Part I.
Comptroller of Public Accounts
Chapter 3.
Tax Administration
Subchapter HH. Mixed Beverage Tax
34 TAC §3.1001
The Comptroller of Public Accounts proposes an amendment
to §3.1001, concerning mixed beverage gross receipts, receipts excluded
from tax. The comptroller requires mixed beverage permit holders to maintain
records concerning the sale and service of alcoholic beverages. The records
required by the comptroller are similar to the records that the Texas Alcoholic
Beverage Commission required before the mixed beverage tax collection and
audit functions were transferred to the comptroller. This rule amendment provides
the record keeping guidelines for mixed beverage permit holders.
Subsection (a)(2) of this rule is being amended to clarify the definition
of a complimentary alcoholic beverage. Subsections (e)(1) and (e)(3) are being
amended to reflect the amended definition of a complimentary beverage.
This amendment also includes non-substantive grammatical and/or stylistic
corrections in subsections (a), (b), (c), and (f).
James LeBas, Chief Revenue Estimator, has determined that amendment of
the rule will not result in any fiscal implications to the state or to units
of local government.
Mr. LeBas also has determined that the rule changes would benefit the public
by clarifying the rules regarding exclusions from the mixed beverage gross
receipts tax. There is no anticipated significant economic cost to the public.
This amendment is adopted under the Tax Code, Title 2, and does not require
a statement of fiscal implications for small businesses. The rule change would
have no significant impact on individuals.
Comments on the proposal may be submitted to Bryant K. Lomax, Manager,
Tax Policy Division, P.O. Box 13528, Austin, Texas, 78711.
This amendment is proposed under the Tax Code, §111.002,
which provides the comptroller with the authority to prescribe, adopt, and
enforce rules relating to the administration and enforcement of the provisions
of the Tax Code, Title 2.
The amendment implements the Tax Code, §§183.001, 183.021, and
183.055.
§3.1001.Mixed Beverage Gross Receipts, Receipts Excluded From Tax , Records Required, and Information Required.
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Alcoholic beverage--Alcohol, or any beverage containing
more than
0.5%
[
(2)
Complimentary alcoholic beverage--An alcoholic beverage
served without any
consideration paid to the permittee.
[
(3)
Gratuities--An amount given voluntarily by a customer
or member for the sale or service of alcoholic beverages in addition to the
charge for the alcoholic beverages or an amount that is mandatory based on
a percentage or other amount established by the permittee in excess of the
charge for the sale or service of the alcoholic beverages.
(4)
Minibar--A closed container, cabinet, or other device
in a hotel guestroom that contains alcoholic beverages for use by guests registered
in the hotel.
(5)
Mixed beverage--A serving of a beverage composed in
whole or in part of an alcoholic beverage in a sealed or unsealed container
of any legal size for consumption on the premises where served or sold by
the holder of a mixed beverage permit, a private club registration permit,
a private club exemption certificate permit, and any of the auxiliary permits
held by the
permit holders
[
(6)
Permittee--A holder of a mixed beverage permit, a
mixed beverage late hours permit, a mixed beverage
permit
[
(7)
Source record--A dated customer service check
or ticket; a dated cash register receipt, if coded to reflect all required
information; or the equivalent of a customer service check or cash register
receipt in some other form subject to approval by the comptroller.
(8)
Temporary membership card--A card printed
and sold to a private club by the
(TABC)
[
(9)
[
(b)
Mixed
beverage gross receipts tax
[
(1)
The
mixed beverage gross receipts tax
[
(2)
Each permittee must file a monthly return due on the
20th day of the following month. If no sales or services of alcoholic beverages
are made during a month, a report indicating that fact must be filed.
