, the comptroller, after a hearing, may revoke or suspend any
permit or license issued to the person.
(b) A person whose permit or license the comptroller
proposes to revoke or suspend under this section is entitled to 20
days' written notice of the time and place of the hearing on the
revocation or suspension. At the hearing the person must show cause
why each permit or license should not be suspended or revoked.
(c) The comptroller shall give written notice of the
revocation or suspension of a permit or license to the holder of the
permit or license.
(d) Notices under this section may be served on the holder
of the permit or license personally or may be mailed to the holder's
address as shown in the records of the comptroller.
Added by Acts 1985, 69th Leg., ch. 59, § 1, eff. April 30, 1985.
Amended by Acts 1989, 71st Leg., ch. 238, § 42, eff. Jan. 1,
1990; Acts 1991, 72nd Leg., 1st C.S., ch. 6, § 7; Acts 1993,
73rd Leg., ch. 107, § 4.08, eff. Aug. 30, 1993; Acts 1993, 73rd
Leg., ch. 284, § 32, eff. Sept. 1, 1993; Acts 1997, 75th Leg.,
ch. 1040, § 2, eff. Sept. 1, 1997.
§ 111.0048. REISSUED OR NEW PERMIT OR LICENSE AFTER
REVOCATION OR SUSPENSION. (a) A new permit or license may not be
issued to a former holder of a revoked permit or license unless the
comptroller is satisfied that the person will comply with the
provisions of this title and the rules of the comptroller relating
to this title.
(b) The comptroller may prescribe the terms under which a
suspended permit or license may be reissued.
Added by Acts 1985, 69th Leg., ch. 59, § 1, eff. April 30, 1985.
Amended by Acts 1989, 71st Leg., ch. 238, § 43, eff. Jan. 1,
1990; Acts 1991, 72nd Leg., 1st C.S., ch. 6, § 8; Acts 1993,
73rd Leg., ch. 107, § 4.09, eff. Aug. 30, 1993; Acts 1993, 73rd
Leg., ch. 284, § 33, eff. Sept. 1, 1993; Acts 1997, 75th Leg.,
ch. 1040, § 3, eff. Sept. 1, 1997.
§ 111.0049. APPEALS. A taxpayer may appeal the
revocation or suspension of a permit or license under Section
111.0046 and 111.0047 of this code in the same manner that appeals
are made from a final deficiency determination.
Added by Acts 1985, 69th Leg., ch. 59, § 1, eff. April 30, 1985.
§ 111.005. GOVERNMENTAL ENTITIES TO COOPERATE. Each
department, officer, and employee of the state or of a local
governmental entity shall cooperate with and give reasonable
assistance and information to the comptroller when performing
authorized duties.
Acts 1981, 67th Leg., p. 1502, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.006. CONFIDENTIALITY OF INFORMATION. (a) The
following matter is confidential and may not be used publicly,
opened to public inspection, or disclosed except as permitted by
this section:
(1) a federal tax return or federal tax return
information required to have been submitted to the comptroller with
a state tax return or report; and
(2) all information secured, derived, or obtained by
the comptroller or the attorney general during the course of an
examination of the taxpayer's books, records, papers, officers, or
employees, including an examination of the business affairs,
operations, source of income, profits, losses, or expenditures of
the taxpayer.
(b) All information made confidential in this title may not
be subject to subpoena directed to the comptroller or the attorney
general except in a judicial or an administrative proceeding in
which this state, another state, or the federal government is a
party.
(c) The comptroller or the attorney general may use
information or records made confidential by provisions of this
title to enforce any provisions of this title or may authorize their
use in a judicial or an administrative proceeding in which this
state, another state, or the federal government is a party.
(d) The comptroller or the attorney general may disclose to
a municipality or county the information described by Subsection
(a)(2) if:
(1) the information was derived from an examination
performed for the purpose of ascertaining compliance with the hotel
occupancy tax imposed under Chapter 156;
(2) the municipality or county makes a written request
for the information;
(3) the municipality or county making the request has
imposed a local hotel occupancy tax authorized by Chapter 351 or
352, as applicable;
(4) the municipality or county uses the information
only for the enforcement or administration of its local hotel
occupancy tax; and
(5) to the extent consistent with the use authorized
by Subdivision (4), the municipality or county keeps the
information confidential as provided by this section.
(e) Information made confidential in this title may be
examined by a state officer, a law enforcement officer of this
state, a tax official of another state, a tax official of the United
Mexican States, an official of the United States, or an authorized
representative of any of these officers or officials, if:
(1) the comptroller authorizes the examination; and
(2) for an official or officer of another state, the
United States, or the United Mexican States, a reciprocal agreement
exists allowing the comptroller to examine tax information under
the control of the officer or official in a manner substantially
equivalent to the officer's or official's access to information
under this subsection.
(f) Subsection (a)(2) does not apply to information
obtained by the comptroller or the attorney general during an
examination of a governmental body, as that term is defined in
Section 552.003, Government Code. However, information obtained by
the comptroller or the attorney general during an examination of
the governmental body that is confidential under law when in the
possession of the governmental body remains confidential while in
the possession of the comptroller or the attorney general.
(g) Information made confidential by Subsection (a)(2) that
relates to a taxpayer's responsibilities under Chapter 153 may be
examined by an official of another state or of the United States if:
(1) the official has information that would assist the
comptroller in administering Chapter 153;
(2) the comptroller is conducting or may conduct an
examination or a criminal investigation of the taxpayer that is the
subject of the information made confidential by Subsection (a)(2);
and
(3) a reciprocal agreement exists allowing the
comptroller to examine information under the control of the
official in a manner substantially equivalent to the official's
access to information under this subsection.
Acts 1981, 67th Leg., p. 1502, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1995, 74th Leg., ch. 175, § 1, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 351, § 4, eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 165, § 29.10, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1040, § 4, eff. Sept. 1, 1997; Acts 1999,
76th Leg., ch. 1218, § 2, eff. Sept. 1, 1999.
§ 111.007. CRIMINAL PENALTIES FOR DISCLOSING FEDERAL TAX
INFORMATION. (a) The comptroller, a person who formerly held the
office of comptroller, or an employee or former employee of the
comptroller commits an offense if he discloses in a manner
unauthorized by law a federal tax return or federal tax return
information that is required to be submitted to the comptroller by
any person.
(b) An offense under this section is a misdemeanor
punishable by a fine of not more than $1,000 or by confinement in
jail for not more than one year, or by both a fine and confinement.
Acts 1981, 67th Leg., p. 1502, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.008. DEFICIENCY DETERMINATION. (a) If the
comptroller is not satisfied with a tax report or the amount of the
tax required to be paid to the state by a person, the comptroller
may compute and determine the amount of tax to be paid from
information contained in the report or from any other information
available to the comptroller.
(b) On making a determination under this section, the
comptroller shall notify the person against whom a determination is
made of the determination. The notice may be given by mail or by
personal service.
(c) If the notice is given by mail, it shall be addressed to
the taxpayer or other person at the taxpayer's address as it appears
in the records of the comptroller. Service by mail is complete when
the notice is deposited in a U.S. Post Office.
Acts 1981, 67th Leg., p. 1502, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.0081. WHEN PAYMENT IS REQUIRED. (a) Except as
provided in Subsections (b) and (c) of this section, the amount of a
determination made under this code is due and payable 10 days after
it becomes final. If the amount of the determination is not paid
within 10 days after the day it became final, a penalty of 10
percent of the amount of the determination, exclusive of penalties
and interest, shall be added.
