Part 1.
COMPTROLLER OF PUBLIC ACCOUNTS
Chapter 3.
TAX ADMINISTRATION
Subchapter O. STATE SALES AND USE TAX
34 TAC §3.316
The Comptroller of Public Accounts adopts an amendment to §3.316,
concerning occasional sales, without changes to the proposed text as published
in the January 4, 2002, issue of the
Texas Register
(27 TexReg 106).
This section is amended to implement House Bill 82, 77th Legislature, 2001.
Effective October 1, 2001, this legislation amended Tax Code, §151.321,
to exempt the first $5,000 of a qualified student organization's total receipts
from sales of taxable items in a calendar year if those receipts are not otherwise
exempted by Tax Code, §151.321. This change is reflected in subsection
(k)(3) of the proposed rule. Additional amendments are made for the purpose
of clarity.
No comments were received regarding adoption of the amendment.
This amendment is adopted under 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
Tax Code, Title 2.
The amendment implements Tax Code, §151.321.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 28, 2002.
TRD-200201248
Martin Cherry
Deputy General Counsel for Taxation
Comptroller of Public Accounts
Effective date: March 20, 2002
Proposal publication date: January 4, 2002
For further information, please call: (512) 463-3699
34 TAC §3.320
The Comptroller of Public Accounts adopts a new §3.320,
concerning Texas emissions reduction plan surcharge; off-road, heavy-duty
diesel construction equipment, with changes to the proposed text as published
in the December 28, 2001, issue of the
Texas Register
(26 TexReg 10798).
The new section implements Senate Bill 5, 77th Legislature, 2001. Senate
Bill 5 added Tax Code, §151.0515, which imposes a 1.0% surcharge on taxable
diesel construction equipment sold, leased, or rented on or after September
1, 2001. The comptroller administers the collection and remittance of the
surcharge under Tax Code, Chapter 151, and deposits the surcharges to the
credit of the Texas Emissions Reduction Plan Fund. The Texas Emissions Reduction
Plan Fund is administered by the Texas Natural Resource Conservation Commission
and is used to provide grants and other incentives to improve air quality
in Texas.
Subsection (c)(2) of the proposed rule has been corrected to reference
subsection (a)(1) instead of subsection (a)(6).
No comments were received regarding adoption of the new rule.
This new rule is adopted under 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 new rule implements Tax Code, §151.0515.
§3.320.Texas Emissions Reduction Plan Surcharge; Off-Road, Heavy-Duty Diesel Construction Equipment.
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Off-road, heavy-duty diesel construction equipment--Diesel
powered equipment of 50 horsepower or greater, other than motor vehicles,
that is used in the construction of improvements to realty such as roads,
buildings, and other permanent structures, or in the repair, restoration,
or remodeling of real property. Off-road, heavy-duty diesel construction equipment
includes accessories and attachments sold with the equipment. Off-road, heavy-duty
diesel construction equipment includes:
(A)
backhoes;
(B)
bore equipment and drilling rigs;
(C)
bulldozers;
(D)
compactors (plate compactors, etc.);
(E)
cranes;
(F)
crushing and processing equipment (rock and gravel crushers,
etc., used by contractors to process the construction materials they incorporate
into realty);
(G)
dumpsters and tenders;
(H)
excavators;
(I)
forklifts (rough terrain forklifts, etc.);
(J)
graders;
(K)
light plants (generators) and signal boards;
(L)
loaders;
(M)
mixers (cement mixers, mortar mixers, etc.);
(N)
off-highway vehicles and other moveable specialized equipment
(equipment, such as a motorized crane, that does not meet the definition of
a motor vehicle because it is designed to perform a specialized function rather
than designed to transport property or persons other than the driver);
(O)
paving equipment (asphalt pavers, concrete pavers, etc.);
(P)
rammers and tampers;
(Q)
rollers;
(R)
saws (concrete saws, industrial saws, etc.);
(S)
scrapers;
(T)
surfacing equipment;
(U)
tractors;
(V)
trenchers.
(2)
Surcharge--A 1.0% fee is imposed on the sale, lease, or
rental in Texas of new or used off- road, heavy-duty diesel construction equipment.
This surcharge is in addition to state and local sales taxes that are due
on the equipment and is for the benefit of the Texas Emissions Reduction Fund,
which is administered by the Texas Natural Resources Conservation Commission.
(3)
Total price--The entire amount a purchaser pays a seller
for the purchase, lease, or rental of off-road, heavy-duty diesel construction
equipment. The total price includes charges for accessories, transportation,
installation, services, and other expenses that are connected to the sale.
(b)
Collection of surcharge. A seller must collect the surcharge
from the purchaser on the total price of each sale, lease, or rental in Texas
of off-road, heavy-duty diesel construction equipment that is not exempt from
sales tax. The surcharge is collected at the same time and in the same manner
as sales tax. See §3.286 of this title (relating to Seller's and Purchaser's
Responsibilities) for information on the collection and remittance of sales
tax. The surcharge is collected in addition to state and local sales taxes
but is not collected on the amount of the sales tax.