(c)
Taxable mixed beverage receipts. The
mixed beverage
gross receipts tax
[
(1)
receipts from the sale or service of alcoholic beverages;
(2)
receipts from the sale or service of nonalcoholic
beverages that are mixed and consumed with alcoholic beverages on the permittee's
premises;
(3)
receipts from cover charges, door charges, entry fees
,
or admission fees that are related to reduced prices for alcoholic
beverages as described in 16 TAC §45.103 (
relating to
Regulations
of "Happy Hour"). If cover charges are determined to be related to reduced
prices for alcoholic beverages, the tax base will be the entire receipts from
the cover charge plus the reduced sales or service prices received for the
alcoholic beverages;
(4)
as an alternative to paragraph (3) of this subsection,
a permittee may elect to report the services or sales of alcoholic beverages
at the normal service or selling price and exclude the cover charges, door
charges, entry fees
,
or admission fees from the tax base. The normal
sales or service price is the price charged for the alcoholic beverage when
no cover charge, door charge, entry fee, or admission fee is collected. When
the permittee elects to use this option, the cover charges, door charges,
entry fees, or admission fees will be subject to sales tax under §3.298
of this title (relating to Amusement Services);
(5)
the normal selling price of alcoholic beverages served
with meals with no separate charge. If the specific alcoholic beverage is
being sold or served at a promotional price at the same time as the meal,
the tax base for the alcoholic beverage will be the promotional price. This
subsection refers to promotions usually promoted as "free drink(s) with a
meal";
(6)
mandatory gratuities of 20% or less that are not entirely
distributed to qualifying employees. "Qualifying employees" are employees
such as, but not limited to, waitpersons, buspersons, bartenders, wine stewards,
and maitre
d'hotel
who customarily and regularly provide the services
upon which the charge is based. Nonqualifying employees or recipients include,
but are not limited to, owners, club managers with no direct involvement in
the particular event, janitorial help, chefs, cashiers, and dishwashers.
(A)
If compensation is made to nonqualifying employees or recipients,
the entire portion of the gratuity attributable to the sale or service of
alcoholic beverages is subject to the mixed beverage gross receipts tax.
(B)
If the total direct compensation due all qualifying employees
during each reporting period (month) equals or exceeds the total amount collected
as mandatory gratuities and no compensation is paid nonqualifying employees,
the mandatory gratuity is exempt from the mixed beverage gross receipts tax
.
[
(7)
all mandatory gratuities that exceed 20% of the
charge for alcoholic beverages are subject to the mixed beverage gross receipts
tax;
(8)
miscellaneous charges in conjunction with the sale
or service of alcoholic beverages such as bar set-up fees, bartender fees,
corkage fees,
maitre d'hotel
[
(9)
all sales or services of alcoholic beverages by caterers;
(10)
all sales or services of alcoholic beverages sold
or served by the holder of a temporary permit listed in subsection (a)(6)
of this section or by the holder of a beer and wine only temporary permit
issued to a mixed beverage permit holder;
(11)
all sales of coupons, tokens, tickets, etc., that
are redeemed or used in any manner to purchase or pay for the service of an
alcoholic beverage; and
(12)
thefts of money or legal tender received from the
sale or service of alcoholic beverages are not deductible from the mixed beverage
tax base.
(d)
Private clubs, special events, and functions. Mixed beverage
gross receipts tax on alcoholic beverages served at special events or functions
such as golf or tennis tournaments at private clubs, when a lump-sum charge
entitles the member or guest to various items such as green fees, food, alcoholic
beverages, golf cart rentals, etc., shall be computed by one of the following
methods.
(1)
The club shall maintain documentation that shows the normal
cost to a member or guest for each of the items provided for the lump-sum
charge. The permittee will then compute the percentage of the total of all
the charges attributable to the sale or service of the alcoholic beverages.
This percentage then will be applied to the actual lump-sum amount paid by
the member or guest to derive the tax base for the mixed beverage gross receipts
tax. For example, if the total of all the items would normally cost $300 and
the permittee estimates that the portion attributable to the sale or service
of alcoholic beverages is $30, then 10% of the actual lump-sum amount would
be reported as subject to the mixed beverage gross receipts tax. If the amount
paid by the member or guest is $200, then $20 would be the tax base. The documentation
used by the permittee is subject to review by the comptroller's personnel
and any amounts determined to be inaccurate or unreasonable may be adjusted.
(2)
The permittee may choose to use the normal sales or
service prices of the alcoholic beverages as the tax base for the mixed beverage
gross receipts tax.
(e)
Items excluded from the mixed beverage gross receipts tax
base.
(1)
Complimentary alcoholic beverages served without any
consideration paid to the permittee.
[
(2)
Complimentary alcoholic beverages served during promotional
periods such as happy hours at hotels or motels. If, however, there is an
increase in guest room rates attributable to the promotional periods, the
comptroller will have the option to tax either the increase in the room rate
under the Tax Code, Chapter 156, or assess use tax on the taxable ingredients
of the complimentary drinks. The comptroller will have the authority to use
information such as the room rates at comparable hotels and motels in the
area to determine if an increased rate is attributable to the promotional
period alcoholic beverages.