(b) This section does not apply to a determination under
Section 111.022.
(c) The amount of a determination made under this code is
due and payable 20 days after a comptroller's decision in a
redetermination hearing becomes final. If the amount of the
determination is not paid within 20 days after the day the decision
became final, a penalty of 10 percent of the amount of the
determination, exclusive of penalties and interest, shall be added.
Added by Acts 1985, 69th Leg., ch. 37, § 9, eff. Aug. 26, 1985.
Amended by Acts 2001, 77th Leg., ch. 1263, § 8, eff. Sept. 1,
2001.
§ 111.009. REDETERMINATION. (a) A person having a
direct interest in a determination may petition the comptroller for
a redetermination.
(b) A petition for redetermination must be filed before the
expiration of 30 days after the date on which the service of the
notice of determination is completed or the redetermination is
barred. If a petition for redetermination is not filed before the
expiration of the period provided by this subsection, the
determination is final on the expiration of the period.
(c) If the petition requests a hearing on the
redetermination, the person filing the petition is entitled to a
hearing and to receive notice of the hearing at least 20 days before
the day of the hearing.
(d) An order or decision of the comptroller on a petition
for redetermination becomes final 20 days after service on the
petitioner of the notice of the order or decision.
Acts 1981, 67th Leg., p. 1503, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 705, § 2, eff. Sept. 1,
1991.
§ 111.010. SUIT TO RECOVER TAXES. (a) The attorney
general shall bring suit in the name of the state to recover
delinquent state taxes, tax penalties, and interest owed to the
state.
(b) This section applies to state taxes imposed by this
title or by other laws not included in this title but does not apply
to the state ad valorem tax on property.
(c) Venue for and jurisdiction of a suit arising under this
section is exclusively conferred upon the district courts of Travis
County.
(d) The state is entitled to interest at the rate of 10
percent a year on the amount of a judgment for the state beginning
on the day the judgment is signed and ending on the day the judgment
is satisfied.
Acts 1981, 67th Leg., p. 1503, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1983, 68th Leg., p. 519, ch. 107, § 2, eff. Sept.
1, 1983; Acts 1991, 72nd Leg., ch. 705, § 3, eff. Sept. 1, 1991;
Acts 1995, 74th Leg., ch. 1000, § 1, eff. Oct.. 1, 1995.
§ 111.011. TAX COLLECTIONS AND REPORTS BY BUSINESSES;
ENFORCEMENT OF DUTIES. (a) If a person engaged in a business the
operation of which involves the receipt, collection, or withholding
of a tax imposed by this title fails to file a report or pay the tax
as required by this title, the attorney general may bring suit for
an injunction prohibiting the person from continuing in that
business until the report is filed and the tax is paid.
(b) If a person engaged in business the operation of which
involves the receipt, collection, or withholding of a tax imposed
by this title receives, collects, or withholds more tax than is
authorized by law to be received, collected, or withheld or if the
person receives, collects, or withholds money from any other person
under a claim or representation that the receipt, collection, or
withholding is a tax imposed by this title or other law and the
amount received, collected, or withheld is not a tax authorized by
law, and the person does not voluntarily comply with the notice set
forth in Subsection (c) herein, the attorney general shall bring
suit for an injunction prohibiting the person from the wrongful
receipt, collection, or withholding of the tax or alleged tax.
(c) Prior to filing suit for an injunction, the attorney
general shall send written notice by certified mail requesting that
the person shall cease any wrongful collections of taxes allowing
15 days for compliance from the date of notice.
(d) The venue for a suit under this section is in Travis
County.
Acts 1981, 67th Leg., p. 1503, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 177, § 1, eff. Sept. 1,
1985.
§ 111.012. SECURITY FOR THE PAYMENT OF TAXES. (a) If
the comptroller finds that a tax imposed by this title is insecure,
the comptroller may require a taxpayer to:
(1) provide security for the payment of taxes; or
(2) establish a tax escrow account at a bank or other
financial institution.
(b) The security may consist of:
(1) a cash deposit filed with the comptroller;
(2) a surety bond; or
(3) other security as permitted by the comptroller.
(c) The amount and form of the security shall be set by the
comptroller, except that the amount may not be more than double the
amount of taxes that the comptroller estimates will be due from the
taxpayer during the succeeding 12 months.
(d) The comptroller shall give notice to a taxpayer from
whom security or the establishment of a tax escrow account is
required under this section.
(e) The tax escrow account must be established not later
than the 10th day after the date notice is received from the
comptroller requiring the establishment of the account.
(f) Before the comptroller requires a taxpayer to establish
a tax escrow account, the comptroller must determine that:
(1) the taxpayer remitted or should have remitted a
monthly average of $500 or more in tax collected from customers for
the six-month period preceding the date that the notice requiring
the establishment of a tax escrow account is sent by the comptroller
to the taxpayer; and
(2) the taxpayer:
(A) failed to file two or more tax returns during
the 12 months preceding the date that the notice requiring the
establishment of a tax escrow account is sent by the comptroller to
the taxpayer;
(B) has been issued a jeopardy determination
under Section 111.022;
(C) has previously been determined to have
collected tax but not remitted that tax under an administrative
hearings decision issued by the comptroller;
(D) is insolvent because the taxpayer's
liabilities exceed the taxpayer's assets or the taxpayer is unable
to pay the taxpayer's debts as they become due;
(E) has assets that are subject to a court
administered receivership; or
(F) has been notified that security is required
under this section but has failed to provide evidence of the
security on or before the 30th day after the date the security was
requested.
(g) If a taxpayer does not furnish security to the
comptroller or establish a tax escrow account as required by the
comptroller before the expiration of 10 days following the day on
which notice is received, the comptroller may:
(1) bring suit in a district court in Travis County for
an order enjoining the taxpayer from engaging in business until the
security is furnished or the tax escrow account is established; or
(2) pursue any other remedies or collection actions
available to the comptroller under this chapter or Chapter 113 to
ensure the security is furnished or the tax escrow account is
established.
Acts 1981, 67th Leg., p. 1503, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 483, § 1, eff. Sept. 1,
1991; Acts 2003, 78th Leg., ch. 209, § 14, eff. Oct. 1, 2003.
§ 111.013. EVIDENCE: TAX CLAIMS. (a) In a suit
involving the establishment or collection of a tax imposed under
Title 2 or 3 of this code, a certificate of the comptroller that
shows a delinquency is prima facie evidence of:
(1) the stated tax or amount of the tax, after all just
and lawful offsets, payments, and credits have been allowed;
(2) the stated amount of penalties and interest;
(3) the delinquency of the amounts; and
(4) the compliance of the comptroller with the
applicable provisions of this code in computing and determining the
amount due.
(b) The defendant may not deny a claim for taxes, penalties,
or interest unless the defendant timely files a sworn written
denial that specifically identifies the taxes, penalties, and
interest the defendant asserts are not due and the amounts of tax,
penalties, and interest that are not due.
Acts 1981, 67th Leg., p. 1504, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 705, § 4, eff. Sept. 1,
1991.
§ 111.014. EVIDENCE: COPIES OF GRAPHIC MATTER. (a) A
copy of graphic matter is admissible, without further proof, in a
judicial or administrative proceeding concerning the
administration or enforcement of a tax imposed by this title if:
(1) the copy or information contained in the copy is
relevant;
(2) the copy is a reproduction made by a photographic,
photostatic, magnetic, or other process that accurately duplicates
or forms a durable medium for accurately reproducing the original
matter or information contained in the original matter; and
(3) the graphic matter was kept or recorded by the
comptroller in the performance of official functions.