(c)
Exemptions and exclusions.
(1)
No surcharge is due on the sale, lease, or rental of off-road,
heavy-duty diesel construction equipment that is exempt from sales tax. A
seller who accepts a valid and properly completed resale or exemption certificate,
direct payment exemption certificate, or other acceptable proof of exemption
from sales tax is not required to collect the surcharge. For example, a seller
may accept an exemption certificate in lieu of collecting sales tax and the
surcharge from a farmer who purchases a bulldozer to be used exclusively in
the construction or maintenance of roads and water facilities on a farm that
produces agricultural products that are sold in the regular course of business.
(2)
No surcharge is due on the sale, lease, or rental of off-road,
heavy-duty diesel equipment that is not used in construction. A seller may
accept an exemption certificate in lieu of collecting the surcharge even if
the sale, lease, or rental of the equipment is not exempt from sales tax.
For example, a purchaser who buys equipment listed in subsection (a)(1) of
this section for a purpose other than use in construction may issue an exemption
certificate that states that the equipment will not be used to construct improvements
to realty. The seller may accept the exemption certificate in lieu of collecting
the surcharge, but is required to collect sales tax if there is no exemption
from sales tax. Examples of non-construction activities include mining at
quarries, and oil and gas exploration and production at oil and gas well sites.
(3)
No surcharge is due on the sale, lease, or rental of off-road,
heavy-duty diesel construction equipment that is subject to use tax under
Tax Code, Chapter 151, Subchapter D. A purchaser who brings off-road, heavy-duty
diesel construction equipment into Texas for storage, use, or consumption
in this state, or in other situations in which use tax rather than sales tax
is due, is not required to pay or accrue the surcharge.
(d)
Reports and payments.
(1)
A seller must report and pay the surcharge in the same
manner as sales tax, but separate reports and payments for the surcharge are
required. A seller's reporting period (i.e., monthly, quarterly, or yearly)
and due date for the surcharge is determined by the amount of surcharge that
the seller collects. See §3.286 of this title (relating to Seller's and
Purchaser's Responsibilities).
(2)
A seller must report and pay the surcharge to the comptroller
on forms prescribed by the comptroller for the surcharge. A seller is not
relieved of the responsibility for filing a surcharge report and paying the
surcharge by the due date because the seller fails to receive the correct
form from the comptroller.
(3)
The penalties and interest imposed for failure to timely
file and pay the surcharge are the same as those imposed for failure to timely
file and pay sales tax. Likewise, the 0.5% discount for timely filing and
payment is applicable to surcharge reports and payments. No prepayment discount
will be paid a seller for prepayment of the surcharges.
(e)
Effective date.
(1)
The surcharge is due on the total price of off-road, heavy-duty
diesel construction equipment sold in Texas if the purchaser takes possession
of or title to the construction equipment after August 31, 2001 and before
October 1, 2008.
(2)
The surcharge is due on the total price, excluding separately
stated interest charges, of off- road, heavy-duty diesel construction equipment
leased under a financing lease, as defined in §3.294 of this title (relating
to Rental and Lease of Tangible Personal Property), if the lessee takes possession
of the construction equipment after August 31, 2001 and before October 1,
2008.
(3)
The surcharge is due on the lease payments for off-road,
heavy-duty diesel construction equipment that is leased under an operating
lease, as defined in §3.294, if the lessee takes possession of the construction
equipment after August 31, 2001 and before October 1, 2008.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on February 27, 2002.
TRD-200201242
Martin Cherry
Deputy General Counsel for Taxation
Comptroller of Public Accounts
Effective date: March 19, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 463-3699
34 TAC §3.368
The Comptroller of Public Accounts adopts a new §3.368,
concerning the certified public accountant audit program, without changes
to the proposed text as published in the December 21, 2001, issue of the
This section implements Senate Bill 1037, 77th Legislature, 2001. The section
establishes administrative and procedural guidelines for a new audit program
in which a taxpayer may hire a certified public accountant who is not employed
by the comptroller to perform a sales and use tax audit to determine a taxpayer's
tax liability under Tax Code, Chapter 151.
No comments were received regarding adoption of the new rule.
This new rule is adopted under 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
Tax Code, Title 2.
The new rule implements Tax Code, §151.0232.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 1, 2002.
TRD-200201283
Martin Cherry
Deputy General Counsel for Taxation
Comptroller of Public Accounts
Effective date: March 21, 2002
Proposal publication date: December 21, 2001
For further information, please call: (512) 463-3699
34 TAC §3.1281
The Comptroller of Public Accounts adopts a new §3.1281,
concerning fireworks tax, without changes to the proposed text as published
in the January 4, 2002, issue of the
Texas Register
(27 TexReg 108).
This new rule is adopted to implement House Bill 3667, 77th Legislature,
2001, which added Tax Code, Chapter 161. This new chapter imposes a 2.0% fireworks
sales tax on fireworks sold on or after October 1, 2001. The new rule provides
important information to taxpayers concerning the collection and remittance
of the fireworks tax.