(3)
Complimentary alcoholic beverages served to holders
of free drink cards or free drink tokens, for which no consideration was paid
to the permittee.
[
(4)
All voluntary gratuities.
(5)
All mandatory gratuities, not to exceed 20% of the
charge for the alcoholic beverages, that are distributed to qualifying personnel
as outlined in subsection (c)(6) and (c)(6)(B) of this section.
(6)
Walked checks or tabs. These differ from bad debts
in that no agreement exists to extend credit to the customer or guest.
(7)
Receipts from cover charges, door charges, entry fees,
or admission fees that are not related to reduced prices for alcoholic beverages
and assumed for entertainment, food specials, and other purposes. Sales tax
as provided by §3.298 of this title (relating to Amusement Services)
is due on these receipts.
(8)
Cover charges collected when the permittee elects
to use the reporting method described in subsection (c)(4) of this section.
(9)
Bad debts. The unpaid portion of the gross receipts
on sales or services made on or after August 28, 1995, that have been charged
off the books as a bad debt and that are deducted for federal tax purposes
during the same or subsequent reporting period.
(f)
Alcohol loss, sales tax not due. Although use tax per the
Tax Code, Chapter 151, is due on the taxable ingredients of complimentary
drinks, no use tax is due on alcoholic beverages [
(g)
Inventory for cooking.
(1)
Inventory of alcoholic beverages used in cooking may be
stored:
(A)
with regular bar stock; or
(B)
in a separate storage area.
(2)
The withdrawal from inventory of alcoholic beverages
used in cooking must be recorded at the time of withdrawal on a:
(A)
service check; or
(B)
other permanent record.
(h)
Record requirement. Records required by
the comptroller for mixed beverage permittees, as that term is defined in
Tax Code, §183.001, must be kept for a period of four years. Records
must be made available upon request within a reasonable time for examination
by the comptroller or authorized agents or employees. The records, in general,
must reflect the total gross receipts from the sale or service of alcoholic
beverages and those associated services that are subject to the gross receipts
tax, as provided by subsections (c) and (d) of this section. Records may be
written, kept on microfilm, or stored on data processing equipment. Permittees
must contact the TABC for information concerning TABC record keeping requirements.
(i)
Source records.
(1)
The following information is required to be printed on
a source record in a manner that makes such information clearly evident or
by a system of symbols (codes) if such symbols and their meaning are printed
on the source record or maintained on the licensed premises.
(A)
Each individual serving of an alcoholic beverage and the
price charged. When using service checks, it is permissible to make one entry
on a service check for more than one individual serving if all of the servings
are of the same type (e.g., 3 Scotch & Water @ $2.00 = $6.00). If all
of the servings are not of the same type, a separate entry must be made on
the service check for each type of service (e.g., 3 Scotch & Water @ $2.00
= $6.00, 2 Rum & Coke @ $2.00 = $4.00). When using a cash register only,
regardless of the type of service, each individual serving must be rung up
separately. When using a combination of service checks and a cash register,
it is not necessary to itemize each serving on the cash register tape if all
the required information is shown on the service check.
(B)
For an alcoholic beverage not served as an individual separate
serving, the unit of the serving used and the price charged. When using service
checks, units of servings that are more than an individual separate serving
shall be recorded as such (e.g., 2 pitchers of beer @ $3.25 = $6.50, 1 pitcher
of daiquiri @ $6.00 = $6.00). When using a cash register only, each unit of
serving which is more than an individual separate serving must be rung up
separately, with the price list identifying the unit of serving. When using
a combination of service checks and a cash register, it is not necessary to
itemize each serving on the cash register tape if all the required information
is shown on the service check.
(C)
Each separate serving or other unit shall be clearly identified
as to the kind of drink (i.e., daiquiri, tequila sunrise) or class of beverage
(beer, wine, whiskey) as the case may be. If a cash register does not have
sufficient keys for the classification, the price list used for identifying
the units of servings must also identify the kinds of servings.
(D)
The date of the transaction. For this purpose the "date"
begins as of 3:00 a.m. one day and continues until 3:00 a.m. the next day.
