|November 2010||TAX POLICY NEWS|
|a monthly newsletter about Texas tax policy|
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Pass-Through Entities Allowed Oil and Gas Depletion as Cost of Goods Sold (COGS)
We have received many questions about the eligibility of pass-through entities, such as partnerships and S corporations, to include oil and gas depletion costs as COGS. Depletion, as reported on the federal income tax return, is allowed as COGS to the extent associated with, and necessary for, the production of goods under Texas Tax Code Section 171.1012(c)(6).
A pass-through entity may include as COGS the depletion costs incurred and reported to its owners for federal tax purposes. The owners of a pass-through entity, however, may not include the depletion reported to them as COGS. Rule 3.588(d)(6) will be amended to reflect this policy.FRANCHISE TAX
Franchise Tax and the Automotive Repair Industry
In recent months, we have discussed the franchise tax as it relates to different industries. This month's article highlights the automotive repair industry.
The tax rate is 1 percent for entities in the automotive repair industry as described in Division I, Services, Major Group 75, Automotive Repair, Services, and Parking, of the Standard Industrial Classification (SIC) Manual. An entity that sells auto parts from a retail establishment that also provides automotive repair services must compare the total revenue received from retail sales to the total revenue received from the automotive repair business (both parts and labor) in order to determine the tax rate under Texas Tax Code Section 171.002. The parts and supplies sold as part of the automotive repair are not considered retail sales.
Cost of Goods Sold (COGS) Deduction
A deduction for COGS is generally only allowed on sales of tangible personal property or real property in the ordinary course of business. As defined in Texas Tax Code Section 171.1012(a)(3), tangible personal property does not include services. Entities engaged in the automotive repair business are providing a service and are not eligible to subtract COGS for repair services. However, since an automotive repair business does sell parts as a part of the repair service, these businesses are allowed to deduct the cost of the parts sold as part of the repair service, if the entity elects to subtract COGS to determine margin. The labor to replace the parts and any other repair labor is not allowed as a cost of goods sold.
An entity provides general automotive repair services as described in Industry Number 7538, General Automotive Repair Shops, of the SIC Manual. This entity is not eligible for the 0.5 percent tax rate because its activities are described in Division I, Services, (and not in Division F or G) of the SIC Manual.
If this entity chooses to deduct COGS in determining its margin, only the allowable costs related to tangible personal property sold can be included in the deduction. The labor costs for the repair services cannot be included in the COGS deduction.
An entity sells auto parts from a retail establishment and also provides automotive repair services such as oil changes, tire rotations, wheel alignments, etc. To determine if this entity is eligible for the 0.5 percent tax rate, the total revenue received from retail sales must be compared to the total revenue received from automotive repair services (which includes revenue from both the sale of parts and labor). If the total revenue from retail sales is greater than the total revenue from automotive repair services, the entity is eligible for the 0.5 percent rate.
The COGS deduction for this entity includes the allowable costs as specified in Texas Tax Code Section 171.1012 for the retail sales and also for the sale of any parts (tangible personal property) included in the automotive repair services. The labor costs for the automotive repair services, however, cannot be included in the COGS deduction.Example 3
A car dealership sells new automobiles and also provides automotive repair services. To determine if this entity is eligible for the 0.5 percent tax rate, the total revenue received from the retail sale of automobiles must be compared to the total revenue received from automotive repair services (revenue from the sale of parts and labor). If total revenue from retail sales is greater than the total revenue from automotive repair services, the entity is eligible for the 0.5 percent rate, if it meets the requirements of Texas Tax Code Section 171.002(c).
The COGS deduction for this entity includes the allowable costs as specified in Texas Tax Code Section 171.1012 for the retail sale of automobiles and also for the sale of any parts (tangible personal property) included in the automotive repair services. The labor costs for the automotive repair services, however, cannot be included in the COGS deduction.HOTEL OCCUPANCY TAX
Fee Charged by Hotel to Change Reservation on Prepaid Room
A policy among some hotel chains is to charge a fee for a guest to modify a prepaid reservation. For instance, a hotel will charge a $25 fee to change the dates of a prepaid reservation. A fee may also be charged to allow a prepaid guest to move the reservation to another hotel property within the corporation's same family of brands.