(b) "Graphic matter" means a memorandum, entry, report, or
other document, a record of information contained in a memorandum,
entry, report, or other document, or a record of an action taken by
the comptroller.
(c) The admissibility of a copy of graphic matter as allowed
under this section does not affect the admissibility of the
original matter or other competent evidence offered to show the
incorrectness of the copy or of information reflected in the copy.
Acts 1981, 67th Leg., p. 1504, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.015. REMEDIES CUMULATIVE. The rights, powers,
remedies, liens, and penalties provided by this title are
cumulative of other rights, powers, remedies, liens, and penalties
for the collection of taxes provided by this title and by other law.
Acts 1981, 67th Leg., p. 1504, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.016. PAYMENT TO THE STATE OF TAX
COLLECTIONS. (a) Any person who receives or collects a tax or any
money represented to be a tax from another person holds the amount
so collected in trust for the benefit of the state and is liable to
the state for the full amount collected plus any accrued penalties
and interest on the amount collected.
(b) With respect to tax or other money subject to the
provisions of Subsection (a), an individual who controls or
supervises the collection of tax or money from another person, or an
individual who controls or supervises the accounting for and paying
over of the tax or money, and who wilfully fails to pay or cause to
be paid the tax or money is liable as a responsible individual for
an amount equal to the tax or money not paid or caused to be paid.
The liability imposed by this subsection is in addition to any other
penalty provided by law. The dissolution of a corporation,
association, limited liability company, or partnership does not
affect a responsible individual's liability under this subsection.
(c) The district courts of Travis County have exclusive,
original jurisdiction of a suit arising under this section.
(d) In this section:
(1) "Responsible individual" includes an officer,
manager, director, or employee of a corporation, association, or
limited liability company or a member of a partnership who, as an
officer, manager, director, employee, or member, is under a duty to
perform an act with respect to the collection, accounting, or
payment of a tax or money subject to the provisions of Subsection
(a).
(2) "Tax" includes any tax or money subject to the
provisions of Subsection (a), including the penalty and interest
computed by reference to the amount of the tax or money.
Acts 1981, 67th Leg., p. 1504, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1987, 70th Leg., 2nd C.S., ch. 1, § 1, eff. July
21, 1987; Acts 1995, 74th Leg., ch. 87, § 1, eff. Sept. 1, 1995.
§ 111.017. SEIZURE AND SALE OF PROPERTY. Before the
expiration of three years after a person becomes delinquent in the
payment of any amount under this title, the comptroller may seize
and sell at public auction real and personal property of the person.
A seizure made to collect the tax is limited only to property of the
person that is not exempt from execution. Service or delivery of a
notice of seizure under this section affecting property held by a
financial institution in the name of or on behalf of a delinquent
who is a customer of the financial institution is governed by
Section 59.008, Finance Code.
Added by Acts 1987, 70th Leg., 2nd C.S., ch. 1, § 2, eff. July 21,
1987. Amended by Acts 1999, 76th Leg., ch. 344, § 7.008, eff.
Sept. 1, 1999.
§ 111.018. NOTICE OF SALE OF SEIZED PROPERTY. (a) The
delinquent person whose property is seized under Section 111.017 of
this code is entitled to written notice of the sale of the property
at least 20 days before the date of the sale.
(b) The notice must:
(1) contain a description of the property to be sold, a
statement of the amount of the tax, penalties, interest, and costs
due, the name of the delinquent person, and a statement that unless
the amount due, including costs, is paid before the time of the sale
as stated in the notice the described property, or as much of it as
necessary, will be sold;
(2) be enclosed in an envelope that is addressed to the
delinquent person at the person's last known address or place of
business;
(3) be deposited in the United States mail, postage
prepaid; and
(4) be published for at least 10 days before the date
set for the sale in a newspaper of general circulation published in
the county in which the seized property is to be sold, or, if there
is no newspaper of general circulation in that county, the notice
must be posted in three public places in that county for 20 days
before the date set for the sale.
(c) Publication in a newspaper of a notice of sale of seized
property under Subsection (b)(4) is not required if the estimated
value of the property to be sold is less than $40,000. The
comptroller may notify potential buyers of seized property the
value of which is estimated to be less than $40,000 by any means
reasonable and cost-effective to the state under the circumstances.
Added by Acts 1987, 70th Leg., 2nd C.S., ch. 1, § 3, eff. July 21,
1987. Amended by Acts 1997, 75th Leg., ch. 1040, § 5, eff. Sept.
1, 1997.
§ 111.019. SALE OF SEIZED PROPERTY; DISPOSITION OF
PROCEEDS. (a) The comptroller may sell at public auction, as
provided in the notice, property seized under Section 111.017 of
this code and may deliver to the purchaser a bill of sale for
personal property sold and a deed for real property sold. A bill of
sale or a deed vests in the purchaser the interest or title in the
property held by the person liable for the amount.
(b) The comptroller may leave unsold property at the place
of the sale at the risk of the person liable for the amount.
(c) The amount by which the proceeds from the sale exceed
the amount of taxes, penalties, interest, and costs shall be
disposed of by the comptroller as follows:
(1) if before the sale of the property a person who is
not the person liable for the amount and who has an interest in or
lien on the property files notice of the interest or lien with the
comptroller, the comptroller shall hold the amount of the excess
pending a determination of the rights of respective parties in the
amount of the excess by a court;
(2) if no notice is given under Subdivision (1) of this
subsection and the person liable for the amount gives a receipt for
the amount of the excess, the comptroller shall return the amount of
the excess to the person; or
(3) if no notice is given under Subdivision (1) of this
subsection and the comptroller is unable to obtain a receipt under
Subdivision (2) of this subsection, the comptroller shall hold the
amount as trustee for the owner subject to the order of the person
liable for the amount or a successor of the person.
Added by Acts 1987, 70th Leg., 2nd C.S., ch. 1, § 4, eff. July 21,
1987. Amended by Acts 1997, 75th Leg., ch. 1423, § 19.03, eff.
Sept. 1, 1997.
§ 111.020. TAX COLLECTION ON TERMINATION OF
BUSINESS. (a) If a person who is liable for the payment of an
amount under this title sells the business or the stock of goods of
the business or quits the business, the successor to the seller or
the seller's assignee shall withhold an amount of the purchase
price sufficient to pay the amount due until the seller provides a
receipt from the comptroller showing that the amount has been paid
or a certificate stating that no amount is due.
(b) The purchaser of a business or stock of goods who fails
to withhold an amount of the purchase price as required by this
section is liable for the amount required to be withheld to the
extent of the value of the purchase price.
(c) The purchaser of a business may request that the
comptroller issue a certificate stating that no tax is due or issue
a statement of the amount required to be paid before a certificate
may be issued. The comptroller shall issue the certificate or
statement within 60 days after receiving the request or within 60
days after the day on which the records of the former owner of the
business are made available for audit, whichever period expires
later, but in either event the comptroller shall issue the
certificate or statement within 90 days after the date of receiving
the request.
(d) If the comptroller fails to mail the certificate or
statement within the applicable period provided by Subsection (c)
of this section, the purchaser is released from the obligation to
withhold the purchase price or pay the amount due.
