TAX CODE
CHAPTER 155. CIGARS AND TOBACCO PRODUCTS TAX
SUBCHAPTER A. GENERAL PROVISIONS
§ 155.001. DEFINITIONS. In this chapter:
(1) "Bonded agent" means a person in this state who is
an agent of a person outside this state and receives cigars and
tobacco products in interstate commerce and stores the cigars and
tobacco products for distribution or delivery to distributors under
orders from the person outside this state.
(2) "Cigar" means a roll of fermented tobacco that is
wrapped in tobacco and the main stream of smoke from which produces
an alkaline reaction to litmus paper.
(3) "Commercial business location" means the entire
premises occupied by a permit applicant or a person required to hold
a permit under this chapter.
(4) "Common carrier" means a motor carrier registered
under Chapter 643, Transportation Code, or a motor carrier
operating under a certificate issued by the Interstate Commerce
Commission or a successor agency to the Interstate Commerce
Commission.
(5) "Consumer" means a person who possesses tobacco
products for personal consumption.
(6) "Distributor" means a person who:
(A) receives tobacco products for the purpose of
making a first sale in this state from a manufacturer outside the
state or within the state or otherwise brings or causes to be
brought into this state tobacco products for sale, use, or
consumption;
(B) manufactures or produces tobacco products;
or
(C) is an importer or import broker.
(7) "Export warehouse" means a person in this state
who receives tobacco products from manufacturers and stores the
tobacco products for the purpose of making sales to authorized
persons for resale, use, or consumption outside the United States.
(8) "First sale" means, except as otherwise provided
by this chapter:
(A) the first transfer of possession in
connection with a purchase, sale, or any exchange for value of
tobacco products in intrastate commerce;
(B) the first use or consumption of tobacco
products in this state; or
(C) the loss of tobacco products in this state
whether through negligence, theft, or other unaccountable loss.
(9) "Importer" or "import broker" means a person who
ships, transports, or imports into this state tobacco products
manufactured or produced outside the United States for the purpose
of making a first sale in this state.
(10) "Manufacturer" means a person who manufactures or
produces tobacco products and sells tobacco products to a
distributor.
(11) "Manufacturer's representative" means a person
employed by a manufacturer to sell or distribute the manufacturer's
tobacco products.
(12) "Permit holder" means a bonded agent,
distributor, wholesaler, manufacturer, importer, or retailer
required to obtain a permit under Section 155.041.
(13) "Place of business" means:
(A) a commercial business location where tobacco
products are sold;
(B) a commercial business location where tobacco
products are kept for sale or consumption or otherwise stored; or
(C) a vehicle from which tobacco products are
sold.
(14) "Retailer" means a person who engages in the
practice of selling tobacco products to consumers and includes the
owner of a coin-operated vending machine.
(15) "Tobacco product" means:
(A) a cigar;
(B) smoking tobacco, including granulated,
plug-cut, crimp-cut, ready-rubbed, and any form of tobacco suitable
for smoking in a pipe or as a cigarette;
(C) chewing tobacco, including Cavendish, Twist,
plug, scrap, and any kind of tobacco suitable for chewing;
(D) snuff or other preparations of pulverized
tobacco; or
(E) an article or product that is made of tobacco
or a tobacco substitute and that is not a cigarette.
(16) "Wholesaler" means a person, including a
manufacturer's representative, who sells or distributes tobacco
products in this state for resale but who is not a distributor.
Acts 1981, 67th Leg., p. 1666, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1984, 68th Leg., 2nd C.S., ch. 31, art. 2, § 7,
eff. Oct. 2, 1984; Acts 1985, 69th Leg., ch. 58, § 21, eff. March
1, 1986; Acts 1991, 72nd Leg., ch. 409, § 45, eff. June 7, 1991;
Acts 1995, 74th Leg., ch. 705, § 11, eff. Sept. 1, 1995; Acts
1997, 75th Leg., ch. 165, § 30.263, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1040, § 46, eff. Sept. 1, 1997; Acts 2001,
77th Leg., ch. 540, § 4, eff. Sept. 1, 2001; Acts 2001, 77th
Leg., ch. 1263, § 51, eff. Oct. 1, 2001.
§ 155.002. STORAGE. (a) The commercial business
location where tobacco products are stored or kept cannot be a
residence or a unit in a public storage facility.
(b) This section does not apply to a manufacturer's
representative.
Added by Acts 2001, 77th Leg., ch. 540, § 5, eff. Sept. 1, 2001.
Amended by Acts 2003, 78th Leg., ch. 209, § 27, eff. Oct. 1,
2003.
SUBCHAPTER B. IMPOSITION AND RATE OF TAX
§ 155.021. TAX IMPOSED ON CIGARS. (a) A tax is imposed
and becomes due and payable when a permit holder receives cigars for
the purpose of making a first sale in this state.
(b) The tax rates are:
(1) one cent per 10 or fraction of 10 on cigars
weighing three pounds or less per thousand;
(2) $7.50 per thousand on cigars that:
(A) weigh more than three pounds per thousand;
and
(B) sell at factory list price, exclusive of any
trade discount, special discount, or deal, for 3.3 cents or less
each;
(3) $11 per thousand on cigars that:
(A) weigh more than three pounds per thousand;
(B) sell at factory list price, exclusive of any
trade discount, special discount, or deal, for more than 3.3 cents
each; and
(C) contain no substantial amount of nontobacco
ingredients; and
(4) $15 per thousand on cigars that:
(A) weigh more than three pounds per thousand;
(B) sell at factory list price, exclusive of any
trade discount, special discount, or deal, for more than 3.3 cents
each; and
(C) contain a substantial amount of nontobacco
ingredients.
(c) Cigars taxed under Subsections (b)(3) and (b)(4) of this
section are presumed to contain a substantial amount of nontobacco
ingredients unless the report on the cigars required by Section
155.111 of this code is accompanied by an affidavit stating that
specific cigars described in the report do not contain sheet
wrapper, sheet binder, or sheet filler. If the manufacturer
prepares the report, the manufacturer shall make the affidavit. If
the distributor prepares the report, the manufacturer and the
distributor shall make the affidavit.
Acts 1981, 67th Leg., p. 1667, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1984, 68th Leg., 2nd C.S., ch. 31, art. 2, § 5,
eff. Oct. 2, 1984; Acts 1991, 72nd Leg., ch. 409, § 46, eff. June
7, 1991.
§ 155.0211. TAX IMPOSED ON TOBACCO PRODUCTS OTHER THAN
CIGARS. (a) A tax is imposed and becomes due and payable when a
permit holder receives tobacco products other than cigars, for the
purpose of making a first sale in this state.
(b) The tax rate for tobacco products other than cigars is
35.213 percent of the manufacturer's list price, exclusive of any
trade discount, special discount, or deal.
Added by Acts 1984, 68th Leg., 2nd C.S., ch. 31, art. 2, § 6, eff.
Oct. 2, 1984. Amended by Acts 1987, 70th Leg., 2nd C.S., ch. 5, art.
4, § 2; Acts 1990, 71st Leg., 6th C.S., ch. 5, § 2.02, eff.
July 1, 1990; Acts 1991, 72nd Leg., ch. 409, § 47, eff. June 7,
1991.