(E)
Complimentary alcoholic beverages shall be recorded on
service checks only. A check should be prepared for each individual or party
served. The check should be prepared as if it was a normal sale and then clearly
marked as being complimentary. The service checks should be grouped daily
and filed with the daily summary showing the information on the summary as
required by subsection (j) of this section. A serving of an alcoholic beverage
shall not be a complimentary alcoholic beverage if it is served under conditions
which include, but are not limited to the following: the alcoholic beverage
is served in connection with food or any other thing sold to the recipient,
or if any entertainment or entry fee is charged. Any alcoholic beverage served
under the above or similar conditions is subject to the gross receipts tax,
computed on the basis of the normal charge for the sale or service of such
alcoholic beverage.
(F)
Mandatory gratuities that exceed 20% of the charge for
alcoholic beverages must be recorded and identifiable on a source record.
A mandatory gratuity that is less than 20% of the charge for the sale or service
of alcoholic beverages must be recorded and identifiable on the source record
only if the gratuity is disbursed to nonqualifying employees or recipients,
which include but are not limited to, owners, club managers with no direct
involvement in the particular event, janitorial help, chefs, cashiers, and
dishwashers. All voluntary gratuities are not to be recorded on a source ticket.
(2)
Source records shall be maintained in sequence
by date.
(j)
Daily Summaries. Each permittee must maintain
a daily summary, including the following information:
(1)
all information required to be recorded on source records;
(2)
complimentary alcoholic beverages dispensed, showing
the number of services, type of service, kind of drink, and normal selling
price;
(3)
alcoholic beverages which were lost through theft,
showing the number of containers lost by size, brand, and class. The theft
must be reported to the proper police department and must be substantiated
by the report of such police department;
(4)
alcoholic beverages which were lost through a disaster,
showing the number of containers lost by size, brand, and class. The disaster
must be reported to the comptroller;
(5)
alcoholic beverages which were lost through breakage
or spillage, showing the number of containers lost by size, brand, and class
or type of drink and size. A written report must be prepared at the time of
the loss;
(6)
alcoholic beverages which were lost through the cleaning,
servicing, or repair of dispensing equipment lines, showing the amount lost
by class or type of drink and supported by:
(A)
reports prepared by the permittee at the time of the malfunction;
and/or
(B)
repair/service invoices prepared by the repair/service
company;
(7)
alcoholic beverages used in cooking, with purchases
documented:
(A)
by purchase invoices that have such beverages clearly denoted
by either the seller or purchaser; or
(B)
by separate purchase invoice;
(8)
cover charges, door charges, entry
fees, or admission fees. Admission fees related to the reduced price for alcoholic
beverages as described in 16 TAC §45.103 (relating to Regulations of
"Happy Hour") are subject to the mixed beverage gross receipts tax. Sales
tax as provided by 34 TAC §3.298 (relating to Amusement Services) is
due on admission fees not related to reduced prices of alcoholic beverages.
Permittees should consult the TABC to determine if a cover charge is prohibited
under 16 TAC §45.103; and
(9)
information pertaining to changes made during the
month concerning prices, glass sizes, bulk machine (e.g., margarita machine)
recipes, ounces per serving, parties, or promotions.
(k)
Purchase invoices.
(1)
A record of all alcohol and alcoholic beverages purchased
or received showing the date, name and address of the person from whom purchased
or received, the point from where shipped, point received, the quantity and
kind of beverage (brand and class) received, and the total price paid for
each brand and class received.
(2)
Alcoholic beverages used in mixing drinks as the secondary
ingredient (e.g., vermouth, triple sec) must be supported by purchase invoices
which have such beverages clearly denoted by the purchaser.
(l)
Bad debts refund or credit.
(1)
A mixed beverage permittee may take a credit against taxes
to be paid to the comptroller or claim a refund on taxes paid to the comptroller
for bad debt on sales made on or after August 28, 1995.
(2)
To establish bad debt credit or refund, a permittee's
records must show:
(A)
date of sale or service;
(B)
name and address of purchaser;
(C)
source records of sale or service;
(D)
evidence that the gross receipts tax was paid to the comptroller;
(E)
all payments or credits applied to the account of the purchaser;
(F)
a designation that the account is a bad debt; and
(G)
evidence that the account has been or will be claimed as
a bad debt deduction for federal income tax purposes.
(3)
To determine the amount of bad debt allowance
for tax, all payments or credits in reduction of a customer's account must
be applied ratably between alcoholic beverages and other goods sold to that
customer.
(4)
If all or part of the amount claimed as a bad debt
is later collected, the amount collected must be reported as a taxable receipt
in the reporting period in which the collection was made.