(e) A period of limitation during which the obligation of a
purchaser under this section may be enforced begins when the former
owner of the business sells the business or stock of goods or when a
determination is made against the former owner, whichever event
occurs later.
(f) Compliance with Subsection (a) is not a defense to an
assessment of tax liability under Section 111.024 if:
(1) the amount withheld from the purchase price is not
sufficient to fully satisfy the liability of the seller of the
business or stock of goods; and
(2) the purchase price paid to the seller for the
business or stock of goods is not reasonably equivalent to the value
of the business or stock of goods.
Added by Acts 1987, 70th Leg., 2nd C.S., ch. 1, § 5, eff. July 21,
1987. Amended by Acts 2001, 77th Leg., ch. 442, § 3, eff. Sept.
1, 2001.
§ 111.021. NOTICE TO HOLDERS OF AND LEVY UPON ASSETS
BELONGING TO DELINQUENT. (a) If a person is delinquent in the
payment of an amount required to be paid or has not paid an amount
claimed in a determination made against the person, the comptroller
may notify personally, by mail, or by means of facsimile or
electronic transmission any other person who:
(1) possesses or controls a credit, bank or savings
account, deposit, or other intangible or personal property
belonging to the delinquent or the person against whom the unpaid
determination is made, hereafter referred to as "assets"; or
(2) owes a debt to the delinquent or person against
whom the unpaid determination is made.
(b) A notice under this section to a state officer,
department, or agency must be given before the officer, department,
or agency presents to the comptroller the claim of the delinquent or
person to whom the unpaid determination applies.
(c) A notice under this section may be given at any time
within three years after the payment becomes delinquent or within
three years after the last recording of a lien filed under this
title, but not thereafter. The notice must state the amount of
taxes, penalties and interest due and owing, and an additional
amount of penalties and interest that will accrue by operation of
law in a period not to exceed 30 days and, in the case of a credit,
bank or savings account or deposit, is effective only up to that
amount.
(d) On receipt of a notice given under this section, the
person receiving the notice:
(1) within 20 days after receiving the notice shall
advise the comptroller of each such asset belonging to the
delinquent or person to whom an unpaid determination applies that
is possessed or controlled by the person receiving the notice and of
each debt owed by the person receiving the notice to the delinquent
person or person to whom an unpaid determination applies; and
(2) may not transfer or dispose of the asset or debt
possessed, controlled, or owed by the person at the time the person
received the notice for a period of 60 days after receipt of the
notice, unless the comptroller consents to an earlier disposal.
(e) A notice under this section that attempts to prohibit
the transfer or disposal of an asset possessed or controlled by a
bank or other financial institution is governed by Section 59.008,
Finance Code, and also is effective if it is delivered or mailed to
the principal or any branch office of the bank or other financial
institution including any office of the bank or other financial
institution at which the deposit is carried or the credit or
property is held.
(f) A person who has received a notice under this section
and who violates Subdivision (2) of Subsection (d) of this section
is liable to the state for the amount of indebtedness of the person
with respect to whose obligation the notice was given to the extent
of the value of the asset or debt transferred or disposed of.
(g) At any time during the 60-day period as stated in
Subdivision (2) of Subsection (d) of this section, the comptroller
may levy upon the asset or debt. The levy shall be accomplished by
delivery of a notice of levy, upon receipt of which the person
possessing the asset or debt shall transfer the asset to the
comptroller or pay to the comptroller the amount owed to the
delinquent or to the person against whom the unpaid determination
is made.
(h) A notice delivered under this section is effective:
(1) at the time of delivery against all property,
rights to property, credits, and/or debts involving the delinquent
taxpayer which are not at the time of the notice subject to an
attachment, garnishment, or execution issued through a judicial
process; and
(2) against all property, rights to property, credits
and/or debts involving the delinquent taxpayer that come into the
possession or control of the person served with the notice within
the 60-day period provided by Subdivision (2) of Subsection (d) of
this section.
(i) Any person acting in accordance with the terms of the
notice of freeze or levy issued by the comptroller is discharged
from any obligation or liability to the delinquent taxpayer with
respect to such property or rights to property, credits, and/or
debts of the taxpayer affected by compliance with the notice of
freeze or levy.
(j) For purposes of collecting delinquent taxes imposed
under Chapter 159, the term "asset" includes the contents of a safe
deposit box. The comptroller shall issue regulations specifying
procedures for accomplishing a levy upon the contents of a safe
deposit box, including rules relating to inventory of the box
contents, delivery of the contents, and reimbursement to the
financial institution or other safe deposit box facility for
drilling and other costs.
Added by Acts 1987, 70th Leg., 2nd C.S., ch. 1, § 6, eff. July 21,
1987. Amended by Acts 1993, 73rd Leg., ch. 362, § 1, eff. Sept.
1, 1993; Acts 1993, 73rd Leg., ch. 486, § 1.03, eff. Sept. 1,
1993; Acts 1999, 76th Leg., ch. 344, § 7.009, eff. Sept. 1,
1999; Acts 2001, 77th Leg., ch. 442, § 4, eff. Sept. 1, 2001.
§ 111.022. JEOPARDY DETERMINATION. (a) If the
comptroller believes that the collection of a tax required to be
paid to the state or the amount due for a tax period is jeopardized
by delay, the comptroller shall issue a determination stating the
amount and that the tax collection is in jeopardy. The amount
required to be paid to the state or due for the tax period is due and
payable immediately.
(b) A determination made under this section becomes final on
the expiration of 20 days after the day on which the notice of the
determination was served by personal service or by mail unless a
petition for a redetermination is filed before the determination
becomes final.
(c) If a determination made under this section becomes final
without payment of the amount of the determination being made, the
comptroller shall add to the amount a penalty of 10 percent of the
amount of the tax and interest.
Added by Acts 1987, 70th Leg., 2nd C.S., ch. 1, § 7, eff. July 21,
1987. Amended by Acts 2001, 77th Leg., ch. 442, § 5, eff. Sept.
1, 2001.
§ 111.023. WRITTEN AUTHORIZATION. (a) The comptroller
may require that a report, return, declaration, claim for refund,
or other document that is required or permitted to be filed with the
comptroller and that is submitted by an attorney, accountant, or
other representative of a taxpayer on behalf of the taxpayer be
accompanied by express written authorization of the taxpayer in
whose name or on whose behalf it is purportedly submitted.
(b) An officer, director, or employee of the taxpayer whose
duties include administering the taxpayer's rights and
responsibilities with the comptroller may sign the written
authorization. The authorization must include the title and
telephone number of the officer, director, or employee who signs
the authorization for verification by the comptroller.
(c) The comptroller may impose a requirement of Subsection
(b) on a taxpayer's assignment of a claim for refund.
Added by Acts 1993, 73rd Leg., ch. 587, § 4, eff. Sept. 1, 1993.
Amended by Acts 1999, 76th Leg., ch. 1467, § 2.12, eff. Oct. 1,
1999.
§ 111.024. LIABILITY IN FRAUDULENT TRANSFERS. (a) A
person who acquires a business or the assets of a business from a
taxpayer through a fraudulent transfer or a sham transaction is
liable for any tax, penalty, and interest owed by the taxpayer.
(b) A transfer of a business or the assets of a business is
considered to be a fraudulent transfer or a sham transaction if the
taxpayer made the transfer or undertook the transaction:
(1) with intent to evade, hinder, delay, or prevent
the collection of any tax, penalty, or interest owed under this
title; or
(2) without receiving a reasonably equivalent value in
exchange for the business or business assets subject to the
transfer or transaction.