No comments were received regarding adoption of the new rule.
This new rule is adopted under 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
Tax Code, Title 2.
The new rule implements Tax Code, §161.002, and Government Code, §614.075.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 27, 2002.
TRD-200201243
Martin Cherry
Deputy General Counsel for Taxation
Comptroller of Public Accounts
Effective date: March 19, 2002
Proposal publication date: January 4, 2002
For further information, please call: (512) 463-3699
Subchapter C. APPRAISAL DISTRICT ADMINISTRATION
34 TAC §9.417
The Comptroller of Public Accounts adopts a new §9.417,
concerning property tax exemption for organizations engaged primarily in charitable
activities, with changes to the proposed text as published in the December
28, 2001, issue of the
Texas Register
(26
TexReg 10801).
The new section is adopted to implement House Bill 1689, 77th Legislature,
2001, effective September 1, 2001.
No comments were received regarding adoption of the new section.
For purposes of clarity, the comptroller reformatted subsection (g) of
the proposed rule by moving a part of the text to a new subsection (g)(1)
and by adding a new subsection (g)(2) that references the chief appraiser's
current authority under Tax Code, §11.43(d), to grant filing deadline
extensions for property tax exemption applications. To maintain the structural
integrity of the rule, changes were also made to the numbering of paragraphs
(1)-(4) in subsection (g) of the proposed rule and to related references to
those subdivisions found in subsection (g)(3) of the proposed text. The comptroller
also added a line for the primary use of the property to Schedule A: Description
of real property on the Application for Primarily Charitable Organization
Property Tax Exemption (Form 50-299), as this line was inadvertently left
off the form that was submitted with the proposed rule.
This new section is adopted under Tax Code, §5.03, which
requires the comptroller to adopt rules establishing the minimum standards
for the administration and operation of an appraisal district, Tax Code, §5.07,
which requires the comptroller to prescribe the contents and form for the
administration of the property tax system, and Tax Code, §11.43(f), which
requires the comptroller to prescribe the contents and form for each kind
of property tax exemption.
The new section implements Tax Code, Chapter 11, Subchapter B, §11.184.
§9.417.Property Tax Exemption for Organizations Engaged Primarily in Charitable Activities.
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Local charitable organization--An organization that is
a chapter, subsidiary, or branch of a statewide charitable organization and
that is engaged primarily in performing functions that are listed in Tax Code, §11.18(d).
(2)
Statewide charitable organization--An organization that
is statewide and that is engaged primarily in performing functions that are
listed in Tax Code, §11.18(d).
(b)
A taxing unit may adopt a tax exemption for property that
a statewide or local charitable organization owns if the property is used
exclusively by the charitable organization or by other organizations that
are eligible for tax exemption under Tax Code, §11.18 or §11.184,
except as provided in subsection (c) of this section. The exemption may be
adopted either by the governing body of the taxing unit or by the voters at
an election that is called by the governing body of a taxing unit.
(c)
Use of exempt property by persons who are not charitable
organizations eligible for exemption does not result in the loss of an exemption
authorized by this section if the use is incidental to use by those charitable
organizations and limited to activities that benefit the charitable organization
that owns or uses the property.
(d)
An organization that seeks a tax exemption under this section
must obtain from the comptroller and submit with its application a determination
letter that verifies that the organization is exempt from sales tax and, if
applicable, franchise tax, as a charitable organization. For information or
procedures on obtaining a determination letter from the comptroller, see §3.322
of this title (relating to Exempt Organizations) and other publications that
the comptroller issues.
(e)
A determination by the comptroller that a statewide charitable
organization is exempt from sales tax and, if applicable, franchise tax, will
also constitute a determination of exempt status for any local charitable
organizations that have been identified in the statewide charitable organization's
application for determination. The comptroller will send a determination letter
to that statewide organization and to any subchapters that are included in
the statewide organization's application.
(f)
An organization must submit a copy of the comptroller's
determination letter to the chief appraiser at the same time that the organization
submits its application for property tax exemption. The chief appraiser shall
determine if the charitable organization is using its property exclusively
for charitable activities.
(g)
An organization must comply with the filing requirements
for application for property tax exemption that are stated in Tax Code, §11.43(d).
A request to the comptroller for a determination letter for purposes of compliance
with subsection (d) of this section does not automatically extend the filing
due date of April 30.
(1)
If an organization has not received a determination letter
from the comptroller, the organization may use the following procedure to
request that the chief appraiser extend the filing due date for an application
for exemption.
(A)
The organization must submit to the chief appraiser a written
request for an extension by no later than April 1;
(B)
The request for extension should state that the organization
has submitted a request for a determination letter to the comptroller and
should have as an attachment a copy of the request for determination letter
that the organization submitted to the comptroller;
(C)
The chief appraiser shall grant the organization's request
for extension for a period of not longer than 60 days if the organization
has complied with subparagraphs (A) and (B) of this paragraph;
(D)
The chief appraiser may verify with the comptroller that
a request for a determination letter has been submitted.