§ 155.022. FIRST SALE OF TOBACCO PRODUCTS. A person who
receives or possesses tobacco products on which a tax of more than
$50 would be due if the receipt or possession were for the purpose
of making a first sale in this state is presumed to receive or
possess the tobacco products for the purpose of making a first sale
in this state. This presumption does not apply to common carriers
or to manufacturers. A tax is imposed on manufacturers who
manufacture tobacco products in this state at the time the tobacco
products are first transferred in connection with a purchase, sale,
or any exchange for value in intrastate commerce. The distribution
or delivery of tobacco products by a bonded agent to a permitted
distributor in this state, under instructions received from outside
this state, is not a first sale.
Acts 1981, 67th Leg., p. 1668, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 409, § 47, eff. June 7,
1991.
§ 155.023. PAYMENT OF TAX. (a) A distributor shall pay
the tax on tobacco products received for the purpose of making a
first sale at the time the distributor files the report required by
Section 155.111. A distributor shall pay the tax by cashier's check
payable to the comptroller, by electronic funds transfer to the
comptroller or by any other method of payment authorized by the
comptroller.
(b) The person in possession of tobacco products has the
burden to prove payment of the tax on the products.
Acts 1981, 67th Leg., p. 1668, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 409, § 47, eff. June 7,
1991; Acts 1997, 75th Leg., ch. 1423, § 19.77, eff. Sept. 1,
1997.
§ 155.024. EXCEPTION FOR PERSONAL USE. A person who
personally transports cigars or tobacco products in quantities or
amounts that would ordinarily retail at 25 cents or less is not
required to pay the tax imposed by this chapter if the person uses
the cigars or tobacco products and does not sell them or offer them
for sale.
Acts 1981, 67th Leg., p. 1662, ch. 389, § 1, eff. Jan. 1, 1982.
§ 155.026. PENALTY FOR FAILURE TO PAY TAX. (a) A
distributor who fails to timely pay the tax when due shall pay five
percent of the amount of tax then due as a penalty, and if the
distributor fails to pay the tax on or before the 30th day after the
day on which the tax is due, the distributor shall pay an additional
five percent.
(b) The minimum penalty imposed by this section is $50.
(c) The dishonor of a check delivered to the treasury for
payment of taxes constitutes a failure to pay the tax when due.
Acts 1981, 67th Leg., p. 1669, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1983, 68th Leg., p. 451, ch. 93, § 3, eff. Sept.
1, 1983; Acts 1991, 72nd Leg., ch. 409, § 47, eff. June 7, 1991.
§ 155.027. VENUE. Venue of a suit for collection of a
penalty for late payment of taxes is in Travis County.
Acts 1981, 67th Leg., p. 1669, ch. 389, § 1, eff. Jan. 1, 1982.
SUBCHAPTER C. PERMITS
§ 155.041. PERMITS. (a) A person may not engage in
business as a distributor, wholesaler, bonded agent, manufacturer,
importer, or retailer unless the person has applied for and
received the applicable permit from the comptroller.
(b) Each distributor, wholesaler, bonded agent,
manufacturer, importer, or retailer shall obtain a permit for each
place of business owned or operated by the distributor, wholesaler,
bonded agent, manufacturer, importer, or retailer.
(c) The comptroller shall prescribe the form and content of
an application for a permit and shall furnish the form on request of
an applicant.
(d) The applicant shall accurately complete all information
required by the application and provide the comptroller with
additional information the comptroller considers necessary.
(e) The comptroller may require each corporation,
association, joint venture, syndicate, partnership, or
proprietorship to furnish financial information regarding the
applicant and to provide the identity of each officer, director,
stockholder owning 10 percent or more of the outstanding stock,
partner, member, owner, or managing employee.
(f) Each distributor, wholesaler, and retailer that applies
for a permit to sell tobacco products from a vehicle must provide
the make, model, vehicle identification number, registration
number, and any other information required by the comptroller.
(g) All financial information provided under this section
is confidential and not subject to Chapter 552, Government Code.
(h) Permits for engaging in business as a distributor,
wholesaler, bonded agent, manufacturer, importer, or retailer
shall be governed exclusively by the provisions of this code.
Acts 1981, 67th Leg., p. 1669, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 23, eff. March 1,
1986; Acts 1989, 71st Leg., ch. 240, § 54, eff. Oct. 1, 1989;
Acts 1991, 72nd Leg., ch. 409, § 48, eff. June 7, 1991; Acts
1995, 74th Leg., ch. 76, § 5.95(88), eff. Sept. 1, 1995; Acts
1995, 74th Leg., ch. 1000, § 47, eff. Oct. 1, 1995; Acts 1997,
75th Leg., ch. 1423, § 19.78, eff. Sept. 1, 1997; Acts 2001,
77th Leg., ch. 1263, § 52, eff. Oct. 1, 2001.
§ 155.0415. SALES: PERMIT HOLDERS AND NONPERMIT
HOLDERS. (a) Except for retail sales to consumers, tobacco
products may only be sold or distributed by and between permit
holders.
(b) A person who is not a permit holder may not sell or
distribute tobacco products on which a tax of more than $50 has been
paid or is due.
Added by Acts 1991, 72nd Leg., ch. 409, § 49, eff. June 7, 1991.
§ 155.045. COMBINATION PERMIT. The comptroller may
issue a combination permit for cigarettes and tobacco products
under Section 154.102. A person who receives a combination permit
is subject to the provisions of this chapter in the same manner as a
person holding a single permit under this chapter.
Acts 1981, 67th Leg., p. 1670, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 24, eff. March 1,
1986; Acts 1989, 71st Leg., ch. 240, § 58, eff. Oct. 1, 1989;
Acts 1991, 72nd Leg., ch. 409, § 50, eff. June 7, 1991; Acts
1997, 75th Leg., ch. 1423, § 19.79, eff. Sept. 1, 1997.
§ 155.048. ISSUANCE OF PERMITS. (a) The comptroller
shall issue a permit to a distributor, wholesaler, bonded agent,
manufacturer, importer, or retailer if the comptroller:
(1) has received an application and fee, if required;
(2) does not reject the application and deny the
permit under Section 155.0481; and
(3) determines that issuing the permit will not
jeopardize the administration and enforcement of this chapter.
(b) The permit shall be issued for a designated place of
business, except as provided by Section 155.053.
(c) The permits are nonassignable.
(d) The permit must indicate the type of permit that it is
and authorize the sale of tobacco products in this state. The
permit must show that it is revocable and shall be forfeited or
suspended if the conditions of issuance, provisions of this
chapter, or rules of the comptroller are violated.
Acts 1981, 67th Leg., p. 1670, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 26, eff. March 1,
1986; Acts 1989, 71st Leg., ch. 240, § 61, eff. Oct. 1, 1989;
Acts 1991, 72nd Leg., ch. 409, § 50, eff. June 7, 1991; Acts
1997, 75th Leg., ch. 1423, § 19.80, eff. Sept. 1, 1997; Acts
2001, 77th Leg., ch. 1263, § 53, eff. Oct. 1, 2001.
§ 155.0481. DENIAL OF PERMIT. The comptroller may
reject an application and deny a permit if the comptroller finds,
after notice and opportunity for hearing, any of the following:
(1) the premises where business will be conducted are
not adequate to protect the tobacco products; or
(2) the applicant or managing employee, or, if the
applicant is a corporation, an officer, director, manager, or any
stockholder who holds directly or through family or partner
relationship 10 percent or more of the corporation's stock, or, if
the applicant is a partnership, a partner or manager:
(A) has failed to disclose any information
required by Sections 155.041(d), (e), and (f), including prior
business experience, financial condition of the permit holder,
present or previous business affiliations, prior employment, and
any conviction of a felony, or has made a false statement in the
application; or
(B) has previously violated provisions of this
chapter.