STAR document 201007850L describes how a hotel must account for a changed reservation fee on prepaid rooms.
Shifting Occupancy Dates
When a prepaid guest requests to shift occupancy dates and will be staying at the same hotel property, hotel occupancy tax is due on the changed reservation fee. The fee is directly related to occupancy of the room; therefore, hotel tax is due on the charge. See Rule 3.162.
Moving to Another Hotel Property
When a prepaid guest moves to another hotel property, the hotel that held the original reservation will treat the fee to move properties as a cancellation fee in its records. If a prepaid guest changes the reservation within 30 days of the date of arrival and also pays the hotel, in total, the amount necessary to have occupied the room, hotel occupancy tax is due on the changed reservation fee.
On the other hand, hotel occupancy tax is not due if the fees charged to move to another hotel property is less than the reserved room rate. Also, tax is not due if the request to move hotel properties is more than 30 days from the scheduled stay, no matter the amount of fees paid by the guest. See Comptroller Decisions 24,654 and 40,676.INSURANCE TAX
Workers' Compensation: Certified Self-Insurers and Certified Self-Insurance Groups
The Texas Legislature has authorized two programs of self-insurance: the Certified Self-Insurers and the Certified Self-Insurance Groups. These programs are authorized under the Texas Labor Code and are regulated by the Texas Department of Insurance (TDI). The taxation of each program, however, is distinctly different.
Certified self-insurers were authorized to allow qualified private employers with operations in Texas to self-insure for their workers' compensation losses. The enabling statute is found in Title 5, Chapter 407 of the Texas Labor Code. The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) Self-Insurance Regulation (SIR) regulates this program. If approved as a certified self-insurer (CSI), the company receives a certificate of authority and is permitted to pay its own workers' compensation losses.
Certified self-insurers pay a regulatory fee and two maintenance taxes directly to the Texas Department of Insurance at the time of certification. The Comptroller does not collect any taxes or fees directly from the CSIs.
Certified Self-Insurance Groups
Certified self-insurance groups were authorized in the Texas Legislature's 2003 regular session in House Bill 2095. These groups must meet specific requirements for certification under Chapter 407A of the Texas Labor Code. Generally consisting of an unincorporated association or business trust composed of five or more private employers, these groups agree to pool their liabilities for workers' compensation benefits and employers' liability in Texas. The employers must be engaged in the same or a similar type of business and must be members of a bona fide trade or professional association that has been in existence in the state for at least five years for purposes other than insurance.
These groups are subject to taxation and report all taxes and fees yearly to the Comptroller. Each certified self-insurance group must pay a maintenance tax for administration of the Division of Workers' Compensation and Office of Injured Employee Counsel, prosecution of workers' compensation insurance fraud, workers' compensation research functions performed by the Texas Department of Insurance and the department's administrative costs incurred in regulating workers' compensation coverage in Texas. In addition, a certified self-insurance group must pay a premium tax based on gross premiums for the group's retention.
Since the Office of Public Insurance Counsel (OPIC) assessment applies only to an insurer authorized to engage in business in this state, the certified self-insurance groups are not subject to the OPIC assessment.MOTOR VEHICLE TAX
Hearings Summary: Exported Motor Vehicles Registered in Texas
Hearing Nos. 102,439 and 103,019 through 103,024 (2010)
Taxpayers claimed a refund of motor vehicle tax paid in error based on the out-of-state use exemption provided in Texas Tax Code Section 152.092. This exemption requires that a vehicle's use in Texas be limited to its removal from the state. In these hearings, all vehicles were registered in Texas.
Taxpayers contended their purchases were eligible for the exemption and provided export shipping documents. They did not, however, provide mileage documentation or other records indicating no use in Texas.
The Comptroller contended the taxpayers failed to demonstrate that the vehicles were not used in Texas prior to their export from the state. Documentation indicated the vehicles were purchased approximately six to eight weeks prior to their commitment to shipment.
The Administrative Law Judge noted the units were registered in Texas and that Rule 3.90(a)(3), provides the registration of a motor vehicle in Texas creates the presumption that the motor vehicle is for use in Texas. Taxpayers failed to rebut the presumption of use in Texas. The refund requests were denied.SALES TAX
Consumables Used in Construction Contracts
Contractors and nonresidential repair or remodeling service providers must pay or accrue tax on all machinery and equipment that is purchased, leased or rented for use on a project, including projects performed under contracts with exempt organizations and governmental entities. Equipment includes items such as cranes, scaffolding, paint brushes, drilling bits, blades and tools.
