34 TAC §3.295
The Comptroller of Public Accounts proposes an amendment
to §3.295, concerning natural gas and electricity. This rule is being
amended to reflect changes to the Tax Code, §151.317, enacted by the
76th Legislature, 1999, adding clarifications and codifying the agency's long-standing
policy of using predominant use to determine the taxability of gas or electricity
used for exempt and taxable purposes and measured through a single meter.
Mike Reissig, director of estimates, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. Reissig also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing new information regarding tax responsibilities.
This rule is adopted under the Tax Code, Title 2, and does not require a statement
of fiscal implications for small businesses. There is no significant anticipated
economic cost to individuals who are required to comply with the proposed
rule.
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, §151.317.
§3.295. Natural Gas and Electricity.
(a)
Definitions. The following words and terms, when used
in this section, shall have the following meanings, unless the context clearly
indicates otherwise.
[
(1)
Commercial use -- Use by
persons engaged in selling, warehousing, or distributing a commodity or use
by persons engaged in selling a service, either professional or personal,
including uses by the wholesale and retail trade, hotels, office buildings,
preparation or storage of food for immediate consumption, and those persons
providing taxable services.]
(1)
[
(2)
] Electric utility -- Any
entity owning or operating for compensation in this state equipment or facilities
for producing, generating, transmitting, distributing, selling, or furnishing
electricity whose rates for the sale of electric power are set by the Public
Utilities Commission under the Public Utility Regulatory Act. The term does
not include:
(A)
a qualifying small power producer or qualifying co-generator,
as defined in the Federal Power Act, §3(17)(D) and §3(18)(C), as
amended (16 United States Code §796(17)(D) and §796(18)(C)); or
(B)
any person not otherwise a public utility that owns or
operates in this state equipment or facilities for producing, generating,
transmitting, distributing, selling, or furnishing electric energy to an electric
utility, if the equipment or facilities are used primarily for the production
and generation of electric energy for the person's own consumption.
(2)
[
(3)
] Fabrication -- To
make, build, create, produce, or assemble components of tangible personal
property, or to make tangible personal property work in a new or different
manner.
(3)
[
(4)
] Manufacturing -- Every
operation commencing with the first stage of production of tangible personal
property and ending with the completion of tangible personal property. The
first production stage means the first act of production and it does not include
acts in preparation for production. For example, a manufacturer gathering,
arranging, or sorting raw material or inventory is preparing for production.
When production is completed, maintaining the life of tangible personal property
or preventing its deterioration is not a part of the manufacturing process.
Tangible personal property is complete when it has the physical properties,
including packaging, if any, that it has when transferred by the manufacturer
to another. [
For the purposes of this section, direct use of natural
gas or electricity in manufacturing, which includes fabricating and processing,
and in providing lighting, cooling, and heating in the manufacturing area,
will be referred to as noncommercial use.
] Also see §3.300 of this
title (relating to Manufacturing; Custom Manufacturing; Fabricating; Processing).
[
(5)
Other noncommercial
uses -- Include:]
[
(A)
exploration for production or transportation
of material extracted from the earth;]
[
(B)
agriculture, including dairy or poultry operations
and pumping water for farm and ranch irrigation;]
[
(C)
electrical processes such as electroplating,
electrolysis, and cathode protection;]
[
(D)
direct or indirect use, consumption, or loss
of electricity by an electric utility engaged in the purchase of electricity
for resale;]
[
(E)
the off-wing processing, overhaul, or repair
of a jet turbine engine or its parts for a certificated or licensed carrier
of persons or property; or]
[
(F)
the repair, maintenance, or restoration of
rolling stock.]
(4)
[
(6)
] Remodeling -- To
make tangible personal property belonging to another over again without causing
a loss of its identity, or without causing the property to work in a new or
different manner.
(5)
[
(7)
] Processing -- The physical
application of the materials and labor necessary to modify or to change the
characteristics of tangible personal property. The property being processed
may belong either to the processor or the customer, the only tests being whether
the property is processed and whether it will ultimately be sold. Direct use
of natural gas or electricity in processing will be referred to as
exempt
[
noncommercial
] use. Processing does not include remodeling
or any action taken to prolong the life of tangible personal property or to
prevent a deterioration of the tangible personal property being held for sale.
The repair of tangible personal property belonging to another by restoring
it to its original condition is not considered processing of that property.
The mere packing, unpacking, or shelving of a product to be sold will not
be considered to be processing of that product.