(2)
Notwithstanding paragraph (1) of this subsection, the chief
appraiser may extend the deadline for filing an application for exemption
at any time under the authority provided by Tax Code, §11.43.
(h)
If the chief appraiser, upon receipt of the application
for tax exemption, disagrees with the comptroller's determination, then the
chief appraiser may request a review of the determination by submitting a
written request to the comptroller.
(1)
The written request for reconsideration must be directed
to the manager of the Property Tax Division, must contain specific grounds
on which the chief appraiser disagrees with the comptroller's determination,
and must be accompanied by specific evidence that supports each ground that
the chief appraiser asserts.
(2)
The comptroller will respond to the written request for
reconsideration within 30 calendar days from the date on which the request
for reconsideration was received.
(3)
The comptroller's decision to uphold the determination
is conclusive evidence that an organization is engaged primarily in performing
charitable function. The decision is not subject to further appeal.
(i)
An exemption under this section expires at the end of the
fifth tax year after the year in which the exemption is granted. The organization
may obtain a new determination letter and reapply for the exemption.
(j)
An application for exemption must be substantially in the
form of the Application for Primarily Charitable Organization Property Tax
Exemption (Form 50-299). The comptroller adopts this form by reference. Copies
of the form are available for inspection at the office of the
Texas Register
or may be obtained from the Comptroller of Public Accounts,
P.O. Box 13528, Austin, Texas 78711. Copies may also be requested by calling
our toll-free number, 1- 800-252-9121. In Austin, call (512) 305-9999. From
a Telecommunications Device for the Deaf (TDD), call 1-800-248-4099, toll
free. In Austin, the local TDD number is (512) 463-4621.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 1, 2002.
TRD-200201284
Martin Cherry
Deputy General Counsel for Taxation
Comptroller of Public Accounts
Effective date: March 21, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 463-3699
34 TAC §9.419
The Comptroller of Public Accounts adopts a new §9.419,
concerning property tax exemption for motor vehicles leased for personal use,
with changes to the proposed text as published in the December 28, 2001, issue
of the Texas Register (26 TexReg 10801).
The new rule is adopted to implement Senate Bill 248, 77th Legislature,
2001, effective January 1, 2002.
During the proposed period, the comptroller received several comments and
made minor clarification changes to the proposed rule based on some of those
comments.
An Austin attorney submitted a comment that two provisions in the proposed
rule could be read to conflict each other and requested that the comptroller
clarify the matter. Although the proposed rule language permits lessors to
submit electronic images of affidavits if a chief appraiser has the capability
to accept them, another provision in the proposed rule mandates the use of
the model form of the Lessee's Affidavit of Primarily Non Income Producing
Vehicle Use (Form 50-285). To eliminate this perceived conflict, the comptroller
has clarified in subsection (c)(2)(A) that a form that is in substantial compliance
with Model Form 50-285 may be used and deleted the proposed language in subsection
(c)(3) that required the mandatory use of Model Form 50-285. The comptroller
included specific language in subsection (c)(3) that a signed and notarized
lessee's affidavit may be electronically imaged. The same Austin attorney
submitted another comment noting a misreference in the rule, but the aforementioned
changes eliminated that problem.
Harris County Appraisal District (HCAD) submitted a comment that the comptroller
clarify that the rule should not be read to limit the chief appraiser's authority
to enter into an agreement for electronic exchange of information required
by rule in a format agreed to by the chief appraiser and the property owner.
The comptroller made this clarification by adding subsection (c)(6).
Based on staff's recommendation, the comptroller has included a phrase
in subsection (e)(1) that clarifies that the chief appraiser and the property
owner may reach an agreement to modify the notice and inspection terms noted
in this rule. This phrase provides clarification that chief appraisers have
some flexibility to modify by agreement the notice and inspection procedures
in the rule.
HCAD submitted a comment that the comptroller should include vehicle lease
date on the exemption application and rendition form. The comptroller has
made the change because it agrees with HCAD's comment that the lease date,
and not the purchase date, is relevant for the exemption.
Collin County Appraisal District (Collin CAD) submitted a comment that
the comptroller should include the rendition filing deadline information on
the Lessor's Rendition or Property Report for Leased Automobiles (50-288).
The comptroller has made the change to be consistent with other comptroller
adopted rendition forms.
No other changes were made for the reasons noted below:
Collin CAD submitted comments that the comptroller should include a filing
deadline on the Lessee's Affidavit of Primarily Non Income Producing Vehicle
Use (50-285) and should also insert on that form that the term "person" relative
to notification by the lessee of any changes in the use of the leased vehicle
includes the term "company." The comptroller made no changes based on these
comments because there is no statutory deadline for filing Lessee's Affidavit
and because the legal definition of "person" already includes all business
entities.