Similarly, consumables used in construction contracts are generally, but not always, taxable to the purchaser at the time of sale. This is true of new construction and either residential or nonresidential repair and remodeling work. See Rule 3.291(b)(2), related to contractors, and Rule 3.357(b)(4) and (e)(1), related to nonresidential repair and remodeling.
"Consumables" include such things as masking tape, corrugated cardboard, paint pot liners, steel strapping, sandpaper and trash can liners, but do not include items that are incorporated into realty such as mortar, bricks, nails and caulk. Consumables are defined in Rule 3.291(a)(2) and Rule 3.357(a)(1). The definitions are substantially similar. Rule 3.291 defines them as:
"Nondurable tangible personal property that is used to improve realty and, after being used once for its intended purpose, is completely used up or destroyed. Examples of consumable items are nonreusable concrete forms, nonreusable drop cloths, barricade tape, natural gas, and electricity. The term 'consumable item' does not include machinery, equipment, accessories to machinery or equipment, repair or replacement parts for machinery or equipment, or any rented or leased item."
Thus, consumables are items used or consumed by a contractor or service provider on a construction project, as opposed to incorporated materials, which are annexed to the realty and become a part of the property.
For example, the material in a welding rod which goes into the joint in a building's structural steel becomes incorporated into the realty. The gas used to make the weld, however, is merely consumed in the process of welding, and so it is not incorporated into the realty. See STAR letter 200904300L.
While consumables used in construction are usually taxable, there are two exceptions that can apply.
A contractor may issue a properly completed resale certificate to a supplier in lieu of tax for consumable items if the contractor is operating under a separated contract that specifically provides that title to the consumables will pass to the contractor's customer upon receipt of the items by the contractor, and if no use of the items is made by the contractor prior to passage of title to the property to the customer. See Rule 3.291(b)(2) (B).
Contractors, for Texas sales tax purposes, are only those persons performing residential repair and remodeling or new construction (either residential or non-residential) projects. See Rule 3.291.
Persons who repair, restore or remodel nonresidential real property are providing a taxable service. See Rule 3.357.Service providers may not claim the resale exemption for consumables provided in Rule 3.291, and, except as discussed in the following paragraph, owe tax at the time of purchase on all machinery, equipment, materials and supplies that are used but not incorporated into the realty.
Nonresidential repair and remodeling service providers, as well as contractors and subcontractors, may, however, claim an exemption under Texas Tax Code Section 151.311 on the purchase of qualifying consumables for use in a contract to improve realty for an organization exempted under Texas Tax Code Sections 151.309 or 151.310. Organizations exempted under Section 151.309 include the state; the federal government; or a Texas city, county or other political subdivision (e.g., school district). Examples under Section 151.310 include a church, charity, school or other organization that has been issued a letter of exemption by the Comptroller.
The exemption in Section 151.311 applies to both new construction and nonresidential repair and remodeling projects performed for qualifying entities. Moreover, the exemption does not depend upon the type of contract (i.e., lump sum or separated) in either case.
Nevertheless, the use of the consumables determines whether they will be exempt under Section 151.311. First, they must be necessary and essential to the performance of the exempt contract. Second, they must be completely consumed at the job site (used up or destroyed after being used just once for their intended purpose). See Rule 3.291(c)(4), Rule 3.357(b)(5) and Tax Code Section 151.311.
Although the statute requires consumables to be "used up or destroyed" after a single use on the job site, this does not preclude subsequent ancillary uses, such as removing plastic barricade tape so it can be recycled into non-construction products.SALES TAX
Energy Drinks: Food, Soft Drink or Dietary Supplement?
The taxability of energy drinks can be quite confusing. Are they taxable as soft drinks or exempt as dietary supplements or food? How an energy drink is labeled is the first indicator used to determine its taxability.
Nutrition Facts Panel — Food or Soft Drink?
If an energy drink is labeled with a Nutrition Facts panel, then it is either food or a soft drink.