Added by Acts 1991, 72nd Leg., ch. 409, § 50, eff. June 7, 1991.
Amended by Acts 1997, 75th Leg., ch. 1423, § 19.81, eff. Sept. 1,
1997.
§ 155.049. LICENSING YEAR; FEES. (a) A permit
required by this chapter expires on the last day of February of each
year, except the retailer's permit required by Section 155.041
expires on the last day of May of each even-numbered year.
(b) An application for a permit required by this chapter
must be accompanied by a fee of:
(1) $300 for a bonded agent's permit;
(2) $300 for a distributor's permit;
(3) $200 for a wholesaler's permit;
(4) $15 for each permit for a vehicle if the applicant
is also applying for a permit as a bonded agent, distributor, or
wholesaler or has received a current permit from the comptroller
under Sections 155.041 and 155.048; and
(5) $180 for a retailer's permit.
(c) Repealed by Acts 1997, 75th Leg., ch. 671, § 4.06(b),
eff. Sept. 1, 1997.
(d) For a new or renewal permit required by Section 155.041,
the comptroller shall prorate the fee according to the number of
months remaining during the calendar year that the permit is to be
in effect.
(e) A person who does not obtain a permit each year in a
timely manner must pay a late fee of $50 in addition to the
application fee for the permit.
(f) If at the date of issuance a permit will expire within
three months, the comptroller may collect the prorated permit fee
or the fee for a current year and, with the consent of the permit
holder, may collect the fee for the next permit year and issue a
permit or permits for both periods, as applicable.
(g) Expired.
Acts 1981, 67th Leg., p. 1670, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 27, eff. March 1,
1986; Acts 1989, 71st Leg., ch. 240, § 62, eff. Oct. 1, 1989;
Acts 1991, 72nd Leg., ch. 409, § 50, eff. June 7, 1991; Acts
1997, 75th Leg., ch. 671, § 4.06, eff. Sept. 1, 1997; Acts 1997,
75th Leg., ch. 1423, § 19.82, eff. Sept. 1, 1997.
§ 155.050. PAYMENT FOR PERMITS. (a) An applicant for a
permit required by Section 155.041 shall send the required fee with
the application.
(b) The payment must be in cash or by money order or check.
(c) A permit may not be issued in exchange for a check until
after the comptroller has received full payment on the check.
Acts 1981, 67th Leg., p. 1671, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 63, eff. Oct. 1,
1989; Acts 1991, 72nd Leg., ch. 409, § 50, eff. June 7, 1991;
Acts 1997, 75th Leg., ch. 1423, § 19.83, eff. Sept. 1, 1997.
§ 155.053. DISPLAY OF PERMIT. (a) Each permit holder
shall keep the permit on public display at the place of business for
which the permit was issued.
(b) Each permit holder who has a permit assigned to a
vehicle shall post the permit in a conspicuous place on the vehicle.
(c) Each retailer who operates a vending machine that
includes tobacco products shall place a retailer's permit on the
machine.
Acts 1981, 67th Leg., p. 1671, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 29, eff. March 1,
1986; Acts 1991, 72nd Leg., ch. 409, § 50, eff. June 7, 1991.
§ 155.058. REVENUE. (a) Except as provided by
Subsection (b), revenue from the sale of permits to distributors,
wholesalers, and bonded agents is allocated in the same manner that
other revenue is allocated by Subchapter H.
(b) Revenue from the sale of retailer's permits shall be
deposited to the general revenue fund and may be appropriated only
as provided by this section. The money may be appropriated first to
the comptroller for administration of licensing of retailers under
this chapter or Chapter 154.
(c) If, after any appropriation is made under Subsection
(b), revenue remains from the sale of retailer's permits, the
remaining money may be appropriated to the comptroller for
administration and enforcement of Subchapters H, K, and N, Chapter
161, Health and Safety Code, and to the Texas Department of Health,
for the administration and enforcement of Section 161.253, Health
and Safety Code.
(d) If, after any appropriation is made under Subsections
(b) and (c), revenue remains from the sale of retailer's permits,
the remaining money may be appropriated to the Texas Department of
Health to administer the commissioner of public health's
responsibilities under Section 161.301, Health and Safety Code.
(e) If, after any appropriation is made under Subsections
(b), (c), and (d), revenue remains from the sale of retailer's
permits, the remaining money may be appropriated to the appropriate
entity to administer that entity's responsibilities under Section
161.302, Health and Safety Code.
Acts 1981, 67th Leg., p. 1672, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 33, eff. March 1,
1986; Acts 1991, 72nd Leg., ch. 409, § 50, eff. June 7, 1991;
Acts 1997, 75th Leg., ch. 671, § 4.07, eff. Sept. 1, 1997.
§ 155.059. FINAL SUSPENSION OR REVOCATION OF
PERMIT. (a) The comptroller may revoke or suspend a person's
permit if the comptroller finds, after notice and hearing as
provided by this section, that the permit holder violated this
chapter or an administrative rule made under this chapter.
(b) If the comptroller intends to suspend or revoke a
permit, the comptroller shall provide the permit holder with
written notice that includes a statement:
(1) of the reason for the intended revocation or
suspension;
(2) that the permit holder is entitled to a hearing by
the comptroller on the proposed suspension or revocation; and
(3) of the date, time, and place of the hearing.
(c) The comptroller shall deliver the written notice by
personal service or by mail to the permit holder's mailing address
as it appears in the comptroller's records. Service by mail is
complete when the notice is deposited with the United States Postal
Service.
(d) The comptroller shall give the permit holder not less
than 10 days' notice of a final hearing.
(e) A permit holder may appeal the decision of the
comptroller to a district court in Travis County not later than the
30th day after the date the comptroller's decision becomes final.
(f) A person whose permit is suspended or revoked may not
sell, offer for sale, or distribute tobacco products from the place
of business to which the permit applied until a new permit is
granted or the suspension is removed.
(g) If the comptroller suspends or revokes a permit, the
comptroller shall provide written notice of the suspension or
revocation, within a reasonable time, to each permit holder in the
state. A permit holder violates Section 155.0415(a) by selling or
distributing tobacco products to a person whose permit has been
suspended or revoked only after the permit holder receives written
notice of the suspension or revocation from the comptroller.
Acts 1981, 67th Leg., p. 1672, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 34, eff. March 1,
1986; Acts 1989, 71st Leg., ch. 240, § 67, eff. Oct. 1, 1989;
Acts 1991, 72nd Leg., ch. 409, § 50, eff. June 7, 1991; Acts
1995, 74th Leg., ch. 1000, § 48, eff. Oct. 1, 1995; Acts 1997,
75th Leg., ch. 1423, § 19.84, eff. Sept. 1, 1997; Acts 1999,
76th Leg., ch. 1467, § 2.43, eff. Oct. 1, 1999.
§ 155.0591. SUMMARY SUSPENSION OF A PERMIT. (a) The
comptroller may suspend a person's permit without notice or a
hearing for the person's failure to comply with this chapter or a
rule adopted under this chapter if the person's continued operation
constitutes an immediate and substantial threat to the collection
of taxes imposed by this chapter and attributable to the person's
operation.