Collin CAD submitted a comment that the comptroller should include a notation
on the Lessee's Affidavit of Primarily Non Income Producing Vehicle Use (50-285)
and the Lessor's Application for Personal Use Automobile Exemptions (50-286)
that the vehicles may be taxable by the city. The comptroller made no changes
because most cities will exempt personal leased vehicles, the inclusion of
a notation of possible taxation by the city could mistakenly lead lessees
to assume the vehicle is not totally exempt in most jurisdictions.
Collin CAD submitted a comment that the comptroller should include on the
Lessor's Rendition or Property Report for Leased Automobiles (50-288) a list
of units having taxing jurisdictions over the listed vehicles. The comptroller
made no changes because such information would be inconsistent with all other
comptroller adopted rendition forms.
HCAD submitted a comment requesting that the comptroller include specific
language permitting lessor to attach a "tabular" list containing required
vehicle related information. The CAD's concern was that a literal reading
of the rule would limit a lessor's listing of vehicles in an electronic version
to only five vehicles per page since the proposed hard copy rendition form
provides space for information on five vehicles. The comptroller made no changes
because it is unnecessary. The inclusion by lessor of information on an unlimited
number of vehicles is inherent in the rule's provisions for the electronic
transfer of required vehicle information to the appraisal district.
HCAD submitted another comment that the rule should permit the lessor to
file a combined exemption application and rendition. The comptroller made
no changes because exemption applications and property renditions are historically
separate documents containing different information and separate filing deadlines.
The suggested change might have unintended consequences and could result in
potential open records problems for same tax office because information on
rendition forms is confidential.
HCAD submitted a comment that the proposed rule requires the chief appraiser
to provide two notices (a notice to inspect and a notice of reasonable date
and time with identification of affidavit) to lessor not required by the Tax
Code and that such notices exceed the scope of the comptroller's authority.
The comptroller made no changes based on this comment. Senate Bill 248 and
Tax Code, §5.03, expressly authorizes the comptroller to promulgate rules
to insure uniformity in the administration of an exemption involving thousands
of motor vehicles located in an unknown number of jurisdictions throughout
the state. The notice and procedure requirements in the rule are designed
to provide a uniform and orderly method for chief appraisers to request and
obtain information from vehicle owners to properly administer the exemption.
As previously noted in this preamble, the comptroller did insert a phrase
to subsection (e)(1) to provide more flexibility to chief appraisers.
HCAD submitted a comment that subsection (e)(2) of the proposed rule unduly
limits chief appraisers' authority because it requires that a chief appraiser
should first attempt to obtain vehicle related information from the lessor,
and to contact lessee only if the lessor does not provide the requested information.
HCAD stated that there would be a need to directly contact a lessee to obtain
relevant information that are only available to the location of the leased
vehicle. The comptroller made no changes because subsection (e)(2) is consistent
with a reliable assumption that the owner of property is the appropriate party
to provide to governmental officials information concerning that property.
The language is necessary to help ensure uniform and orderly administration
of the exemption in the least invasive manner.
HCAD submitted a comment that the rule is unduly restrictive because it
states that a properly executed lessee's affidavit is prima facie evidence
that the motor vehicle is not held for the production of income and is used
for non-income producing activities. The comptroller made no changes based
on this comment. A notarized affidavit containing a clear and prominent warning
of the consequences of providing false statements is adequate basis for a
presumption of the truthfulness of the information contained within and a
presumption that lessee will notify the lessor of any change in vehicle use
requiring removal of the exemption. Nothing in the rule precludes a chief
appraiser from rebutting this assumption with reliable evidence.
HCAD submitted a comment that subsection (f)(2) should be deleted because
the language that the evidentiary provision in subsection (f) do not apply
to proceedings or decisions of the Appraisal Review Board (ARB) would encourage
ARBs to follow different standards than the appraisal district staff follows
in granting the exemption. The comptroller made no changes. Subsection (f)(2)
was included to merely restate that an ARB has broad discretion to consider
any relevant evidence, and to emphasize the state's limited authority over
local ARB proceedings.
This new section is adopted under Tax Code, §5.03, which
requires the comptroller to adopt rules establishing the minimum standards
for the administration and operation of an appraisal district, Tax Code, §5.07,
which requires the comptroller to prescribe the contents and form for the
administration of the property tax system, and Tax Code, §11.43(f), which
requires the comptroller to prescribe the contents and form for each kind
of property tax exemption.
The new section implements Tax Code, Chapter 11, Subchapter B, §11.252.
§9.419.Procedures for Determining Property Tax Exemption for Motor Vehicles Leased for Personal Use.
(a)
Effective Date. This section is effective for motor vehicles
that are leased on or after January 2, 2001.
(b)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Lease--An agreement whereby an owner of a motor vehicle
for consideration gives exclusive use of a motor vehicle to another for a
period that is longer than 180 days.
(2)
Lessee--A person who enters into a lease for a specific
motor vehicle primarily for the personal use of the lessee or the lessee's
family.
(3)
Lessor--A person who owns a motor vehicle that is leased
to another person.