(c) In determining the intent of the taxpayer under
Subsection (b)(1), consideration may be given, among other factors,
to whether:
(1) the transfer was to a current or former business
insider, associate, or employee of the taxpayer or to a person
related to the taxpayer within the third degree of consanguinity by
blood or marriage;
(2) the transfer was to a third party who subsequently
transferred the business or assets of the business to a current or
former business insider, associate, or employee of the taxpayer or
to a person related to the taxpayer within the third degree of
consanguinity by blood or marriage;
(3) the taxpayer retained possession or control of the
business or the assets of the business after the transfer or
transaction;
(4) the taxpayer's business and the transferee's
business are essentially operated as a single business entity at
the same location;
(5) before the transfer or the transaction occurred,
the taxpayer had either been subjected to or apprised of impending
collection action by the comptroller or by the attorney general;
(6) the transfer or transaction was concealed;
(7) the taxpayer was insolvent at the time of the
transfer or became insolvent not later than the 31st day after the
date the transfer or transaction occurred; or
(8) the transfer or transaction involved all or
substantially all of the taxpayer's assets.
(d) This section does not apply to a transfer of a business
or the assets of a business:
(1) through a court order on dissolution of a
marriage; or
(2) by descent or distribution or testate succession
on the death of a taxpayer.
Added by Acts 2001, 77th Leg., ch. 442, § 6, eff. Sept. 1, 2001.
SUBCHAPTER B. TAX REPORTS AND PAYMENTS
§ 111.051. REPORTS AND PAYMENTS; DUE DATES; METHOD OF
PAYMENT. (a) The comptroller may set the date for filing a report
for and making a payment of a tax imposed by this title.
(b) A date set by the comptroller under this section
prevails over a different date prescribed by this title for the
filing of a report for or the payment of a tax, except that the
comptroller may only set a report or payment date for the state
sales and use tax that conflicts with the dates prescribed by
Chapter 151 of this code in case of public calamity or natural
disaster.
(c) The comptroller may require that all payments from a
taxpayer who files tax reports monthly and remits three or more
dishonored or insufficient funds checks or drafts within a
six-month period be remitted using certified instruments. The
comptroller may require that all payments from a taxpayer who files
tax reports quarterly and remits three or more dishonored or
insufficient funds checks or drafts within an 18-month period be
remitted by using certified instruments. In this subsection,
"certified instruments" includes cashier's checks and money
orders. The comptroller shall send written notice of a payment
restriction under this subsection to the taxpayer at the business
address shown on the comptroller's records. A failure to remit a
payment by a certified instrument after imposition of the payment
restriction by the comptroller is grounds for the suspension and
revocation of a permit or license as provided by Section 111.0047 of
this code.
Acts 1981, 67th Leg., p. 1504, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 799, § 1, eff. Aug. 26,
1985; Acts 1993, 73rd Leg., ch. 486, § 1.04, eff. Sept. 1, 1993.
§ 111.052. FORM OF REPORT. (a) The comptroller may
revise the form of a report required under this title to eliminate
specific information that may be required by any other provision of
this title.
(b) Information that is no longer required because of a
revision under Subsection (a) of this section may be required again
at any time by the comptroller.
Acts 1981, 67th Leg., p. 1504, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.053. FILING DATES: WEEKENDS AND
HOLIDAYS. (a) If the date on which a report or payment of any
state tax is due falls on a Saturday, Sunday, or legal holiday
included on the list published for the year under Subsection (b),
the next day that is not a Saturday, Sunday, or legal holiday
included on that list becomes the due date.
(b) Before January 1 of each year, the comptroller shall
publish in the Texas Register and distribute to each state agency
that receives reports or payments of any taxes a list of the legal
holidays for banking purposes for that year. The comptroller may
not include on the list a holiday on which the comptroller
determines that most financial institutions will be conducting
ordinary business.
(c) An agency that collects a tax for which a due date for a
report or payment falls on a legal holiday not included on the list
published under Subsection (b) shall ensure that a taxpayer may
make a report or payment on that date. The agency may enter into an
agreement with the comptroller for the receipt of reports or
payments on that date.
Acts 1981, 67th Leg., p. 1505, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 4, § 4.03, eff.
Dec. 1, 1991; Acts 1997, 75th Leg., ch. 1423, § 19.04, eff.
Sept. 1, 1997.
§ 111.054. TIMELY FILING: MAIL DELIVERY. (a) If a tax
payment or a report is placed in a U.S. Post Office or in the hands
of a common or contract carrier properly addressed to the
comptroller on or before the date the payment or report is required
to be made or filed, the payment or report is made or filed on time.
(b) The receipt mark of a contract or common carrier or the
postmark on a tax payment or report is prima facie evidence of the
date on which the payment or report was delivered to a carrier or
the post office. The comptroller or the person making the payment
or filing the report may show by competent evidence that the actual
date of delivery to the carrier or post office differs from the
receipt mark or postmark.
(c) The comptroller may refund or issue credits for
penalties and interest paid solely as a result of returns or tax
payments timely mailed but postmarked after the required filing
date.
Acts 1981, 67th Leg., p. 1505, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.055. TIMELY FILING: DILIGENCE. A person who
files a report or makes a tax payment complies with the filing
requirements for timeliness if the person exercises reasonable
diligence to comply and through no fault of the person the report is
not filed or the payment is not made on time.
Acts 1981, 67th Leg., p. 1505, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.056. FILING WITHIN 10 DAYS: PENALTY AND
INTEREST. If a report is filed or a tax payment is made before the
expiration of 10 days after the date on which the report or payment
is due and if the report as originally filed shows the correct
amount of the tax due or the amount of the payment is for the correct
amount due, no assessment for penalty or interest may be made solely
on the grounds of late filing after the expiration of 90 days after
the date the report was required to be filed or the payment required
to be made.
Acts 1981, 67th Leg., p. 1505, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.057. EXTENSION FOR FILING REPORT. (a) The
comptroller may grant a reasonable extension of time, not to exceed
45 days, for the filing of a report required by this title.
(b) To qualify for an extension of time under this section,
the person required to file a report must make a request for the
extension to the comptroller and remit not less than 90 percent of
the amount of the tax estimated to be due on or before the filing
date as required by other provisions of this title. The request
must be in writing and include the reason an extension is needed.
Acts 1981, 67th Leg., p. 1505, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.058. FILING EXTENSION BECAUSE OF NATURAL
DISASTER. (a) The comptroller may grant to a person whom the
comptroller finds to be a victim of a natural disaster an extension
of not more than 90 days to make or file a return or pay a tax
imposed by this title.
(b) The person owing the tax may file a request for an
extension at any time before the expiration of 90 days after the
original due date.
(c) If an extension under this section is granted, interest
on the unpaid tax does not begin to accrue until the day after the
day on which the extension expires, and tax penalties are assessed
and determined as though the last day of the extension were the
original due date.
Acts 1981, 67th Leg., p. 1505, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.059. OATH NOT REQUIRED. A report, return,
declaration, claim for refund, or other document required or
permitted to be filed with the comptroller is not required to be
made or submitted under oath, verification, acknowledgment, or
affirmation.
Acts 1981, 67th Leg., p. 1506, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.060. INTEREST ON DELINQUENT TAX. (a) The yearly
interest rate on all delinquent taxes imposed by this title is at
the rate of 12 percent for report periods originally due on or
before December 31, 1999, after which the rate of interest is
variable and determined as provided in Subsection (b).