(5)
Accounts may not be labeled as a bad debt for the
purpose of delaying the payment of the tax.
(m)
Audit and examination of tax account.
(1)
Determination of tax liability. In examining the tax account
of any permittee, the comptroller may compute and determine the amount of
gross receipts tax liability based on reports filed with the comptroller,
records or information obtained from the permittee, or records or information
obtained from any seller who furnished alcoholic beverages to the permittee,
or such other information which may come to the attention of the comptroller.
The comptroller presumes that the disposition of all alcoholic beverages purchased
by the permittee is taxable until established otherwise.
(2)
Access to all information. The comptroller may examine
all books, records, papers, documents, supplies, and equipment of a mixed
beverage permittee. Additional records that may be required to be presented
include, but are not limited to, the following:
(A)
all procedure and operation manuals;
(B)
all financial ledgers, journals, and registers;
(C)
all financial statements prepared internally or by an outside
bookkeeper, accountant, or C.P.A.;
(D)
all bank statements;
(E)
all federal income tax returns; and
(F)
all state and federal employment tax returns and supporting
documents.
(3)
Failure to maintain or make records available
for audit. In examining the tax account of each permittee, if the comptroller
finds that the permittee has failed to maintain or make available the records
required by any regulation of the comptroller, the comptroller may compute
and determine the amount of the gross receipts tax liability from any available
source or records, and estimates of the tax liability may be made by use of
any available records for any period for which the permittee has failed to
maintain records or file a report with the comptroller. In the event records
are not made available, the comptroller will presume all alcohol purchased
was sold. In the absence of records or evidence to the contrary, the comptroller
may accept an average pour figure of 1.25 ounces per serving of liquor.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
August 4, 1999.
TRD-9904779
Martin Cherry
Special Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: September 19, 1999
For further information, please call: (512) 463-3699
Chapter 25.
Membership Credit
Subchapter B. Compensation
34 TAC §25.24
The Teacher Retirement System of Texas (TRS) proposes a new
§25.24 relating to performance pay as a form of creditable compensation
for retirement with TRS. The proposed new rule provides guidelines and some
definition for the TRS staff and school district reporting officials in administering
new law passed in 1997 and amended in 1999 found at Government Code, §822.201(b).
The new law allows performance pay awarded to an employee by a school district
as part of a total compensation plan approved by the board of trustees of
the district to be submitted as creditable compensation to TRS.
Ronnie Jung, Chief Financial Officer, has determined that for each year
of the first five years the new rule is in effect, there will no fiscal implications
to state or local governments as a result of enforcing or administering the
new rule.
Mr. Jung has also determined that for each year of the first five years
the rule is in effect the public benefit anticipated will be that a process
for administering the new law will be in place for TRS members, reporting
officials, and TRS staff. There will be no effect on small businesses. There
are no anticipated economic costs to the public or to the persons who are
required to comply with the rule as proposed.
Comments on the proposal may be submitted to Charles L. Dunlap, Executive
Director, 1000 Red River, Austin, Texas 78701.
The new rule is proposed under the Government Code, Chapter 825,
§825.102, which authorizes the Board of Trustees of the Teacher Retirement
System to adopt rules for eligibility for membership and for the administration
of the funds of the retirement system.
Government Code, §822.201(b) is affected by this proposed new rule.
§25.24.Performance Pay.
(a)
Annual compensation includes performance pay earned under
a total compensation plan specifically approved by vote of the governing board
of an employer. Such approval must be reflected in the minutes of the governing
board. Any employer reporting to the retirement system is considered a school
district for the purposes of this section.
(b)
For purposes of including performance pay as a part of
annual compensation under this rule, a total compensation plan must describe
all elements of compensation received by all employees of the employer.
(c)
Performance pay is compensation for service as an employee
in a Texas public educational institution that is paid under a valid employment
agreement based upon a performance standard published in written documents
adopted by the employer. The performance standard may be based on evaluations
or goal achievement of the individual employee or of the group in which the
individual belongs. Specific amounts of performance pay will be credited to
the year in which the standards establishing the right to the performance
pay are met or in which the service occurred, whichever is earlier.
(d)
An employer shall certify each year to the retirement system,
by a date specified by the system, whether it is providing performance pay
under this section. A district that has properly made this certification shall
report all qualifying performance pay as compensation and make appropriate
deductions for member contributions unless the retirement system advises the
employer that such pay does not qualify as performance pay under this rule.