"Soft drinks" are defined in Rule 3.293 as carbonated and non-carbonated, non-alcoholic beverages that contain natural or artificial sweeteners. Soft drinks do not include beverages that contain milk or milk products; soy, rice, or similar milk substitutes; or juices that contain more than 50 percent vegetable or fruit juice by volume. The term also does not include unflavored water, spring water, sparkling water or mineral water. Flavored water, however, is considered a soft drink.
Soft drinks are taxable. Therefore, tax is due on energy drinks meeting the definition of soft drinks.
Energy drinks labeled with a nutrition facts panel that contain coffee, tea, milk or more than 50 percent fruit or vegetable juice by volume are food, as defined in Rule 3.293. A drink meeting the definition of food is not taxable unless sold in an individual-sized container of eight ounces or less (such as a juice box or half-pint carton of milk) by a seller who provides eating facilities (seats/tables); or sold ready for immediate consumption such as with a meal or served in a cup or glass or with a straw, if eating facilities are not provided.
An "individual-sized beverage" is a bottle or carton of a half-pint (8 ounces) or less. Bottles or cartons greater than a half-pint, that are more than 50 percent fruit or vegetable juice by volume, or that contain milk, milk products or milk substitutes, are exempt from sales and use tax when sold by a retailer providing eating facilities, unless sold ready for immediate consumption.
Supplement Facts Panel or Labeled as Dietary Supplement
Dietary supplements are exempt from Texas sales and use tax. Therefore, if an energy drink meets the definition of a dietary supplement, it is not subject to sales tax even if it is sold ready for immediate consumption or by a place of business with eating facilities.
A dietary supplement is defined in Texas Tax Code 151.313 as a product that:
- contains one or more vitamins, minerals, herbs or botanicals, amino acids, or substances that supplement the daily dietary intake;
- is not represented as food or the sole item of a meal or the diet; and
- is labeled "dietary supplement" or "supplement."
If the energy drink does not meet the three criteria mentioned above, it will still be considered a dietary supplement if it is labeled (or required to be labeled) with a Supplement Facts panel in accordance with regulations of the U.S. Food and Drug Administration.SALES TAX
Holiday Shopping Reminder: Internet Orders are Subject to Texas Sales and Use Tax
Internet sales are subject to Texas sales and use tax in the same manner as sales made by any other business. Texas tax applies to taxable items on orders placed on the Internet when shipped or delivered to a purchaser in Texas. Taxable items include tangible personal property and taxable services.
An online seller engaged in business in Texas must obtain a Texas Sales and Use Tax Permit and collect and remit tax on the sale of taxable items shipped or delivered into Texas.
Fees for shipping and handling charged by the seller of a taxable item are considered part of the sales price of the item. Charges for transportation or delivery to a Texas location are considered to be services or expenses connected to the sale of a taxable item. If the item is taxable, charges for shipping and handling, transportation or delivery are also taxable. The taxability of the shipping or handling charges does not change even if these items are separately stated on the invoice. Likewise, if the item purchased is not taxable, then the shipping and handling, transportation or delivery charges are also not taxable. See Rule 3.303, related to transportation and delivery charges.
Texas Buyer, Texas Seller
When a purchaser in Texas buys a taxable item from a Texas online seller for use in Texas, the local sales and/or use taxes due are determined by a variety of factors, as described below. Note that generally, the local sales taxes due are based on the location of the seller's place of business. A seller may also be required to collect local use taxes for local taxing jurisdictions in effect at the point of delivery if the seller is engaged in business in those jurisdictions.
A seller is engaged in business in any local jurisdiction in this state where the seller has, or has had within the previous 12 months, some type of physical presence such as business locations or salespersons. These locations include those where the seller (or the seller's representative) has solicited sales, performed services (even if done by a subcontractor) or made deliveries.
A seller is not required to collect local use taxes for jurisdictions in which he is not engaged in business; however, the local use taxes may still be due, and the seller may choose to voluntarily collect and remit the taxes as a service to the customer. If the seller does not collect the local use taxes, the purchaser is responsible for remitting those taxes directly to the Comptroller's office.
Shipped from Seller's Place of Business in Texas
When an item is shipped or delivered from the seller's place of business in Texas, the seller charges sales taxes based on the location of that place of business, regardless of whether the order was received at a different place of business in this state.