(4)
Lessee's Affidavit--A sworn statement that a lessee executes
to attest that the lessee does not hold the leased motor vehicle for the production
of income and does not primarily use the leased motor vehicle for the production
of income.
(5)
Motor vehicle--A passenger car or truck with a shipping
weight of 9,000 pounds or less.
(6)
Reasonable date and/or time--A work weekday, Monday through
Friday, and a time that is after 8:00 a.m. and before 5:00 p.m., unless the
appraisal district and the lessor agree otherwise.
(c)
The comptroller will make available model forms that are
adopted by reference in paragraph (1) of this subsection. Copies of the form
are available for inspection at the office of the
Texas Register
or may be obtained from the Comptroller of Public Accounts,
P.O. Box 13528, Austin, Texas 78711. Copies may also be requested by calling
our toll-free number, 1- 800-252-9121. In Austin, call (512) 305-9999. From
a Telecommunications Device for the Deaf (TDD), call 1-800-248-4099, toll
free. In Austin, the local TDD number is (512) 463-4621.
(1)
The comptroller adopts by reference the following model
forms:
(A)
Lessee's Affidavit of Primarily Non Income Producing Vehicle
Use (Form 50-285);
(B)
Lessor's Application for Personal Use Lease Automobile
Exemptions (Form 50-286); and
(C)
Lessor's Rendition or Property Report for Leased Automobiles
(Form 50-288).
(2)
A chief appraiser or lessor must use the comptroller model
forms that are adopted by reference in paragraph (1) of this subsection, unless
the non-model form:
(A)
for Lessee's Affidavit of Primarily Non Income Producing
Vehicle Use, for Lessor's Application for Personal Use Lease Automobile Exemptions,
and Lessor's Rendition or Property Report for Leased Automobiles substantially
complies with Form 50-285, Form 50-286, and Form 50-288 by using the same
language in the same sequence as the model form;
(B)
is an electronic version of a comptroller model form and
preserves the same language in the same sequence as the comptroller model
form; or
(C)
has been approved by the comptroller in writing before
the form is used.
(3)
After a lessee's affidavit is signed by a lessee and properly
notarized, a lessor may make an electronic image of the lessee's affidavit
and may produce the electronic image of the affidavit to the chief appraiser
when an inspection is requested, subject to the condition of subsection (e)(1)(D)
of this section.
(4)
Subject to the limitations that are provided in paragraph
(2) of this subsection, if a chief appraiser uses a form other than the one
that the comptroller has adopted, then the chief appraiser must make the form
available to the lessor. A chief appraiser may not mandate the use of his
form in lieu of the comptroller model form and may not deny a lessor's claim
for exemption based solely on the lessor's failure to use the chief appraiser's
form.
(5)
A Lessee's Affidavit of Personal Use of Leased Vehicle,
which the comptroller prescribed on September 10, 2001, is the acceptable
exemption form until the effective date of the comptroller model forms that
are adopted by reference in paragraph (1) of this subsection.
(6)
No provision in this section should be construed as limiting
the chief appraiser's authority to enter into an agreement for electronic
exchange of information covered by this section in a format agreed to by the
chief appraiser and the lessor.
(d)
A lessor satisfies the requirements of Tax Code, §11.252,
for exemption of leased motor vehicles if the lessor:
(1)
properly completes and timely files with the chief appraiser
the Lessor's Rendition or Property Report for Leased Automobiles (Form 50-288);
(2)
properly completes and timely files with the chief appraiser
the Lessor's Application for Personal Use Lease Automobile Exemptions (Form
50-286);
(3)
receives Lessee's Affidavit of Primarily Non Income Producing
Vehicle Use (Form 50-285) that the lessee executed on or before the date on
which the required forms that are enumerated in paragraphs (1) and (2) have
been filed; and
(4)
maintains each Lessee's Affidavit of Primarily Non Income
Producing Vehicle Use (Form 50-285) that pertains to each leased motor vehicle
for which the lessor seeks an exemption;
(e)
A chief appraiser may inspect and/or obtain copies of lessees'
affidavits that the lessor maintains.
(1)
Unless agreed to otherwise, a lessor and a chief appraiser
shall use the following procedures when the chief appraiser proposes to inspect
lessees' affidavits on leased motor vehicles for which the lessor seeks an
exemption.
(A)
No less than 10 days prior to the inspection, the chief
appraiser shall provide the lessor with notice of the chief appraiser's intention
to inspect the lessees' affidavits in the lessor's possession or control.
The notice must state a reasonable date and time when the chief appraiser
proposes to inspect the lessees' affidavits and shall identify the affidavits
that will be subject to inspection.
(B)
If the proposed date or time is not convenient, then the
lessor may propose an alternate reasonable date or time by notifying the chief
appraiser in writing.
(C)
The lessor shall provide the chief appraiser with reasonable
accommodations to inspect and copy any of the lessees' affidavits, or shall
permit the chief appraiser to take the affidavits off premises for a period
of no less than 48 hours to inspect and copy.