(b) The rate of interest to be charged to the taxpayer is the
prime rate plus one percent, as published in The Wall Street Journal
on the first day of each calendar year that is not a Saturday,
Sunday, or legal holiday.
(c) Except as provided by Subsection (d), delinquent taxes
draw interest beginning 60 days after the date due.
(d) Subsection (c) does not apply to the taxes imposed by
Chapters 152 and 211 or under an agreement made under Section
153.017.
Acts 1981, 67th Leg., p. 1506, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1983, 68th Leg., p. 450, ch. 93, § 1, eff. Sept.
1, 1983; Acts 1991, 72nd Leg., ch. 409, § 69, eff. June 7, 1991;
Acts 1991, 72nd Leg., 1st C.S., ch. 5, § 13.01, eff. Sept. 1,
1991; Acts 1993, 73rd Leg., ch. 587, § 5, eff. Jan. 1, 1994;
Acts 1995, 74th Leg., ch. 1000, § 2, eff. Oct. 1, 1995; Acts
1999, 76th Leg., ch. 459, § 1, eff. Jan. 1, 2000.
§ 111.061. PENALTY ON DELINQUENT TAX OR TAX
REPORTS. (a) Except as otherwise provided, a penalty of five
percent of the tax due shall be imposed on a person who fails to pay
a tax imposed or file a report required by Title 2 or 3 of this code
when due, and, if the person fails to file the report or pay the tax
within 30 days after the day on which the tax or report is due, an
additional five percent penalty shall be imposed.
(b) Except where another penalty for fraud or intent to
evade the tax is specifically provided, an additional penalty of 50
percent of the tax due shall be imposed if it is determined that:
(1) the failure to pay the tax or file a report when
due was a result of fraud or an intent to evade the tax; or
(2) the taxpayer alters, destroys, or conceals any
record, document, or thing, or presents to the comptroller any
altered or fraudulent record, document, or thing, or otherwise
engages in fraudulent conduct, for the apparent purpose of
affecting the course or outcome of an audit, investigation,
redetermination, or other proceeding before the comptroller.
Added by Acts 1989, 71st Leg., ch. 231, § 4, eff. Aug. 28, 1989.
Amended by Acts 1997, 75th Leg., ch. 1040, § 6, eff. Sept. 1,
1997.
§ 111.062. ACCEPTANCE OF CREDIT CARDS FOR PAYMENT OF
CERTAIN TAXES AND FEES. (a) The comptroller may accept a credit
card in payment of:
(1) a delinquent tax and related penalties and
interest imposed by this code;
(2) a fee charged for:
(A) an account status certificate;
(B) a no tax due certificate;
(C) postage;
(D) a certified copy;
(E) a copy of a document;
(F) a microfilm copy;
(G) written evidence of the comptroller's
records;
(H) research;
(I) labor;
(J) a minerals tax history; and
(K) a minerals tax extract; and
(3) any other service fee charged by the comptroller.
(b) If the comptroller accepts a payment by credit card, the
comptroller may require the payment of a processing fee by the
credit card user.
Added by Acts 1993, 73rd Leg., ch. 449, § 38, eff. Sept. 1, 1993.
§ 111.0625. ELECTRONIC TRANSFER OF CERTAIN
PAYMENTS. The comptroller by rule shall require a taxpayer who
paid $100,000 or more during the preceding fiscal year in a category
of payments required under this title to transfer payments in that
category by means of electronic funds transfer in accordance with
Section 404.095, Government Code, if the comptroller reasonably
anticipates the person will pay at least that amount during the
current fiscal year.
Added by Acts 2001, 77th Leg., ch. 41, § 1, eff. May 3, 2001.
§ 111.0626. ELECTRONIC FILING OF CERTAIN
REPORTS. (a) The comptroller by rule shall require electronic
filing of a report required under Chapter 151, 201, or 202, or an
international fuel tax agreement, for a taxpayer who is also
required under Section 111.0625 to transfer payments by electronic
funds transfer.
(b) The comptroller may adopt rules requiring electronic
filing of a report not described by Subsection (a).
(c) A rule adopted under this section must provide for a
waiver from the electronic filing requirement for a taxpayer who
cannot comply.
Added by Acts 2001, 77th Leg., ch. 41, § 1, eff. May 3, 2001.
§ 111.063. PENALTY FOR FAILURE TO USE ELECTRONIC
TRANSFERS AND FILINGS. (a) The comptroller may impose a penalty
of five percent of the tax due on a person who:
(1) is required by statute or rule to pay the tax to
the comptroller by means of electronic funds transfer and does not
pay the tax by means of electronic funds transfer; or
(2) is required under Section 111.0626 to file a
report electronically and does not file the report electronically.
(b) The penalties provided by this section are in addition
to any other penalty provided by law.
Added by Acts 1995, 74th Leg., ch. 87, § 2, eff. Sept. 1, 1995.
Amended by Acts 2001, 77th Leg., ch. 41, § 2, eff. May 3, 2001.
§ 111.064. INTEREST ON REFUND OR CREDIT. (a) Except as
provided by Subsections (b) and (c), in a comptroller's final
decision on a claim for refund or in an audit, interest is at the
rate set in Section 111.060 on the amount found to be erroneously
paid for a period:
(1) beginning on the later of 60 days after the date of
payment or the due date of the tax report; and
(2) ending on, as determined by the comptroller,
either the date of allowance of credit on account of the
comptroller's final decision or audit or a date not more than 10
days before the date of the refund warrant.
(b) A credit taken by a taxpayer on the taxpayer's return
does not accrue interest.
(c) For a refund granted for a report period due on or after
January 1, 2000, the rate of interest is the rate set in Section
111.060. A refund for a report period due before January 1, 2000,
does not accrue interest.
(d) This section does not apply to an amount paid to the
comptroller under Title 6, Property Code, or under an agreement
made under Section 153.017.
(e) All warrants for interest payments shall be drawn
against the fund or account into which the erroneously paid tax was
deposited. The interest shall be paid from funds appropriated for
that purpose.
(f) A local revenue fund is not subject to Subsections
(a)-(c). In this subsection, "local revenue fund" includes a court
cost, a fee, a fine, or a similar charge collected by a
municipality, a county, or a court of this state and remitted to the
comptroller.
Added by Acts 1999, 76th Leg., ch. 459, § 2, eff. Jan. 1, 2000.
Amended by Acts 2001, 77th Leg., ch. 1158, § 90, eff. Oct. 1,
2001.
SUBCHAPTER C. SETTLEMENTS, REFUNDS, AND CREDITS
§ 111.101. SETTLEMENT. (a) The comptroller may settle
a claim for a tax, penalty, or interest imposed by this title if the
total costs of collection, as conclusively determined by the
comptroller, of the total amount due would exceed the total amount
due.
(b) The comptroller may settle a claim for a refund of tax,
penalty, or interest imposed by this title if the total costs of
defending a denial of the claim, as conclusively determined by the
comptroller, would exceed the total amount claimed.
Acts 1981, 67th Leg., p. 1506, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1995, 74th Leg., ch. 1000, § 3, eff. Oct. 1,
1995; Acts 1999, 76th Leg., ch. 459, § 3, eff. Aug. 30, 1999.