Shipped from a Texas Warehouse
If the order is shipped or delivered from a warehouse or other location in this state that is not a place of business of the seller, the local sales taxes due are based on the location of the seller's place of business where the order is received.
Shipped from an Out-of-State Warehouse
If an order is placed with a seller in Texas, but the item is drop-shipped to the purchaser by an out-of-state third party supplier, local sales tax is due based on the location of the seller's place of business where the order was received.
When a seller receives an order at a place of business in Texas, and the taxable items sold are shipped or delivered to Texas customers from the seller's out-of-state location (a place of business or a warehouse, etc.), then local use taxes are due based on the point of delivery. The seller is required to collect those local use taxes if engaged in business in those jurisdictions. See Guidelines for Collecting Local Sales and Use Tax (Pub. 94-105) (PDF, 827KB) for more information.
Texas Buyer, Out-of-state Seller
When a purchaser buys a taxable item from an out-of-state seller for use in Texas, and the seller is engaged in business in Texas, the seller must collect Texas use tax. If the seller is engaged in business at the point of delivery, the seller must also collect any local use tax due.
If the seller is not engaged in business in Texas or otherwise does not collect the Texas tax due, the customer owes Texas use tax. The customer should use the tax rate in effect at the location where the goods were received to calculate the amount of tax due. Tax is due on the entire amount charged by the seller, including shipping and handling, even if separately stated.
A purchaser who holds a Texas sales tax permit may report the transaction as a "Taxable Purchase" on their sales and use tax return. If the purchaser does not have a sales tax permit, the purchaser should file a Texas Occasional Use Tax Return (Form 01-156) (PDF, 49KB) .
Tax Paid to another State
The purchaser can take a credit against the amount of Texas use tax due for legally imposed sales taxes the purchaser paid to another state or any subdivision of another state. A purchaser cannot take a credit for taxes paid to another country.
Texas Seller, Out-of-state Buyer
A Texas seller who sells a taxable item and ships or delivers it to an out-of-state location does not have to collect Texas state or local sales tax on the sale, even if the billing address is in Texas. To document such a sale, the seller's records must include proof of delivery out of state, such as a bill of lading, a shipping invoice or a postal receipt. A Texas seller engaged in business in another state may have to collect tax in that state. The Multistate Tax Commission has a useful website with links to the tax websites of other states.
There is an exemption for tangible personal property sold online when the property was originally purchased for personal use by a person who does not hold, and is not required to hold, a sales tax permit or a similar license or permit in another state.
To qualify for the exemption, the person must not be in the business of selling taxable items, and the receipts from these sales must not exceed $3,000 in a calendar year.
There is also an exemption for the sale of up to two taxable items (other than an amusement service) in a 12-month period by a person who does not hold a sales tax permit or a similar license or permit in another state and who is not in the business of selling taxable items.
Sellers who have sales tax permits in Texas or similar licenses or permits in any other state may not sell items tax free claiming the occasional sale exemption. See Rule 3.316 (b), related to occasional sales.
Purchasers are not responsible for accruing use tax on purchases made under the occasional sale exemption, except for one important exception. A purchaser who holds a sales tax permit must accrue use tax on a taxable item purchased from a person who does not hold a sales tax permit and who has sold two or fewer taxable items (other than an amusement service) during the 12-month period immediately prior to the sale. See Texas Tax Code Section 151.304(g).
Although not required by law, we recommend that a purchaser ask the seller to provide a signed statement that the transaction qualifies for the occasional sale exemption in order to document the exemption. The purchaser should retain the statement in his records for four years following the date of the purchase.SALES TAX
Maintenance by the Seller of Software
Except in some situations, software maintenance (e.g., error correction, improvements or technical support) is not taxable when provided by a person who did not sell the software. It is, however, taxable when provided by a seller of the software. See Texas Tax Code Section 151.0101(a)(5)(D).
This means that any person who sold the software within the stream of commerce (including the manufacturer, wholesaler, retailer or other reseller) is responsible for collecting tax when performing maintenance on that software, even if that person did not sell the software directly to the person for whom the maintenance is being performed.