(b) If the comptroller summarily suspends a person's
permit, proceedings for a preliminary hearing before the
comptroller or the comptroller's representative must be initiated
simultaneously with the summary suspension. The preliminary
hearing shall be set for a date not later than 10 days after the date
of the summary suspension, unless the parties agree to a later date.
(c) At the preliminary hearing, the permit holder must show
cause why the permit should not remain suspended pending a final
hearing on suspension or revocation.
(d) Chapter 2001, Government Code, does not apply to a
summary suspension under this section.
(e) To initiate a proceeding to suspend summarily a person's
permit, the comptroller shall serve notice on the permit holder
informing the permit holder of the right to a preliminary hearing
before the comptroller or the comptroller's representative and of
the time and place of the preliminary hearing. The notice must be
personally served on the permit holder or an officer, employee, or
agent of the permit holder or sent by certified or registered mail,
return receipt requested, to the permit holder's mailing address as
it appears in the comptroller's records. The notice must state the
alleged violations that constitute the grounds for summary
suspension. The suspension is effective at the time the notice is
served. If notice is served in person, the permit holder shall
immediately surrender the permit to the comptroller. If notice is
served by mail, the permit holder shall immediately return the
permit to the comptroller.
(f) Section 155.059, governing hearings for final
suspension or revocation of a permit under this chapter, governs a
final administrative hearing.
Added by Acts 1995, 74th Leg., ch. 1000, § 49, eff. Oct. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 1423, § 19.85, eff. Sept. 1,
1997.
§ 155.0592. DISCIPLINARY ACTION FOR CERTAIN
VIOLATIONS. (a) A retailer is subject to disciplinary action as
provided by this section if:
(1) an agent or employee of the retailer commits an
offense under Subchapter H, Chapter 161, Health and Safety Code;
and
(2) the retailer, with criminal negligence, failed to
prevent the offense through adequate supervision and training of
the agent or employee.
(b) If the comptroller finds, after notice and an
opportunity for a hearing as provided by this subchapter, that a
permit holder has violated Subchapter H or K, Chapter 161, Health
and Safety Code, at a place of business for which a permit is
issued, the comptroller may suspend the permit for that place of
business or administratively assess a fine as follows:
(1) if the permit holder has not been found to have
violated Subchapter H or K, Chapter 161, Health and Safety Code, at
that place of business during the preceding 12 months, the
comptroller may require the permit holder to pay a fine in an amount
not to exceed $500;
(2) if the permit holder has been found to have
violated Subchapter H or K, Chapter 161, Health and Safety Code, at
that place of business once during the preceding 12 months, the
comptroller may require the permit holder to pay a fine in an amount
not to exceed $750; and
(3) if the permit holder has been found to have
violated Subchapter H or K, Chapter 161, Health and Safety Code, at
that place of business at least twice during the preceding 12
months, the comptroller may require the permit holder to pay a fine
in an amount not to exceed $1,000 or suspend the permit for that
place of business for not more than three days.
(c) Except as provided by Section 155.0593, if the permit
holder has been found to have violated Section 161.082(b), Health
and Safety Code, on four or more previous and separate occasions at
the same place of business during the preceding 12 months, the
comptroller shall revoke the permit.
(d) A retailer whose permit has been revoked under this
section may not apply for a retailer's permit for the same place of
business before the expiration of six months after the effective
date of the revocation.
Added by Acts 1997, 75th Leg., ch. 671, § 4.08, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 1157, § 2, eff. Sept.
1, 1999.
§ 155.0593. ACTIONS OF EMPLOYEE. (a) For purposes of
Subchapter H, Chapter 161, Health and Safety Code, and the
provisions of this code relating to the sale or delivery of
cigarettes or tobacco products to a minor, the comptroller may
suspend a permit but may not revoke the permit under Section
155.0592 if the comptroller finds that:
(1) the employer has not violated Section 161.082(b),
Health and Safety Code, more than seven times at the place of
business for which the permit is issued in the 24-month period
preceding the violation in question;
(2) the employer requires its employees to attend a
comptroller-approved seller training program;
(3) the employee has actually attended a
comptroller-approved seller training program; and
(4) the employer has not directly or indirectly
encouraged the employee to violate the law.
(b) The comptroller shall adopt rules or policies
establishing the minimum requirements for approved seller training
programs. On application, the comptroller shall approve seller
training programs meeting the requirements that are sponsored
privately or by public community colleges. The comptroller may
charge an application fee in an amount necessary to defray the
expense of processing the application.
(c) The comptroller may approve under this section a seller
training program sponsored by a permit holder for the purpose of
training its employees without regard to whether the employees are
located at the same place of business. This subsection applies only
to a permit holder who employs at least 100 persons at any one time
during the permit year who sell cigarettes or tobacco products.
Added by Acts 1997, 75th Leg., ch. 671, § 4.09, eff. Sept. 1,
1997.
§ 155.0595. HEARINGS. Unless otherwise provided by
this chapter, the comptroller shall conduct all hearings required
by this chapter in accordance with Chapter 2001, Government Code.
The comptroller may designate one or more representatives to
conduct the hearings and may prescribe the rules of procedure
governing the hearings.
Added by Acts 1991, 72nd Leg., ch. 409, § 50, eff. June 7, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept.
1, 1995; Acts 1995, 74th Leg., ch. 1000, § 50, eff. Oct. 1, 1995;
Acts 1997, 75th Leg., ch. 1423, § 19.86, eff. Sept. 1, 1997.
SUBCHAPTER D. RECORDS AND REPORTS
§ 155.101. RECORD OF PURCHASE OR RECEIPT. Each
distributor, wholesaler, bonded agent, and export warehouse shall
keep records at each place of business of all tobacco products
purchased or received. Each retailer shall keep records at a single
location, which the retailer shall designate as its principal place
of business in the state, of all tobacco products purchased and
received. These records must include the following, except that
Subdivision (7) applies to distributors only:
(1) the name and address of the shipper or carrier and
the mode of transportation;
(2) all shipping records or copies of records,
including invoices, bills of lading, waybills, freight bills, and
express receipts;
(3) the date and the name of the place of origin of the
tobacco product shipment;
(4) the date and the name of the place of arrival of
the tobacco product shipment;
(5) a statement of the number, kind, and price paid for
the tobacco products;
(6) the name, address, permit number, and tax
identification number of the seller;
(7) the manufacturer's list price for the tobacco
products; and
(8) any other information required by rules of the
comptroller.
Acts 1981, 67th Leg., p. 1674, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 35, eff. March 1,
1986; Acts 1991, 72nd Leg., ch. 409, § 51, eff. June 7, 1991;
Acts 1995, 74th Leg., ch. 1000, § 51, eff. Oct. 1, 1995; Acts
1997, 75th Leg., ch. 1040, § 47, eff. Sept. 1, 1997; Acts 1997,
75th Leg., ch. 1423, § 19.87, eff. Sept. 1, 1997.
§ 155.102. REPORT OF SALE OR USE. (a) Each distributor
and wholesaler shall keep at each place of business in this state
records of each sale, distribution, exchange, or use of tobacco
products whether taxed under this chapter or not. Each distributor
and wholesaler shall prepare and retain an original invoice for
each transaction involving tobacco products. Each distributor or
wholesaler shall keep any supporting documentation, including
bills of lading, showing shipment and receipt used in preparing the
invoices at the place of business of the distributor or wholesaler.