(D)
The lessor may provide electronic images of the lessees'
affidavits, unless the chief appraiser does not have equipment to receive
or read electronic images. If the image is not sufficiently clear to distinguish
the characteristics of a lessee's handwriting and to see the notarized signature
and any other relevant details, the chief appraiser may request to inspect
an original lessee's affidavit.
(E)
If the lessor is located more than 150 miles from the appraisal
district's office, then the chief appraiser may submit a written request that
the lessor either copy and mail the identified lessees' affidavits or send
the original affidavits to the chief appraiser for at least 14 days for inspection
and copying. The chief appraiser and the lessor may determine who should bear
the costs of copying and mailing.
(2)
A chief appraiser should first attempt to obtain information
from the lessor. If the lessor does not provide the requested information
within the specified time period, then the chief appraiser may contact the
lessee directly.
(f)
A properly executed Lessee's Affidavit of Primarily Non
Income Producing Vehicle Use (Form 50-285) is prima facie evidence that the
motor vehicle is not held for the production of income and is used primarily
for non-income producing activities.
(1)
A chief appraiser shall also consider the following evidence
of primarily non-income producing use:
(A)
an affidavit by the lessee's spouse or other credible person
who has information about the use of the leased motor vehicle and mileage
records; and
(B)
a statement by the lessee's employer that the motor vehicle
was not used or required to be used in the lessee's employment.
(2)
Since the rulemaking authority that is given the comptroller
does not extend to the Appraisal Review Board, this subsection does not apply
to proceedings or decisions of the Appraisal Review Board.
(g)
If a chief appraiser has reason to question, in whole or
in part, the validity of the lessor's application for exemption, then the
chief appraiser may investigate and shall notify the lessor of the chief appraiser's
intent to investigate. The notice that is required by this rule shall:
(1)
identify the motor vehicle that the chief appraiser questions
as qualifying for the exemption;
(2)
state separately the reason for questioning the claimed
exemption or lessee's affidavit;
(3)
specify the additional information that the chief appraiser
seeks; and
(4)
state the due date upon which the requested information
must be delivered.
(h)
If a chief appraiser determines that some of the motor
vehicles that the lessor claims in the application for exemption do not qualify
for exemption, then the chief appraiser may modify the exemption by disallowing
the amount of value that the non-exempt leased motor vehicles represent, but
shall grant the exemption on the remaining value of the leased motor vehicles.
Any notice of modification or denial of the claimed exemption shall be made
in accordance with the notice requirements of Tax Code, §11.43 and §11.45.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 1, 2002.
TRD-200201285
Martin Cherry
Deputy General Counsel for Taxation
Comptroller of Public Accounts
Effective date: March 21, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 463-3699
Chapter 67.
HEARINGS ON DISPUTED CLAIMS
34 TAC §67.57
The Employees Retirement System of Texas (ERS) adopts amendments
to 34 TAC §67.57, concerning reporters and transcripts, without changes
to the proposed text as published in the January 18, 2002, issue of the
This section is amended to clarify the means by which the official record
shall be made, and to provide that any motion that results in additional costs
associated with official reporting of the hearing will be paid by the person
or agency making the motion.
No comments were received concerning these amendments.
The amendments are adopted under Texas Government Code Annotated §815.102,
which provides that the Board of Trustees may adopt rules for the transaction
of any business of the Board. No other statutes are affected by these adopted
amendments.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 26, 2002.
TRD-200201174
Sheila W. Beckett
Executive Director
Employees Retirement System of Texas
Effective date: March 18, 2002
Proposal publication date: January 18, 2002
For further information, please call: (512) 867-7282
34 TAC §73.11
The Employees Retirement System of Texas (ERS) adopts amendments
to 34 TAC §73.11, concerning the supplemental retirement program, without
changes to the proposed text as published in the January 18, 2002, issue of
the
Texas Register
(27 TexReg 461).
This section is amended to revise the requirements that must be met in
order for military service credit to be creditable in the supplemental program.
No comments were received concerning these amendments.
The amendments are adopted under Texas Government Code §815.102,
which provides that the Board of Trustees may adopt rules for the transaction
of any business of the Board. No other statutes are affected by these adopted
amendments.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 26, 2002.
TRD-200201175
Sheila W. Beckett
Executive Director
Employees Retirement System of Texas
Effective date: March 18, 2002
Proposal publication date: January 18, 2002
For further information, please call: (512) 867-7282
34 TAC §75.1
The Employees Retirement System of Texas (ERS) adopts amendments
to 34 TAC §75.1, concerning filing of claims, with changes to the proposed
text as published in the January 18, 2002, issue of the
Texas Register
(27 TexReg 462). Section 75.1(c)(10)(G) was further
amended in a non-substantive way to clarify the certification that must be
submitted in an application for benefits under Texas Government Code, Chapter
615.
This section is amended to reflect changes made pursuant to House Bill
877 and House Bill 2446, 77th Legislative Session, codified in Texas Government
Code Annotated, Chapter 615.
No comments were received concerning these amendments.