Employer shall maintain records that show it provides such pay for a period
not less than 7 years after such pay is reported to the retirement system.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August
9, 1999.
TRD-9904957
Charles Dunlap
Executive Director
Teacher Retirement System of Texas
Proposed date of adoption: September 24, 1999
For further information, please call: (512) 391-2115
Subchapter F. Partial Lump-Sum Option Plan
34 TAC §29.70, §29.71
(Editor's note: The Teacher Retirement System of Texas
proposes for permanent adoption the new sections it adopts on an emergency
basis in this issue. The text of the new sections are in the Emergency Rules
section of this issue.)
The Teacher Retirement System of Texas (TRS) proposes new
§29.70 and §29.71 relating to a new Partial Lump-Sum Option plan
provided in new law. The proposed new sections provide a method of distribution
for the yearly lump sums that will be paid to retirees. In addition, the new
sections address distribution in the event that the retiree dies prior to
full distribution and also provide the tables and formula needed to figure
the amount of reduction to a retiree's annuity. The proposed new rules have
been simultaneously adopted on an emergency basis.
Ronnie Jung, Chief Financial Officer, has determined that for each year
of the first five-year period the rules are in effect, there will be no fiscal
implications to state or local governments as a result of enforcing or administering
the rules.
Mr. Jung has also determined that for each year of the first five years
the rules are in effect the public benefit anticipated will be that the process
for administering the new law will be in place for TRS retirees. Staff will
know how to distribute the money, what amount to use in computing a retiree's
benefit who chooses the lump-sum option, and how to pay any money if the retiree
dies prior to full distribution. There will be no effect on small businesses.
There are no anticipated economic costs to the public or to the persons who
are required to comply with the sections as proposed
Comments on the proposal may be submitted to Charles L. Dunlap, Executive
Director, 1000 Red River, Austin, Texas 78701.
The new rules are proposed under the Government Code, Chapter
825, §825.102, which authorizes the Board of Trustees of the Teacher
Retirement System to adopt rules for the administration of the funds of the
retirement system and under Government Code, Chapter 824, §824.2045(h)
which authorizes the Board to adopt rules for the implementation of the partial
lump-sum option.
Government Code, Chapter 824, §824.2045 is affected by the proposed
new rules.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
August 9, 1999.
TRD-9904954
Charles Dunlap
Executive Director
Teacher Retirement System of Texas
Proposed date of adoption: September 24, 1999
For further information, please call: (512) 391-2115
34 TAC §§31.7, 31.10, 31.12
The Teacher Retirement System of Texas (TRS) proposes amendments
to §31.7 concerning regular employment having no effect an annuity, §31.10
concerning monthly certified statements, and §31.12 concerning employment
up to six months on as much as full time. New law concerning employment after
retirement was passed by the 76th Legislature in Senate Bill 1128.
The proposed amendment to §31.7 makes it clear that substitute work
may not be combined with other employment after retirement and adds the new
concept of allowing work in an acute shortage area by a teacher. The proposed
amendment to §31.10 requires that employers must also certify the employment
of retirees under the six month exception and under the new acute shortage
area. It also deletes the word "regular" for clarification purposes. The proposed
amendments to §31.12 remove the concept of an election form which is
no longer required for the six month exception. The employers will be required
to report these six month exception retirees. The first six months worked
in a school year will have to be used for the exception.
Ronnie Jung, Chief Financial Officer, has determined that for each year
of the first five-year period the rules are in effect, there will be no fiscal
implications to state or local governments as a result of enforcing or administering
the rules.
Mr. Jung has also determined that for each year of the first five years
the rule is in effect the public benefit anticipated will be clarification
on the requirements to take advantage of this new law, the elimination of
outdated language regarding an election of the six month election, and clarification
of language dealing with employment after retirement. There will be no effect
on small businesses. There are no anticipated economic costs to the public
or to the persons who are required to comply with the rules as proposed.
Comments on the proposal may be submitted to Charles L. Dunlap, Executive
Director, 1000 Red River, Austin, Texas 78701.
The amendments are proposed under the Government Code, Chapter
825, §825.102, which authorizes the Board of Trustees of the Teacher
Retirement System to adopt rules for eligibility for membership and for the
administration of the funds of the retirement system.
Government Code, §824.602(a) and (e) are affected by the proposed
amendments.
§31.7.Regular Employment Having No Effect on Annuity.