The distributor or wholesaler shall prepare and deliver a duplicate
invoice to the purchaser.
(b) The records for each sale, distribution, exchange, or
use of tobacco products must show:
(1) the purchaser's name and address, permit number,
or tax identification number;
(2) the method of delivery and the name of the common
carrier or other person delivering the tobacco products;
(3) the date, amount, and type of tobacco products
sold, distributed, exchanged, or used;
(4) the price received for the tobacco products;
(5) the number and kind of tobacco products on which
the tax has been paid; and
(6) for sales from a manufacturer to a distributor,
the manufacturer's list price for the tobacco products.
Acts 1981, 67th Leg., p. 1674, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 409, § 51, eff. June 7,
1991; Acts 1997, 75th Leg., ch. 1040, § 48, eff. Sept. 1, 1997.
§ 155.103. MANUFACTURER'S RECORDS AND REPORTS. (a) A
manufacturer who sells tobacco products to a permit holder in this
state shall keep records showing:
(1) the number and kind of tobacco products sold;
(2) the date the tobacco products were sold;
(3) the name and permit number of the permit holder;
(4) the manufacturer's list price for the tobacco
products;
(5) the place where the tobacco products were shipped;
and
(6) the name of the common carrier.
(b) A manufacturer who sells tobacco products to a permit
holder in this state shall file with the comptroller, on or before
the last day of each month, a report showing the information listed
in Subsection (a) for the previous month.
Acts 1981, 67th Leg., p. 1675, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 409, § 51, eff. June 7,
1991; Acts 1997, 75th Leg., ch. 1423, § 19.88, eff. Sept. 1,
1997; Acts 1999, 76th Leg., ch. 1467, § 2.44, eff. Oct. 1, 1999.
§ 155.104. MANUFACTURER'S REPRESENTATIVE'S RECORDS. A
manufacturer's representative shall keep the same records that are
required of a wholesaler. The manufacturer's representative shall
deliver a duplicate of the invoice required by Section 155.102 to
the purchaser or recipient of the tobacco products.
Acts 1981, 67th Leg., p. 1675, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 409, § 51, eff. June 7,
1991.
§ 155.107. COMMON CARRIER RECORDS. (a) Each common
carrier shall keep records of tobacco products transported in this
state.
(b) The comptroller and the attorney general are entitled to
access during regular business hours to all records pertaining to
tobacco products that are transported.
(c) The records must show for each transaction:
(1) the names and addresses of the consignor and
consignee;
(2) the date of delivery; and
(3) the amount and type of tobacco products
transported or handled.
Acts 1981, 67th Leg., p. 1670, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 72, eff. Oct. 1,
1989; Acts 1991, 72nd Leg., ch. 409, § 51, eff. June 7, 1991;
Acts 1997, 75th Leg., ch. 1423, § 19.89, eff. Sept. 1, 1997.
§ 155.108. BONDED AGENT'S RECORDS. (a) Each bonded
agent shall keep, at each place of business in this state, records
of all tobacco products received, distributed, and delivered.
(b) The records must include:
(1) invoices for receipts and deliveries;
(2) orders for receipts and deliveries;
(3) shipping records for receipts and deliveries; and
(4) shipping records for distribution or delivery.
Acts 1981, 67th Leg., p. 1676, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 409, § 51, eff. June 7,
1991.
§ 155.110. AVAILABILITY OF RECORDS. (a) Each permit
holder shall keep records available for inspection and copying by
the comptroller and the attorney general for four years.
(b) If a permit holder's place of business is a vehicle or
vending machine, the permit holder shall designate in the
application for a permit a permanent place of business to keep the
records. The permit holder shall keep the records in the designated
place.
(c) Each permit holder who is required to keep records under
this chapter shall provide the comptroller with copies of the
records on demand.
Acts 1981, 67th Leg., p. 1676, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 38, eff. March 1,
1986; Acts 1989, 71st Leg., ch. 240, § 73, eff. Oct. 1, 1989;
Acts 1991, 72nd Leg., ch. 409, § 51, eff. June 7, 1991; Acts
1997, 75th Leg., ch. 1423, § 19.90, eff. Sept. 1, 1997; Acts
2001, 77th Leg., ch. 540, § 6, eff. Sept. 1, 2001.
§ 155.111. DISTRIBUTOR'S REPORT. (a) A distributor
shall file with the comptroller on or before the last day of each
month, a report for the preceding month.
(b) The report must show:
(1) the date the report was made;
(2) the distributor's name and address;
(3) the month the report covers;
(4) the amount of tobacco products purchased,
received, and acquired;
(5) the manufacturer's list price of tobacco products
purchased, received, and acquired;
(6) the amount of tobacco products sold, distributed,
used, lost, or otherwise disposed of;
(7) the amount of tobacco products on hand at the
beginning and the end of the month; and
(8) any other information the comptroller requires
relating to tobacco products and to the payment of taxes due on
them.
(c) The comptroller shall prescribe the form and content of
the report.
(d) If more than 50 percent of all untaxed tobacco products
received by the distributor in this state are actually sold outside
of this state, the distributor shall include in the report only
tobacco products that are sold in this state.
Acts 1981, 67th Leg., p. 1677, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 74, eff. Oct. 1,
1989; Acts 1991, 72nd Leg., ch. 409, § 51, eff. June 7, 1991;
Acts 1997, 75th Leg., ch. 1040, § 49, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1423, § 19.91, eff. Sept. 1, 1997; Acts
1999, 76th Leg., ch. 1467, § 2.45, eff. Oct. 1, 1999; Acts 2001,
77th Leg., ch. 1263, § 54, eff. Oct. 1, 2001.
§ 155.112. FAILURE TO PRODUCE RECORDS. (a) A person's
failure to produce the records required by this subchapter or a
person's inability to provide other proof of tax payment, on demand
by the comptroller, is prima facie evidence that tobacco products
possessed by the person were received for the purpose of making a
first sale without payment of the tax imposed by this chapter.
(b) This section does not apply to a person who possesses
tobacco products on which a tax of less than $50 is due, as provided
by Section 155.022.
(c) This section does not apply to a failure to produce
records or provide other proof of tax payment under Subsection (a)
if the failure results from an occurrence beyond the person's
control.
Added by Acts 1991, 72nd Leg., ch. 409, § 52, eff. June 7, 1991.
Amended by Acts 1997, 75th Leg., ch. 1423, § 19.92, eff. Sept. 1,
1997.
SUBCHAPTER E. ENFORCEMENT OF TAX
§ 155.141. DONATIONS. The comptroller may accept
gifts, grants, and donations for the administration and enforcement
of this chapter.
Added by Acts 1989, 71st Leg., ch. 240, § 75, eff. Oct. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1040, § 50, Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1423, § 19.93, eff. Sept. 1, 1997.
§ 155.143. SEIZURE. (a) The comptroller with or
without process may seize:
(1) tobacco products taxed under this chapter that are
possessed or controlled by a person for the purpose of selling or
removing the tobacco products in violation of this chapter;
(2) tobacco products that are removed, deposited, or
concealed by a person intending to avoid payment of taxes imposed by
this chapter;
(3) an automobile, truck, boat, conveyance, or other
type of vehicle used to remove or transport tobacco products by a
person intending to avoid payment of taxes imposed by this chapter;
and
(4) equipment, paraphernalia, or other tangible
personal property used by a person intending to avoid payment of
taxes imposed by this chapter found in the place where the tobacco
products are found.