§ 111.102. SETTLEMENT ON REDETERMINATION. As a part of
a redetermination order, the comptroller may settle a claim for a
tax, penalty, or interest imposed by this title if:
(1) collection of the total amount due would make the
taxpayer insolvent and the taxpayer has submitted to the
comptroller all financial records, including income tax reports and
an inventory of all property owned wherever located; or
(2) the taxpayer is insolvent, is in liquidation, or
has ceased to do business and:
(A) the taxpayer has no property that may be
seized by the courts of this or another state; or
(B) the value of the taxpayer's property is less
than the total amount due and the amount of debts against the
property.
Acts 1981, 67th Leg., p. 1506, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1999, 76th Leg., ch. 459, § 4, eff. Aug. 30,
1999.
§ 111.103. SETTLEMENT OF PENALTY AND INTEREST
ONLY. (a) The comptroller may settle a claim for a tax penalty or
interest on a tax imposed by this title if the taxpayer exercised
reasonable diligence to comply with the provisions of this title.
(b) Repealed by Acts 1991, 72nd Leg., ch. 705, §
42(a)(1), eff. Sept. 1, 1991.
Acts 1981, 67th Leg., p. 1507, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 705, § 42(a)(1), eff. Sept.
1, 1991.
§ 111.104. REFUNDS. (a) If the comptroller finds that
an amount of tax, penalty, or interest has been unlawfully or
erroneously collected, the comptroller shall credit the amount
against any other amount when due and payable by the taxpayer from
whom the amount was collected. The remainder of the amount, if any,
may be refunded to the taxpayer from money appropriated for tax
refund purposes.
(b) A tax refund claim may be filed with the comptroller
only by the person who directly paid the tax to this state or by the
person's attorney, assignee, or other successor.
(c) A claim for a refund must:
(1) be written;
(2) state fully and in detail each reason or ground on
which the claim is founded; and
(3) be filed before the expiration of the applicable
limitation period as provided by this code or before the expiration
of six months after a jeopardy or deficiency determination becomes
final, whichever period expires later.
(d) A refund claim for an amount of tax that has been found
due in a jeopardy or deficiency determination is limited to the
amount of tax, penalty, and interest and to the tax payment period
for which the determination was issued. The failure to file a
timely tax refund claim is a waiver of any demand against the state
for an alleged overpayment.
(e) This section applies to all taxes and license fees
collected or administered by the comptroller, except the state
property tax.
(f) No taxes, penalties, or interest may be refunded to a
person who has collected the taxes from another person unless the
person has refunded all the taxes and interest to the person from
whom the taxes were collected.
Acts 1981, 67th Leg., p. 1507, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 154, § 2, eff. Aug. 28,
1989; Acts 1999, 76th Leg., ch. 1467, § 2.13, eff. Oct. 1, 1999;
Acts 2003, 78th Leg., ch. 1310, § 86, eff. June 20, 2003.
§ 111.1042. TAX REFUND: INFORMAL REVIEW. (a) The
comptroller may informally review a claim for refund filed in
accordance with this title and may grant or deny it, in whole or in
part.
(b) An informal review under this section is not a hearing
or contested case under Chapter 2001, Government Code.
(c) This section does not impair the right to a hearing on a
claim for refund provided in Section 111.105.
(d) If the right to a hearing is not exercised on a full or
partial denial of a claim for refund, the period during which the
comptroller informally reviewed the claim for refund does not toll
the limitation period for any subsequent claim for refund on the
same period and type of tax for which the claim for refund was fully
or partially denied.
Added by Acts 1993, 73rd Leg., ch. 587, § 6, eff. Sept. 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept.
1, 1995; Acts 2003, 78th Leg., ch. 1310, § 87, eff. June 20,
2003.
§ 111.105. TAX REFUND: HEARING. (a) A person claiming
a refund under Section 111.104 is entitled to a hearing on the claim
if the person requests a hearing on or before the 30th day after the
date the comptroller issues a letter denying the claim for refund.
The person is entitled to 20 days' notice of the time and place of
the hearing.
(b) A decision of the comptroller following a hearing on a
claim for a refund becomes final 20 days after service on the
claimant of the notice of the order or decision.
(c) A tax refund claimant who is dissatisfied with the
decision on the claim is entitled to file a motion for rehearing.
(d) A motion for rehearing on a tax refund claim must be
written and assert each specific ground of error. The amount of the
refund sought must be set out in the motion for rehearing.
(e) During the administrative hearing process, a person
claiming a refund under Section 111.104 must submit documentation
to enable the comptroller to verify the claim for refund. The
comptroller may issue a notice of demand that all evidence to
support the claim for refund must be produced before the expiration
of a specified date in the notice. The specified date in the notice
may not be earlier than 180 days after the date the refund is
claimed. The comptroller may not consider evidence produced after
the specified date in the notice in an administrative hearing. The
limitation provided by this subsection does not apply to a judicial
proceeding filed in accordance with Chapter 112.
Acts 1981, 67th Leg., p. 1507, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1987, 70th Leg., ch. 89, § 1, eff. Sept. 1, 1987;
Acts 1991, 72nd Leg., ch. 705, § 5, eff. Sept. 1, 1991; Acts
1993, 73rd Leg., ch. 587, § 7, eff. Sept. 1, 1993; Acts 2003,
78th Leg., ch. 1310, § 88, eff. June 20, 2003.
§ 111.107. WHEN REFUND OR CREDIT IS
PERMITTED. (a) Except as otherwise expressly provided, a person
may request a refund or a credit or the comptroller may make a
refund or issue a credit for the overpayment of a tax imposed by
this title at any time before the expiration of the period during
which the comptroller may assess a deficiency for the tax and not
thereafter unless the refund or credit is requested:
(1) under Subchapter B of Chapter 112 and the refund is
made or the credit is issued under a court order;
(2) under the provision of Section 111.104(c)(3)
applicable to a refund claim filed after a jeopardy or deficiency
determination becomes final; or
(3) under Chapter 153, except Section 153.1195(e),
153.121(d), 153.2225(e), or 153.224(d).
(b) A person may not refile a refund claim for the same
transaction or item, tax type, period, and ground or reason that was
previously denied by the comptroller.
Acts 1981, 67th Leg., p. 1508, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 232, § 2, eff. Sept. 1,
1989; Acts 1993, 73rd Leg., ch. 587, § 8, eff. Sept. 1, 1993;
Acts 1997, 75th Leg., ch. 1040, § 7, eff. Oct. 1, 1997; Acts
1999, 76th Leg., ch. 1467, § 2.14, eff. Oct. 1, 1999; Acts 2003,
78th Leg., ch. 1310, § 89, eff. June 20, 2003.
§ 111.108. RECOVERY OF REFUND OR CREDIT. (a) Within
four years after the date that a refund is erroneously paid or an
amount of credit is erroneously allowed, the comptroller may
recover the refund or credit in a jeopardy or deficiency
determination.
(b) This section does not extend or toll a period of
limitation under this title for filing a timely claim for a refund.
Acts 1981, 67th Leg., p. 1508, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1993, 73rd Leg., ch. 587, § 9, eff. Sept. 1,
1993.
§ 111.109. TAX REFUND FOR WAGES PAID TO EMPLOYEE
RECEIVING AID TO FAMILIES WITH DEPENDENT CHILDREN. The
comptroller shall issue a refund for a tax paid by a person to this
state in the amount of a tax refund voucher issued by the Texas
Workforce Commission under Subchapter H, Chapter 301, Labor Code,
subject to the provisions of that subchapter.