(6)
[
(8)
] Residential use -- Use
in a family dwelling or in a multifamily apartment complex or housing complex
or nursing home or in a building or portion of a building occupied as a home
or residence when the use is by the owner of the dwelling, apartment, complex,
home, or building or part of the building occupied. Residential use also includes
use in a dwelling, apartment, complex, house, or building or part of a building
occupied as a home or residence when the use is by a tenant who occupies the
dwelling, apartment, complex, house, or building or part of a building under
a contract for an express initial term of more than 29 consecutive days. Absent
a contract, only the period exceeding 29 consecutive days will be considered
residential use, when supported by valid documentation (i.e., receipts,
canceled
[
cancelled
] checks, etc.). For purposes of the exemption
for residential use of natural gas and electricity, nursing homes qualify
for exemption only for periods beginning after December 31, 1987.
(b)
Sales tax applicable. The furnishing of natural gas or
electricity is a sale of tangible personal property. All the provisions in
the Tax Code, Chapter 151, applying to the sale of tangible personal property,
apply to the sale of natural gas or electricity.
(c)
Gas and electricity are exempted from the taxes imposed
by this chapter when sold for:
[
Commercial uses taxable; noncommercial
uses exempt. The tax imposed by the Tax Code, Chapter 151, must be collected
on the sale of natural gas or electricity for commercial use. The sale of
natural gas or electricity for residential use or for use directly in manufacturing,
processing, or for other noncommercial uses is exempt.
]
(1)
residential use;
(2)
use in agriculture, including
dairy or poultry operations and pumping for farm or ranch irrigation;
(3)
direct or indirect use
or consumption, including electricity lost in the lines, by an electric utility
engaged in the purchase of electricity for resale;
(4)
direct use in:
(A)
powering equipment exempt under Tax Code, §151.318,
to process tangible personal property for sale as tangible personal property,
other than preparation of or storage of food for immediate consumption;
(B)
lighting, cooling and heating in the manufacturing
area during the actual manufacturing or processing of tangible personal property
for sale as tangible personal property, other than preparation or storage
of food for immediate consumption;
(C)
exploring for, producing, or transporting a
material extracted from the earth;
(D)
electrical processes, such as electroplating,
electrolysis, and cathodic protection;
(E)
the off-wing processing, overhaul, or repair
of a jet turbine engine or its parts for a certificated or licensed carrier
of persons or property; or
(F)
providing, under contract with or on behalf
of the United States government or foreign governments, defense or national
security-related electronics, classified intelligence data processing and
handling systems, or defense-related platform modifications or upgrades;
(G)
the repair, maintenance, or restoration of
rolling stock.
(d)
Use of gas or electricity
in an exempt manner by an independent contractor engaged by the purchaser
of the gas or electricity to perform one or more of the activities described
in subsection (c)(4) of this section is considered use by the purchaser of
the gas or electricity.
(e)
[
d
] Predominant use.
(1)
Natural gas or electricity used during a regular monthly
billing period for both exempt and taxable purposes under a single meter is
totally exempt or taxable based upon the predominant use of the natural gas
or electricity measured by that meter. A person who performs a processing,
manufacturing, or other
exempt
[
noncommercial
] function
continually must establish predominant use on 12 consecutive months of use.
(2)
If, in the regular course of business, a person performs
a processing, manufacturing, or other
exempt
[
noncommercial
] function only part of the year and a nonprocessing, nonmanufacturing,
or other
taxable
[
commercial
] function for the remainder
of the year, the predominant use may be established for that period of time
the processing, manufacturing, or other
exempt
[
noncommercial
] function occurs based on the predominant use during that period.
(3)
When determining the predominant use of natural gas
or electricity, utilities used to operate [
production
] machinery
exempt under subsection (c)(4)(A)
and for lighting, cooling, and heating
in the manufacturing area
during actual manufacturing or processing of
tangible personal property for sale
are exempt. Gas and electricity
used to operate lighting, cooling, and heating in manufacturing support areas
are taxable. Manufacturing support areas include, but are not limited to,
storage, engineering, office and accounting areas, research and development,
and break, eating, and restroom facilities. Utilities used in an area open
to the public for the purpose of marketing a product ready for sale are taxable.
Utilities used to operate other nonproduction machinery or equipment are taxable.
[
(4)
Persons whose use of
natural gas or electricity is solely in family dwellings will not be required
to furnish exemption certificates.]
[
(5)
A person whose use is
in multifamily apartment complexes, housing complexes, nursing homes, or other
residential buildings may be required to issue an exemption certificate if
one is necessary for the utility company to distinguish exempt residential
use from taxable commercial use.]
(f)
[
(e)
] Determining predominant use:
utility studies.
(1)
Persons claiming a sales tax exemption because the predominant
use of natural gas and electricity through a single meter is for processing,
manufacturing, fabricating, or other
taxable
[
noncommercial
] use must have performed a utility study to establish this predominant
exempt use. The study must list all uses of the utility, both exempt and
taxable
[
nonexempt
], the times of usage, the energy used,
and whether the use was taxable or exempt. Twelve consecutive months of utility
usage must be a part of the study. The kilowatt rating or
BTU
[
Btu
] rating, duty factor, where needed for cycling equipment, and electrical
or natural gas computations must be certified by a registered engineer or
a person with an engineering degree from an accredited engineering college.