(b) An item seized under this section is forfeited to the
state and remains in the custody of the comptroller for disposition
as provided by this chapter. The seized item is not subject to
replevin.
Acts 1981, 67th Leg., p. 1678, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 76, eff. Oct. 1,
1989; Acts 1991, 72nd Leg., ch. 409, § 53, eff. June 7, 1991;
Acts 1997, 75th Leg., ch. 1423, § 19.94, eff. Sept. 1, 1997.
§ 155.144. COMPTROLLER'S REPORT. (a) If the
comptroller seizes property under Section 155.143, the comptroller
shall immediately make a written report showing:
(1) the name of the person making the seizure;
(2) the place where the property was seized;
(3) the person from whom the property was seized; and
(4) an inventory of the property seized.
(b) The comptroller shall prepare the report in duplicate.
The person who seized the property shall sign the report. The
comptroller shall give the original to the person from whom the
property was seized and shall file a duplicate copy open for public
inspection in the comptroller's office.
Acts 1981, 67th Leg., p. 1678, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 77, eff. Oct. 1,
1989; Acts 1991, 72nd Leg., ch. 409, § 54, eff. June 7, 1991;
Acts 1997, 75th Leg., ch. 1423, § 19.95, eff. Sept. 1, 1997.
§ 155.1445. SALE OF SEIZED TOBACCO
PRODUCTS. (a) Tobacco products are perishable items.
(b) If the seized tobacco products are in a salable
condition, the comptroller may sell the tobacco products, return
the tobacco products to the manufacturer for credit, or destroy or
dispose of the tobacco products.
(c) The price obtained at the sale is the market value for
the tobacco products sold.
(d) The comptroller shall place the proceeds from the sale
of seized tobacco products in escrow in a treasury suspense
account, pending the outcome of the forfeiture proceeding provided
for in this chapter.
(e) If a determination is made that the comptroller
wrongfully seized the tobacco products, the person entitled to the
tobacco products at the time of seizure may recover the money held
in escrow in the treasury suspense account.
Added by Acts 1991, 72nd Leg., ch. 409, § 55, eff. June 7, 1991.
Amended by Acts 1997, 75th Leg., ch. 1423, § 19.96, eff. Sept. 1,
1997.
§ 155.145. FORFEITURE PROCEEDING. (a) The owner of
property seized under this chapter is entitled to written notice of
the seizure.
(b) The comptroller shall give the notice by certified mail,
return receipt requested, not later than the 15th day after the date
of seizure and shall include with the notice an inventory of the
property seized and a statement that the owner of property seized is
entitled to a hearing on the seizure. Service by mail is complete
when the notice is received, as evidenced by return receipt from the
U.S. Postal Service.
(c) After providing the notice and a hearing, if a hearing
is requested under Subsection (b), the comptroller may order the
forfeiture to the state of any property seized under this chapter or
the proceeds of the sale of any tobacco products seized under this
chapter if the comptroller finds that the property was used,
controlled, possessed, or concealed for the purpose of violating
any provision of this chapter.
(d) The comptroller shall hold property or proceeds
forfeited under this section in escrow until the comptroller's
determination is final and the period for filing a petition for
judicial review has expired.
Acts 1981, 67th Leg., p. 1679, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 78, eff. Oct. 1,
1989; Acts 1991, 72nd Leg., ch. 409, § 56, eff. June 7, 1991;
Acts 1997, 75th Leg., ch. 1040, § 51, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1423, § 19.97, eff. Sept. 1, 1997.
§ 155.1451. DISPOSITION OF FORFEITED
PROPERTY. (a) The comptroller may sell property forfeited to the
state at public or private sale in any commercially reasonable
manner.
(b) Subject to the provisions of Section 155.153, the
comptroller shall deposit the sale proceeds, less expenses of
seizure, court costs, and any investigation and audit costs, in the
state treasury.
(c) The comptroller shall use the sale proceeds to operate
and administer the tobacco products tax program up to the amount
appropriated by the legislature for this purpose. The comptroller
shall allocate any sale proceeds that exceed the legislative
appropriation as provided by Subchapter H. Any unused
appropriations remain in the general revenue fund.
Added by Acts 1991, 72nd Leg., ch. 409, § 57, eff. June 7, 1991.
Amended by Acts 1997, 75th Leg., ch. 1423, § 19.98, eff. Sept. 1,
1997.
§ 155.150. SEIZURE OR SALE NO DEFENSE. The seizure,
forfeiture, and sale of tobacco products or property under this
chapter, with or without court action, is not a defense to criminal
prosecution for an offense or from liability for a penalty under
this chapter.
Acts 1981, 67th Leg., p. 1680, ch. 389, § 1, eff. Jan. 1, 1982.
§ 155.151. WAIVER PERMITTED. (a) The comptroller may
waive a forfeiture proceeding for property seized under Section
155.143 of this code if the owner or possessor of the property:
(1) pays the tax due; and
(2) pays to the state through the comptroller an
additional sum equal to the tax due.
(b) The comptroller may make a compromise with a person
before or after a claim is filed in court. The comptroller shall
keep a record open for public inspection of compromises and waivers
of forfeiture made under this section.
Acts 1981, 67th Leg., p. 1680, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 81, eff. Oct. 1,
1989; Acts 1997, 75th Leg., ch. 1423, § 19.99, eff. Sept. 1,
1997.
§ 155.152. PAYMENT TO TREASURY. The comptroller shall
deposit all taxes collected under this chapter, after payment of
costs, in the treasury to be allocated as provided by Subchapter H.
Acts 1981, 67th Leg., p. 1680, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 82, eff. Oct. 1,
1989; Acts 1991, 72nd Leg., ch. 409, § 58, eff. June 7, 1991;
Acts 1997, 75th Leg., ch. 1423, § 19.100, eff. Sept. 1, 1997.
§ 155.153. PREFERRED STATE TAX LIEN. (a) All taxes,
fines, interest, penalties, and costs due under this chapter are
secured by a preferred lien in favor of the state, first and prior
to all other existing or future liens, contractual or statutory,
legal or equitable, regardless of the time the lien originated, on
any property seized and forfeited under this chapter.
(b) A lienholder who establishes an interest in the property
is entitled to recover any proceeds remaining after payment of all
taxes, interest, penalties, and costs due to the state.
Added by Acts 1991, 72nd Leg., ch. 409, § 59, eff. June 7, 1991.
§ 155.154. DONATIONS. The comptroller may accept
gifts, grants, and donations for the administration and enforcement
of this chapter.
Added by Acts 1991, 72nd Leg., ch. 409, § 59, eff. June 7, 1991.
Amended by Acts 1997, 75th Leg., ch. 1423, § 19.101, eff. Sept.
1, 1997.
§ 155.155. RECIPROCAL AGREEMENTS. (a) The comptroller
may enter into a reciprocal agreement with a tax official of another
state or an official of the United States allowing the exchange of
information received by, recorded by, prepared by, furnished to, or
collected by the comptroller with respect to the investigation and
enforcement of this chapter for any tax, penalty, interest, fine,
forfeiture, or offense.
(b) This section does not permit the exchange of information
made confidential by this chapter.
Added by Acts 1991, 72nd Leg., ch. 409, § 59, eff. June 7, 1991.
Amended by Acts 1997, 75th Leg., ch. 1423, § 19.102, eff. Sept.
1, 1997.