Any person receiving a service retirement annuity may, without affecting
payment of the annuity, be employed during any month in Texas public education
on as much as one-half the full-time load for the particular position according
to the personnel policies of the employer, provided the person is not also
employed as a substitute in that month. The exception described in this section
is not available to persons
employed under
[
§31.10.Monthly Certified Statement.
The employer will furnish the retirement system a monthly certified
statement of all employment after retirement containing information necessary
for the executive director to classify employment as "substitute," "not more
than one-half time,"
employment under the six-month exception," "employment
in an acute shortage area" or "full-time
[
§31.12.Employment up to Six Months on as Much as Full Time.
(a)-(b)
(No change.)
(c)
[
(d)
A person will forfeit annuity payment for any month in
the school year outside the six-month period [
(e)
The [
(f)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August
9, 1999.
TRD-9904958
Charles Dunlap
Executive Director
Teacher Retirement System of Texas
Proposed date of adoption: September 24, 1999
For further information, please call: (512) 391-2115
34 TAC §31.9
(Editor's note: The Teacher Retirement System proposes
for permanent adoption the amended section it adopts on an emergency basis
in this issue. The text of the amended section is in the Emergency Rules section
of this issue.)
The Teacher Retirement System of Texas (TRS) proposes an amendment
to §31.9, concerning the definitions used in rules relating to employment
after retirement. The proposed amendments have been simultaneously adopted
on an emergency basis. New law concerning employment after retirement was
passed by the 76th Legislature in Senate Bill 1128.
The amendment to §31.9 makes it clear that a 12 month separation from
employment after retirement required in the new law is a 12 consecutive month
separation. There was testimony during the legislative hearings on the new
law regarding this need. In addition, the amendment makes it clear that teaching
in an acute shortage area for at least one hour per day qualifies under the
new law as employment in an acute shortage area as defined by the Commissioner
of Education.
Ronnie Jung, Chief Financial Officer, has determined that for each year
of the first five-year period the rule is in effect there will be no fiscal
implications to state or local governments as a result of enforcing or administering
the rule.
Mr. Jung has also determined that for each year of the first five years
the rule is in effect the public benefit anticipated will be clarification
on the requirements to take advantage of this new law. There will be no effect
on small businesses. There are no anticipated economic costs to the persons
who are required to comply with the rule as proposed.
Comments on the proposal may be submitted to Charles L. Dunlap, Executive
Director, 1000 Red River, Austin, Texas 78701.
The amendments are proposed under the Government Code, Chapter
825, §825.102, which authorizes the Board of Trustees of the Teacher
Retirement System to adopt rules for eligibility for membership and for the
administration of the funds of the retirement system. In addition, new law,
found in Senate Bill 1128 of the 76th Legislative session, provides the basis
for this proposal.
Government Code, §824.602(a) is affected by this proposed amendment.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
August 9, 1999.
TRD-9904956
Charles Dunlap
Executive Director
Teacher Retirement System of Texas
Proposed date of adoption: September 24, 1999
For further information, please call: (512) 391-2115
one-half of one percent
] of alcohol
by volume, which is capable of use for beverage purposes, either alone or
diluted.
charge
for the alcoholic beverage to the person served.
]
permitholders
].
permittee
] holding a food and beverage certificate, a daily temporary
mixed beverage permit, a private club registration permit, a private club
exemption certificate permit, a private club late hours permit, a daily temporary
private club permit, a private club registration
permit
[
permittee
] holding a food and beverage certificate, or a caterer's permit
issued by the Texas Alcoholic Beverage Commission
(TABC)
.
Texas Alcoholic
Beverage Commission
]. The card is then sold by the private club to an
individual and entitles that individual to all the privileges of membership
in the private club for a period not to exceed three days. The card also entitles
the holder to bring not more than three persons into the club as the holder's
guests.
(8)
] Walked checks or tabs--An
industry term that refers to the instance of a customer that on a particular
business day consumes alcoholic beverages and leaves the permittee's premises
without paying or providing the appropriate consideration for the alcoholic
beverages.
Beverage
Gross Receipts Tax
]. A tax at the rate of 14% imposed on the gross receipts
of a permittee received from the sale, preparation, or service of alcoholic
beverages or from the sale, preparation, or service of ice or nonalcoholic
beverages that are sold, prepared, or served for the purpose of being mixed
with an alcoholic beverage and consumed on the premises of the permittee.