The owner of the business must certify that all items using natural gas or
electricity (depending on which utility is covered by the study) are listed
and that the hours of use for each item are correct. The certification of
both the engineer and the owner must appear on the face of the study. If the
owner of the business appoints an agent to act on the owner's behalf, the
power of attorney must clearly state that the agent is attempting to qualify
the principal for a sales tax exemption, and if a refund of sales tax is involved,
the power of attorney must also state that a sales tax refund will be made
by the state through the utility company. A person in business less than 12
consecutive months may still apply for a sales tax exemption if a registered
engineer or a person with an engineering degree performs a study based upon
projected uses which shows the predominant use as exempt. A person claiming
an exemption based upon estimated use must be able to support the claimed
exemption with a study of actual use after 12 consecutive months of operation
if so requested by the comptroller.
(2)
The study must be completed and on file at the location
of the person claiming the exemption at the time an exemption certificate
is submitted to the utility company. Without the study, the claim for exemption
will be presumed to be invalid. Persons obtaining a sales tax refund without
a valid study will be assessed tax, penalty, and interest by the comptroller
on the full amount of the refund, if the exemption is not proved. If the exemption
certificate is fully completed with all information required by this section
and bears an original seal of a registered engineer or is attached to a signed
statement with an original signature from the owner of the business and a
person with an engineering degree from an accredited engineering college,
as required by paragraph (1) of this subsection, the utility company is not
required to make any additional inquiry before honoring the exemption request.
(3)
The comptroller may request a copy of the study for
review, either before or after the sales tax exemption is granted. Neither
the comptroller by reviewing a study nor the utility company by accepting
an exemption certificate is confirming the study's accuracy. Tax, penalty,
and interest will be assessed on the business owner if the study is proven
to be incomplete or inaccurate to the extent that the predominant use of the
natural gas or electricity is taxable.
(4)
If a sales tax refund is being claimed retroactively,
the study must take into account any changes in equipment or other items using
utilities, any changes in business activities, and any changes in square footage
being served by the meter.
(5)
This subsection does not apply to persons whose use
of natural gas or electricity is for processing, manufacturing, or other
exempt
[
noncommercial
] function if an industry-wide study
for that particular industry reflects that the natural gas or electricity
used would always qualify as exempt use. The industry-wide study must be submitted
to the comptroller's office for review and approval. A subsequent study may
be required, in the future, if factors relative to the original study change.
(g)
[
(f)
] Exemption certificates.
(1)
Exempt
[
Noncommercial
] users must
issue exemption certificates to the utility company to claim a sales tax exemption
or to obtain a refund of sales tax. The exemption certificate must be specific
as to the reason for the claimed exemption. For example, if a person is claiming
that the predominant use of the utility is for processing, the reason for
the exemption must state, "A valid and complete study has been performed which
shows that (insert the actual exempt percentage) of the natural gas or electricity
is for processing tangible personal property for sale in the regular course
of business."
(2)
The exemption is valid only as long as the person
continues to use natural gas and electricity in a manner which is for predominantly
exempt purposes. At the time the uses of the utilities change so that the
predominant use is
taxable
[
commercial
], it is the person's
responsibility to immediately notify the utility company in writing that the
exemption is no longer valid.
(3)
Persons whose use of
natural gas or electricity is solely in family dwellings will not be required
to furnish exemption certificates.
(4)
A person whose use of
natural gas and electricity is in multifamily apartment complexes, housing
complexes, nursing homes, or other residential buildings may be required to
issue an exemption certificate if one is necessary for the utility company
to distinguish exempt residential use from taxable use.
(h)
[
(g)
] Transportation of a material
extracted from the earth.
(1)
Sales or use tax is not due on natural gas or electricity
used to transport a material or its components extracted from the earth. Examples
of materials or components extracted from the earth would be oil, natural
gas, coal or coal slurry, crushed stone, sand and gravel, and water.
(2)
Sales or use tax is due on natural gas or electricity
used to transport a product which was manufactured from a material extracted
from the earth. Products which were manufactured from a material extracted
from the earth include substances which do not exist in nature or are not
components of crude oil, natural gas, coal, or other minerals extracted from
the earth.
(3)
A material will not be considered to be manufactured
when an additive is combined with a material for ancillary reasons, for example,
odorant added to natural gas.
[
(h)
Exemptions limited. Natural
gas and electricity exemptions are limited to those noncommercial uses covered
specifically in the Tax Code, §151.317.]
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 February 18, 2000.
TRD-200001251
Martin Cherry
Special Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: April 2, 2000
For further information, please call: (512) 463-3699