Texas Comptroller of Public Accounts    STAR System


August 5, 2003


Dear **************:

Thank you for your inquiry and request for written confirmation of our 
telephone conversation regarding House Bill 3534 and House Bill 2912 of the 
78th regular session signed into law by the Governor on June 20, 2003, and the 
effects to your client.

You supply the following situation.  "Client" is a permitted retailer of 
building materials from a single retail outlet that purchases the materials for 
resale to a related entity.  Client collects local city, county and special 
purpose district sales taxes where the sale is consummated based on law, as it 
currently exists before the effective date of HB 3534 and HB 2913.  Client also 
collects Texas local use tax, including any county, special purpose district or 
mass transit authority tax due at a job site, which are legally due under the 
State's 2 percent cap on local taxes.

Client also receives sales tax incentives from the City government and the 
City's 4B Corporation.  The local sales tax incentive is based on a percentage 
of the City sales tax, including the City's 4B Corporation, that Client 
collects and remits to the State of Texas on its sales of building materials to 
the related entity.  Client's sales outlet was in existence in the City prior 
to May 27, 2003, and the City government and the City's 4B Corporation approved 
Client's sales tax incentive agreement prior to the signing of HB 2912. 

Question: House Bill 3534 amends the definition of a "place of business" so as 
to exclude certain outlets from qualifying as a place of business and 
stipulates that if such an outlet exists, a sale from that outlet is 
consummated at the location from which the taxable items were purchased for 
resale.  You ask whether the following language from the bill would apply to 
Client if the Comptroller were to determine that Client was in fact operating 
one of these outlets:  "the change in law made to Section 321.002(a)(3), Tax 
Code, by this Act, may not, before September 1, 2005, be applied to an outlet, 
office, facility, or location that was in existence on May 27, 2003."

Response:  HB 3534 goes into effect on September 1, 2003, but provides a 
two-year window for those types of outlets to continue to allocate taxes at the 
outlet if the outlet were in existence on or before May 27, 2003.  If Client 
was operating one of these outlets on May 27, 2003, the new law does not change 
its tax collection responsibilities until September 1, 2005.

HB 2912 was effective on the day it was signed, but does not apply to 
agreements in effect or approved before that date. It also deals with outlets 
set up to divert local taxes but uses a different strategy.  It prohibits a 
city's 4B Corporation from providing incentives to a business to locate in that 
City in certain circumstances to divert taxes from another local jurisdiction.  
The grandfather clause in this bill does not have a time limitation.  Because 
this bill was signed on June 20, 2003, and Client already had an existing 
agreement by that date, this bill will not prohibit the City government and the 
City's 4B Corporation from providing the agreed incentive to Client.  However, 
after August 31, 2005, neither the City nor the City's 4B Corporation would be 
receiving taxes from Client's outlet if the outlet were determined to be 
subject to HB 3534.

You are correct in your conclusion that notwithstanding these two new laws, 
Client may continue to collect the local sales tax for the City where the 
outlet currently receives orders for building materials/

This opinion is based on the facts presented. If there are additional or 
different facts, the opinion may change.

You may call me toll free 1-800-531-5441, extension 3-4675, if you have any 
questions or need more information. You may write to Tax Policy Division, 
Comptroller of Public Accounts, P.O. Box 13528, Austin, Texas 78711-3825. My 
email address is .


Tom Soto
Tax Policy Division

DATE: 08/05/2003