Mixed Beverage Gross Receipts Tax
] is a tax on gross receipts and is
not to be added to the charge for the sale or service of the alcoholic beverage
and cannot be considered included in the gross receipts amount.
Mixed Beverage Gross Receipts Tax
] applies
to, but is not limited to, receipts for the following items:
;
]
maitred hotel
] charges,
etc., are subject to the mixed beverage gross receipts tax;
charge to the recipient.
]
Use tax as provided by the Tax Code, Chapter 151, is due on the taxable ingredients
of the complimentary alcoholic beverages.
by the holder.
]
that are
] destroyed
due to spillage or breakage or used in cooking.
Part III.
Teacher Retirement System of Texas
Chapter 29.
Benefits
Chapter 31.
Employment After Retirement
who have elected
] the exception described in §31.12 of this title (relating to
Employment up to Six Months on as Much as Full Time). The exception described
in this section does not apply for the first month after the person's effective
date of retirement (or the first two months if the person's retirement date
has been set on May 31 under §29.14 of this title (relating to Eligibility
for Retirement at the End of May)).
Any eligible person receiving a service
retirement annuity may also work as a substitute at substitute pay every day
of the year, but may not combine substitute work with other employment after
retirement work during any month. Any person eligible under the law may work
without affecting payment of the annuity in an acute shortage area as defined
by the Commissioner of Education.
Any person receiving a disability
retirement annuity, may without affecting payment of the annuity, be employed
for a period not to exceed 90 days during any school year in Texas public
education on as much as one-half the full-time load or as a substitute for
the particular position according to the personnel policies of the employer.
regular
] employment"
[
exceeding one-half time
] within the provisions of this section.
A person must elect in writing on a form prescribed
by the Teacher Retirement System of Texas (TRS) to take advantage of the exception
described by this section.
] A person who, during a school year, has
already used the exception described in §31.3 of this title (relating
to Regular Employment) for substitute work or in §31.7 of this title
(relating to Regular Employment Having No Effect on Annuity) for work at no
more than half time is eligible
for the
[
to elect this
]
exception
described in this section
during the same school year;
however, the permissible substitute employment or the employment for work
at no more than half time during the same school year must be included in
the six months of employment allowed under this section. A person who has
been employed in Texas public education during a school year and has forfeited
service retirement benefits because the person did not qualify for one of
the exceptions described in §31.3 of this title or §31.7 of this
title is eligible
for
[
to elect
] this exception during
the same school year.
The six-month exception will be allowed so long
as the person is eligible and is reported under that exception by the employer.
A person using the six-month exception must use the first six months of a
school year in which any work occurs. A person reported as working full-time,
but not under the six month exception, will be notified that ineligible annuity
checks have been sent to the person and need to be repaid. In the event the
person wants to use the six-month exception and has not been reported in that
manner, the person will need to notify TRS in writing.
[
The election
must be made no later than thirty days after the person receives notice from
TRS that the person's annuity payments must be forfeited in the months for
which TRS received notice from the employer that the person was employed on
more than a half time basis without having completed the election form. To
avoid notice of forfeiture and interruption of annuity payments, the person
should submit the election to TRS no later than the last day of the first
month of employment on as much as full time that is subject to the exception
described in this section. The person making the election must designate on
the form the six months during which the exception is to apply. For the election
to be effective, the employer of the person must certify on the election form
that the employment will be reported to TRS. A separate election form must
be filed for each year that the person wishes this exception to apply.
]
designated on the person's
election form
] during which the person works in any position in a Texas
public educational institution. This applies even if the work would otherwise
qualify for an exception under §31.3 of this title (relating to Permissible
Substitute Employment) for substitute work or §31.7 of this title (relating
to Regular Employment Having No Effect on Annuity) for no more than half-time
employment. However, substituting or work at no more than half-time during
the [
designated
] six months will be treated as any other employment
permitted during that period.
election of the
] exception described in
this section may not be [
modified or
] revoked after the person
receives an annuity payment under it. [
A person may not designate a period
of less than six months for the exception to apply unless the remaining time
in the school year during which it can apply requires it.
]
Employees must submit to TRS the election forms signed
by their employees if and when certified by the employer as required by subsection
(c) of this section.
] Employers will report separately to TRS all work
in a school year by persons with [
an election of
] this exception
in effect. Substituting or work at no more than half time by a person with
the
exception
[
election
] in effect will not be reported
under those categories, but as work under this exception.
Chapter 47.
Qualified Domestic Relations Orders