Added by Acts 1993, 73rd Leg., ch. 486, § 4.02, eff. Jan. 1,
1994; Amended by Acts 1997, 75th Leg., ch. 228, § 3, eff. Sept.
1, 1997.
§ 111.110. TAX CREDIT FOR REAL PROPERTY CONTRIBUTED TO
AN INSTITUTION OF HIGHER EDUCATION. (a) Subject to the
provisions of Subchapter D, Chapter 55, Education Code, the
comptroller shall issue a credit to be used by a taxpayer who
qualifies for the credit under that subchapter against the payment
of a tax imposed on the taxpayer:
(1) for the franchise tax under Chapter 171; or
(2) if the taxpayer holds a direct payment permit for
the sales and use tax under Chapter 151, for that tax.
(b) The credit applies to a tax originally due on or after
the date the credit is issued but not later than the end of the 20th
calendar year following the calendar year in which the credit was
issued.
(c) A taxpayer may not claim a credit issued under this
section in a calendar year in an amount greater than five percent of
the total credit issued to that taxpayer.
(d) A taxpayer shall include with a return or report showing
an amount of tax due against which a taxpayer claims a credit under
this section, a statement containing the following information:
(1) the original amount of the credit and its date of
issue;
(2) the total amount of the credit previously claimed
by the taxpayer;
(3) the amount of credit claimed on the attached
return;
(4) the remaining unused credit amount; and
(5) the calendar year in which the credit expires.
(e) The comptroller may recover an amount erroneously
claimed as a credit in a jeopardy or deficiency determination
issued before the fourth anniversary of the date on which the
erroneous claim is filed.
Added by Acts 1995, 74th Leg., ch. 1019, § 1, eff. Sept. 1, 1995.
SUBCHAPTER D. LIMITATIONS
§ 111.201. ASSESSMENT LIMITATION. No tax imposed by
this title may be assessed after four years from the date that the
tax becomes due and payable.
Acts 1981, 67th Leg., p. 1508, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1993, 73rd Leg., ch. 486, § 1.05, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 1000, § 4, eff. Oct. 1, 1995.
§ 111.202. SUIT LIMITATION. At any time within three
years after a deficiency or jeopardy determination has become due
and payable or within three years after the last recording of a
lien, the comptroller may bring an action in the courts of this
state, or any other state, or of the United States in the name of the
people of the State of Texas to collect the amount delinquent
together with penalties and interest.
Acts 1981, 67th Leg., p. 1508, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.203. AGREEMENTS TO EXTEND PERIOD OF
LIMITATION. (a) Before the expiration of the periods prescribed
in Sections 111.104, 111.201, and 111.202 of this code for the
filing of a refund claim or for the assessment and collection of any
tax imposed by this title, the comptroller and a taxpayer may agree
in writing to the filing of a refund claim or to an assessment and
collection after that time. The agreement must contain the reasons
the comptroller and the taxpayer wish to extend the period. At any
time before the expiration of the period agreed on, the refund may
be made, the tax may be assessed and collected, or an action may be
commenced in any court to collect the amount delinquent.
(b) The extended period agreed on under Subsection (a) of
this section may be extended by subsequent agreements made before
the expiration of the extended period. All subsequent agreements
must set forth the reasons for extending the period.
(c) No single extension agreement may be for a period of
more than 24 months from the expiration date of the period being
extended.
(d) The period for filing a refund claim or for assessment
and collection of a tax may be extended if:
(1) without an extension, there might occur a revenue
loss to the state;
(2) either the taxpayer or the comptroller, despite
good faith efforts, requires more time to prepare for or complete
the audit;
(3) without an extension, circumstances beyond the
control of either the comptroller or the taxpayer would make an
audit by the comptroller impractical or burdensome for either
party; or
(4) an issue of law involved in the audit is awaiting
determination in either litigation or an administrative
proceeding.
(e) If, during an extended period agreed on under Subsection
(a) of this section, the comptroller finds that an amount of tax,
penalty, or interest has been unlawfully or erroneously collected,
the comptroller shall credit the amount against any other amount
then due and payable by the taxpayer from whom the amount was
collected. The remainder of the amount if any may be refunded to
the taxpayer.
Acts 1981, 67th Leg., p. 1508, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1983, 68th Leg., p. 458, ch. 94, § 1, 2, eff. May
10, 1983.
§ 111.204. BEGINNING OF PERIOD OF LIMITATION. In
determining the beginning date for a period of limitation provided
in this title, the date that a tax is due and payable is the day
after the last day on which a payment is required by the chapter of
this title imposing the tax.
Acts 1981, 67th Leg., p. 1509, ch. 389, § 1, eff. Jan. 1, 1982.
§ 111.205. EXCEPTION TO ASSESSMENT
LIMITATION. (a) The limitation provided by Section 111.201 of
this code does not apply and the comptroller may assess a tax
imposed by this title at any time if:
(1) with intent to evade the tax, the taxpayer files a
false or fraudulent report;
(2) no report for the tax has been filed; or
(3) information contained in the report of the tax
contains a gross error.
(b) In this section, "gross" error means that, after
correction of the error, the amount of tax due and payable exceeds
the amount initially reported by at least 25 percent.
Acts 1981, 67th Leg., p. 1509, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1983, 68th Leg., p. 459, ch. 94, § 4, eff. May 10,
1983; Acts 1993, 73rd Leg., ch. 587, § 10, eff. Sept. 1, 1993.
§ 111.2051. ASSESSMENT WHEN REFUND
CLAIMED. (a) Notwithstanding the expiration of any period of
limitation provided under this title, the comptroller may assess a
tax imposed by this title if a taxpayer files a timely claim for
refund with the comptroller.
(b) An assessment authorized by this section is limited to
the tax payment period and type of tax for which the refund is
sought and must be made before the later of:
(1) four years after the date the refund claim is filed
with the comptroller; or
(2) the expiration of the applicable limitation period
for making assessments as otherwise provided by this title.
(c) This section extends only the time in which the
comptroller may assess the tax and does not extend or toll a period
of limitation under this title for filing a timely claim for refund.
Added by Acts 1993, 73rd Leg., ch. 587, § 11, eff. Sept. 1, 1993.
§ 111.206. EXCEPTION TO LIMITATION: DETERMINATION
RESULTING FROM ADMINISTRATIVE PROCEEDING. (a) This section
applies only to a final determination resulting from:
(1) an administrative proceeding of a local, state, or
federal regulatory agency; or
(2) a judicial proceeding arising from an
administrative proceeding of a local, state, or federal regulatory
agency.
(b) A final determination that affects the amount of
liability of a tax imposed by this title shall be reported to the
comptroller before the expiration of 120 days after the day on which
the determination becomes final. The report must include a
detailed statement of the reasons for the difference in tax
liability as required by the comptroller.
(c) Notwithstanding the expiration of a period of
limitation provided in this title, the comptroller may assess and
collect or bring suit for the collection of any tax deficiency,
including penalties and interest, resulting from a final
determination at any time before the expiration of one year after:
(1) the later of the day the report is required to be
filed as provided by Subsection (b) or the day the report is
received; or
(2) the day the final determination is discovered, if
a report is not filed.
(d) If a final determination results in the taxpayer having
overpaid the amount of tax due the state, the taxpayer may file a
claim for refund with the comptroller for the amount of the
overpayment before the first anniversary of the date the final
determination becomes final. If the comptroller assesses tax by
issuing a deficiency determination within the period provided by
Subsection (c), the taxpayer may file a claim for refund for an
amount of