SUBCHAPTER F. ADMINISTRATION BY COMPTROLLER
§ 155.181. COMPLIANCE INVESTIGATION AND RECOVERY OF
COSTS. (a) If the comptroller has reason to believe that a person
has failed to pay a tax or penalty in the proper manner when due or
otherwise failed to comply with this chapter, the comptroller may
employ auditors and investigators to determine compliance and any
amount due. If the comptroller determines that the person has not
paid the tax or penalty or has failed to comply with this chapter,
the comptroller may require the person to pay the reasonable
expenses incurred in the compliance investigation and audit as an
additional penalty.
(b) The comptroller shall deposit funds paid under this
section to the credit of the general revenue fund in the treasury to
be used for making audits, conducting investigations, or as
otherwise appropriated. The comptroller may use other funds
available for audits as appropriated by the legislature.
Acts 1981, 67th Leg., p. 1681, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 83, eff. Oct. 1,
1989; Acts 1991, 72nd Leg., ch. 409, § 61, eff. June 7, 1991;
Acts 1995, 74th Leg., ch. 1000, § 52, eff. Oct. 1, 1995; Acts
1997, 75th Leg., ch. 1423, § 19.104, eff. Sept. 1, 1997.
§ 155.182. PAYMENT OF DOUBLE AMOUNT. (a) If the
comptroller finds that a person has sold tobacco products without
the tax having been paid, the comptroller may require the person to
pay the state through the comptroller a sum equal to twice the
amount of tax due.
(b) If a person does not furnish the comptroller with any
evidence showing payment of the tax on tobacco products purchased
by the person, it is presumed that the tobacco products were sold
without reporting and paying the tax.
Acts 1981, 67th Leg., p. 1681, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 84, eff. Oct. 1,
1989; Acts 1991, 72nd Leg., ch. 409, § 62, eff. June 7, 1991;
Acts 1997, 75th Leg., ch. 1423, § 19.105, eff. Sept. 1, 1997.
§ 155.183. INSPECTION. (a) To determine the tax
liability of a person dealing in tobacco products or compliance by
the person with this chapter, the comptroller may:
(1) inspect any premises, including a vending machine
and its contents, where tobacco products are manufactured,
produced, stored, transported, sold, or offered for sale or
exchange;
(2) remain on the premises as long as necessary to
determine the tax liability or compliance with this chapter;
(3) examine the records required by this chapter or
other records, books, documents, papers, accounts, and objects that
the comptroller determines are necessary for conducting a complete
examination; and
(4) examine stocks of tobacco products.
(b) A person dealing in tobacco products may not:
(1) fail to produce, on the comptroller's demand,
records required by this chapter; or
(2) hinder or prevent the inspection of records or the
examination of the premises.
Acts 1981, 67th Leg., p. 1681, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 85, eff. Oct. 1,
1989; Acts 1991, 72nd Leg., ch. 409, § 63, eff. June 7, 1991;
Acts 1995, 74th Leg., ch. 1000, § 53, eff. Oct. 1, 1995; Acts
1997, 75th Leg., ch. 1423, § 19.106, eff. Sept. 1, 1997.
§ 155.184. CREDIT FOR TAX PAID. (a) The comptroller
may adopt rules providing for a credit or refund for tax paid on
tobacco products if the tobacco products have become unfit for use
or consumption or unsalable.
(b) The comptroller may not allow a credit or refund under
this section unless the comptroller is satisfied that the tobacco
products are unfit for use or consumption or unsalable or have been
returned to the manufacturer.
Acts 1981, 67th Leg., p. 1682, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 86, eff. Oct. 1,
1989; Acts 1991, 72nd Leg., ch. 409, § 63, eff. June 7, 1991;
Acts 1997, 75th Leg., ch. 1423, § 19.107, eff. Sept. 1, 1997.
§ 155.185. DEFICIENCY DETERMINATION, PENALTIES, AND
INTEREST. (a) If the comptroller has reasonable cause to believe
that a tax report or the amount of tax is inaccurate, the
comptroller may compute and determine the amount of tax, penalty,
and interest to be paid from information contained in the report or
from any other information available to the comptroller.
(b) On making a deficiency determination, the comptroller
shall notify the person by personal service or by mail. Service by
mail is complete when the notice is deposited with the U.S. Postal
Service.
Added by Acts 1991, 72nd Leg., ch. 409, § 64, eff. June 7, 1991.
Amended by Acts 1995, 74th Leg., ch. 1000, § 54, eff. Oct. 1,
1995; Acts 1997, 75th Leg., ch. 1423, § 19.108, eff. Sept. 1,
1997; Acts 1999, 76th Leg., ch. 1467, § 2.46, eff. Oct. 1, 1999.
§ 155.186. REDETERMINATION. (a) A person who receives
notice of a deficiency determination may submit a written request
to the comptroller for redetermination. If the person desires a
hearing, the request for a hearing must be included in the written
request for redetermination.
(b) A written request for redetermination must be filed at
the office of the comptroller not later than the 30th day after the
date notice of deficiency is issued. If a written request for
redetermination is not filed as required by this subsection, the
determination is final.
(c) On receipt of a written request for redetermination, the
comptroller shall:
(1) review the request for redetermination if a
hearing was not requested; or
(2) provide the person against whom the deficiency
determination was made with written notice of the time, place, and
date of a redetermination hearing.
(d) The comptroller shall give notice of a redetermination
hearing by personal service or by mail. Service by mail is complete
when the notice is deposited with the U.S. Postal Service.
Added by Acts 1991, 72nd Leg., ch. 409, § 64, eff. June 7, 1991.
Amended by Acts 1997, 75th Leg., ch. 1423, § 19.109, eff. Sept.
1, 1997; Acts 1999, 76th Leg., ch. 1467, § 2.47, eff. Oct. 1,
1999.
SUBCHAPTER G. PENALTIES
§ 155.201. PENALTIES. (a) A person violates this
chapter if the person:
(1) is a distributor, wholesaler, manufacturer,
importer, bonded agent, manufacturer's representative, or retailer
and fails to keep records required by this chapter;
(2) engages in the business of a bonded agent,
distributor, wholesaler, manufacturer, importer, or retailer
without a valid permit;
(3) is a distributor, wholesaler, manufacturer,
importer, bonded agent, or retailer and fails to make a report
required by this chapter to the comptroller or makes a false or
incomplete report or application required by this chapter to the
comptroller; or
(4) is a person affected by this chapter and fails or
refuses to abide by or violates a provision of this chapter or a
rule adopted by the comptroller under this chapter.
(b) A person who violates this chapter forfeits and shall
pay to the state a penalty of not more than $2,000 for each
violation.
(c) A separate offense is committed each day on which a
violation occurs.
(d) The attorney general shall bring suits to recover
penalties under this section.
(e) A suit under this section may be brought in a court of
competent jurisdiction in Travis County or in any court having
jurisdiction.
Acts 1981, 67th Leg., p. 1682, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 41, eff. March 1,
1986; Acts 1989, 71st Leg., ch. 240, § 87, eff. Oct. 1, 1989;
Acts 1991, 72nd Leg., ch. 409, § 65, eff. June 7, 1991; Acts
1997, 75th Leg., ch. 1423, § 19.110, eff. Sept. 1, 1997; Acts
2001, 77th Leg., ch. 1263, § 55, eff. Oct. 1, 2001.