For instance, assume a software company (manufacturer) produces a software program and sells it for resale to another company (retailer). The retailer in turn sells the package to a customer (the user). Maintenance performed on that software by the retailer is taxable because the retailer sold the software to the user.
In addition, software maintenance provided to the user by the manufacturer is also taxable because the manufacturer is also a "seller of the software." The manufacturer sold the software at some point within the stream of commerce and thus is responsible for collecting tax or accepting a valid resale or exemption certificate on the subsequent service.
For example, the retailer could buy maintenance services from the manufacturer tax free for resale if it (the retailer) is reselling the services to the user, or if the software on which the service is performed is held in inventory for sale to others.
As noted in STAR document 200508887L, when a software manufacturer creates a separate legal entity to sell its software, generally the manufacturer must collect tax when it provides maintenance on software sold by that separate legal entity because in most cases, the transfer of the software from the manufacturer to the separate legal entity will be considered a sale of the software, as defined in Texas Tax Code Section 151.005. As such, the manufacturer is still considered a seller of the software and is therefore responsible for collecting tax on charges for maintenance services performed on the software.
If, however, the manufacturer is able to transfer ownership of the software to the separate legal entity without making a sale of the software, and the manufacturer does not sell the software through other means, then maintenance services provided on that software by the manufacturer would not be taxable.
In contrast, if a software manufacturer creates a separate legal entity to provide maintenance on software sold by the manufacturer, and the new entity does not also sell the software, then maintenance services performed by the separate legal entity on software sold by the manufacturer are not taxable because the separate legal entity is not a seller of the software.
A software maintenance service company may contract with a third party for the performance of maintenance services on some software. In this situation:
- If neither the service company nor third party is a seller of the software on which the service is performed, then no tax is due on the service company's charge to its customer, or the third party's charge to the service company because both entities are providing a nontaxable service.
- If the software maintenance company is a seller of the software on which the third party performs the maintenance, then the service company should collect tax on its charge to customers for that service. If both the service company and the third party are sellers of the software, the service company may issue a resale certificate to the third party in lieu of paying tax.
- If the software maintenance company is a seller of the software on which the service is performed, but the third party subcontractor who actually performs the service is not, the service company is still required to collect tax on its charges to customers for the services provided, but it is not required to provide a resale certificate to the third party subcontractor. In this situation, the software maintenance company is still selling a taxable service to its customers - maintenance on software it sold. And since the third party subcontractor is not a seller of the software, it is simply selling a nontaxable service to the software maintenance company.
- If, however, the third party subcontractor is a seller of the software, but the software maintenance company is not, the charge by the third party to the service company is taxable and the service company cannot issue a resale certificate to the third party. In this scenario, the third party subcontractor is selling a taxable service to the software maintenance company. But, the maintenance company is selling its service to a person to whom it did not sell the software, and therefore, the software maintenance company is providing a nontaxable service to its customer. Since the service company is providing a nontaxable service to its customer, it owes tax on all taxable items used to fulfill its contracts or perform its services, including taxable services purchased from subcontractors. In this scenario, the third party actually sold its service to the software maintenance company, not the user of the software. The user owes no tax on the maintenance company's charges.
A company that provides maintenance on software it sells is presumed to be the seller of a taxable service. Therefore, in order to claim that the provision of a maintenance service is not taxable under Tax Code Section 151.0101 (a)(5)(D), the company must be able to establish clearly through its books and records that it was not a seller of the individual software package on which the service is performed.ABOUT THE NEWSLETTER
The Comptroller's office publishes this newsletter to keep you informed about state taxes. Tax questions can be complicated, so please use these summaries as guidelines only.
For a Copy of a Proposed Rule
For a copy of a proposed rule or information about a proposed rule, write to Bryant Lomax, Tax Policy Division, 1700 North Congress Avenue, Austin, Texas, 78701-1436, or submit a request via Texas Tax Help.
For Publications, Rules or Other Tax Information
Contributors to This Month's Issue
Teresa Bostick, Bob Bearden, Melissa Brogan, Robin Corrigan, Lisa Davis, Don Dillard, Gary Johnson, Lavonne Key, Carol McAnnally, Stefanie Medack, Jerry Oxford, Viki Smith, Karen Snyder, Jennifer Specchio, Curt Swenson and Steve White