§ 155.202. NONPAYMENT OF TAX. A person commits an
offense if the person, without the tax being paid:
(1) receives or possesses in this state tobacco
products for the purpose of making a first sale;
(2) sells, offers for sale, or presents tobacco
products as a prize or gift; or
(3) knowingly consumes, uses, or smokes tobacco
products in an amount on which a tax of more than $50 is due.
Acts 1981, 67th Leg., p. 1683, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 409, § 66, eff. June 7,
1991.
§ 155.203. POSSESSION: TAX DUE $50 OR LESS. (a) A
person commits an offense if the person possesses, in violation of
this chapter, tobacco products on which a tax of $50 or less is
required to be paid. The absence of evidence of tax payment is
notice that the tax has not been paid and is prima facie evidence of
nonpayment.
(b) This section does not prohibit transportation of
tobacco products by a common carrier.
Acts 1981, 67th Leg., p. 1683, ch. 389, § 1, eff. Jan. 1, 1982.
§ 155.204. CONCEALMENT OF VIOLATION. A person commits
an offense if the person uses any artful device or deceptive
practice to conceal a violation of this chapter.
Acts 1981, 67th Leg., p. 1683, ch. 389, § 1, eff. Jan. 1, 1982.
§ 155.205. MISLEADING THE COMPTROLLER. A person
commits an offense if the person misleads the comptroller in the
enforcement of this chapter.
Acts 1981, 67th Leg., p. 1683, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 88, eff. Oct. 1,
1989; Acts 1997, 75th Leg., ch. 1423, § 19.111, eff. Sept. 1,
1997.
§ 155.206. REFUSING TO SURRENDER TOBACCO PRODUCTS. A
person commits an offense if the person refuses to surrender to the
comptroller on demand tobacco products possessed in violation of
this chapter.
Acts 1981, 67th Leg., p. 1683, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1989, 71st Leg., ch. 240, § 89, eff. Oct. 1,
1989; Acts 1997, 75th Leg., ch. 1423, § 19.112, eff. Sept. 1,
1997.
§ 155.207. PERMITS. A person commits an offense if the
person:
(1) as a distributor, wholesaler, or retailer,
receives or possesses tobacco products without having a valid
permit;
(2) as a distributor, wholesaler, or retailer,
receives or possesses tobacco products without having a permit
posted where it can be easily seen by the public;
(3) as a distributor or wholesaler, does not deliver
an invoice to the purchaser as required by Section 155.102;
(4) as a distributor, wholesaler, or retailer, sells
tobacco products without having a valid permit; or
(5) as a bonded agent, stores, distributes, or
delivers tobacco products on which the tax has not been paid without
having a valid permit.
Acts 1981, 67th Leg., p. 1683, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 42, eff. March 1,
1986; Acts 1991, 72nd Leg., ch. 409, § 67, eff. June 7, 1991.
§ 155.2075. FINGERPRINTS. The comptroller may refuse
to grant a permit or may revoke or suspend a permit if the applicant
or permit holder fails, on request, to provide a complete set of
fingerprints required for searching the Federal Bureau of
Investigation Identification Division files.
Added by Acts 1991, 72nd Leg., ch. 409, § 67, eff. June 7, 1991.
Amended by Acts 1993, 73rd Leg., ch. 790, § 46(21), eff. Sept. 1,
1993; Acts 1997, 75th Leg., ch. 1423, § 19.113, eff. Sept. 1,
1997.
§ 155.208. MISDEMEANOR. An offense under Sections
155.202-155.207 is a Class A misdemeanor.
Acts 1981, 67th Leg., p. 1684, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 409, § 67, eff. June 7,
1991.
§ 155.209. TRANSPORTATION OF TOBACCO PRODUCTS. A
person commits an offense if the person:
(1) knowingly transports tobacco products taxed under
this chapter without the tax being paid;
(2) wilfully refuses to stop a motor vehicle operated
to transport tobacco products after a request to stop from an
authorized representative of the comptroller; or
(3) while transporting tobacco products, refuses to
permit a complete inspection of the cargo by an authorized
representative of the comptroller.
Acts 1981, 67th Leg., p. 1684, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 409, § 67, eff. June 7,
1991; Acts 1997, 75th Leg., ch. 1423, § 19.114, eff. Sept. 1,
1997.
§ 155.210. INSPECTION OF PREMISES. A person commits an
offense if the person refuses to permit a complete inspection by an
authorized representative of the comptroller of any premises where
tobacco products are manufactured, produced, stored, transported,
sold, or offered for sale or exchange or fails to produce, on the
comptroller's demand, records required by this chapter.
Acts 1981, 67th Leg., p. 1684, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 409, § 67, eff. June 7,
1991; Acts 1997, 75th Leg., ch. 1423, § 19.115, eff. Sept. 1,
1997.
§ 155.211. POSSESSION: TAX DUE MORE THAN $50. (a) A
person commits an offense if the person possesses, in violation of
this chapter, tobacco products on which a tax of more than $50 is
required to be paid.
(b) This section does not prohibit transportation of
tobacco products by a common carrier.
Acts 1981, 67th Leg., p. 1684, ch. 389, § 1, eff. Jan. 1, 1982.
§ 155.212. BOOKS AND RECORDS. A person commits an
offense if the person:
(1) knowingly makes, delivers to, and files with the
comptroller a false return or an incomplete return or report;
(2) knowingly fails to make and deliver to the
comptroller a return or report as required by this chapter;
(3) destroys, mutilates, or conceals a book or record
required by this chapter;
(4) refuses to permit the attorney general or the
comptroller to inspect and audit books and records that are
required by this chapter or that are incidental to the conduct of
the tobacco products business;
(5) knowingly makes a false entry or fails to make
entries in the books and records required by this chapter; or
(6) fails to keep books and records for four years as
required by this chapter.
Acts 1981, 67th Leg., p. 1684, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1985, 69th Leg., ch. 58, § 43, eff. March 1,
1986; Acts 1989, 71st Leg., ch. 240, § 90, eff. Oct. 1, 1989;
Acts 1991, 72nd Leg., ch. 409, § 68, eff. June 7, 1991; Acts
1995, 74th Leg., ch. 1000, § 55, eff. Oct. 1, 1995; Acts 1997,
75th Leg., ch. 1423, § 19.116, eff. Sept. 1, 1997.
§ 155.213. FELONY. An offense under Sections
155.209-155.212 is a felony of the third degree.
Acts 1981, 67th Leg., p. 1684, ch. 389, § 1, eff. Jan. 1, 1982.
Amended by Acts 1991, 72nd Leg., ch. 409, § 68, eff. June 7,
1991.
§ 155.214. OVERLAP OF PENALTIES. If an offense is
punishable under Section 155.208 of this code and also under
Section 155.213 of this code, the punishment prescribed by Section
155.213 of this code controls.
Acts 1981, 67th Leg., p. 1685, ch. 389, § 1, eff. Jan. 1, 1982.
§ 155.215. VENUE FOR FELONY. Venue of a prosecution for
an offense punishable under Section 155.213 of this code is in
Travis County or in the county where the offense occurred.
Acts 1981, 67th Leg., p. 1685, ch. 389, § 1, eff. Jan. 1, 1982.
SUBCHAPTER H. ALLOCATION OF TAX
§ 155.241. ALLOCATION OF TAX. Revenue collected under
this chapter shall be deposited to the credit of the general revenue
fund.
Acts 1981, 67th Leg., p. 1685, ch. 389, § 1, eff. Jan. 1, 1982.