The amendments are adopted under Texas Government Code §615.121,
which provides that the Board of Trustees may adopt rules to administer this
section of the Texas Government Code, and under Texas Government Code Annotated §815.102,
which provides that the Board of Trustees may adopt rules for the transaction
of any business of the Board. No other statutes are affected by these adopted
amendments.
§75.1.Filing of Claims.
(a)
Claims for benefits under Texas Government Code, Chapter
615, may be initiated by the deceased employee's department, any applicant
for benefits, if an adult, or by the representative of any minor children
for whom benefits are being claimed.
(b)
No claim for benefits on behalf of a child born after the
death of the law enforcement officer or fire fighter will be paid, unless
it is accompanied by a certificate of the attending physician that the child
was conceived during the decedent's lifetime.
(c)
The following documents or copies of the documents shall
be submitted in an application for benefits under Texas Government Code, Chapter
615, unless the executive director waives their submission:
(1)
a sworn statement from the person making the claim giving
the date of death, the name and address of the surviving spouse, if there
is one, and the names, addresses, and birth dates of all surviving children
of the decedent. If the decedent left no surviving spouse or children, the
names and addresses of surviving parents of the decedent shall be provided.
The names and addresses of any persons caring for minors who may be eligible
for benefits shall be given;
(2)
a certified copy of the death certificate;
(3)
a certified copy of the autopsy report, if any;
(4)
a copy of the marriage certificate showing marriage between
the surviving spouse and the deceased;
(5)
a certified copy of the birth certificate of each surviving
child of the deceased;
(6)
affidavits from any witnesses detailing the facts of the
fatality;
(7)
certified copies of any investigative reports;
(8)
a sworn statement from the employer or authorized representative
of the department that, at the time of the fatal injury, the deceased held
a position covered by the terms of Texas Government Code, Chapter 615, and
that the death was the result of risk or hazard inherent to that position;
(9)
a copy of the decedent's birth certificate, if benefits
are being claimed for parents;
(10)
a certification from the appropriate authority as follows:
(A)
if the decedent was a paid law enforcement officer, as
defined in Texas Government Code, §615.003(1), a certification from the
Texas Commission on Law Enforcement Officer Standards and Education that the
decedent was a commissioned peace officer certified by that commission;
(B)
if the decedent was a paid fireman, as defined in Texas
Government Code, §615.003(10) or §615.003(11), a certification from
the Commission on Fire Protection Personnel Standards and Education that the
decedent was certified by that commission, or a certification from the head
of the state agency or political or legal subdivision of the state for whom
the decedent worked that aircraft crash and rescue fire fighting were the
decedent's principal duties at the time of his or her death;
(C)
if the decedent was a member of an organized volunteer
fire department, as defined in Texas Government Code, §615.003(12), a
certification from the head of the organized volunteer fire department that
the organized volunteer fire department of which the decedent was a member
consists of not less than 20 active members; conducts a minimum of two drills
each month, with each drill being at least two hours long and attended by
a majority of all active members; and renders fire fighting services without
remuneration;
(D)
if the decedent was a paid probation officer, as defined
in Texas Government Code, §615.003(2), a certification from the district
judge or district judges who appointed the decedent or for whom the decedent
worked that the decedent had the qualifications and duties set out in the
Texas Code of Criminal Procedure, Article 42.12, §10, 1965, as amended;
(E)
if the decedent was a paid parole officer, as defined in
Texas Government Code, §615.003(3), a certification from the executive
director of the Board of Pardons and Paroles that the decedent was an officer
of the division of parole supervision and had the qualifications and duties
set out in the Texas Code of Criminal Procedure, Article 42.12, §§26-29,
1965, as amended;
(F)
if the applicant alleges that the decedent was within the
protected class defined as supervisory personnel in a county jail in Texas
Government Code, §615.003(7), a certification by the sheriff that the
decedent was appointed as jailer or guard of a county jail and performed a
security, custody, or supervisory function over the admittance, confinement,
or discharge of prisoners, and a certification from the Texas Commission on
Law Enforcement Officer Standards and Education that the decedent was certified
by that commission;
(G)
if the applicant alleges that the decedent was within the
protected class defined as performing emergency medical services or operation
of an ambulance in Texas Government Code, §615.003(13), a certification
by the Texas Department of Health that the decedent was certified as at least
an "emergency care attendant;"
(11)
a newspaper account, if any, of the fatality; and
(12)
a copy of the income tax return filed by the decedent
in the year prior to death, if benefits are being claimed for surviving children.
(d)
The executive director may require any additional information
or affidavits as are necessary to establish the validity of the claim.
(e)
Payment on behalf of a minor child will be made only to
a surviving natural parent with custody of the child, to a surviving adoptive
parent with custody of the child, or to a court-appointed guardian of the
child's estate.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 26, 2002.
TRD-200201176
Sheila W. Beckett
Executive Director
Employees Retirement System of Texas
Effective date: March 18, 2002
Proposal publication date: January 18, 2002
For further information, please call: (512) 867-7282
34 TAC §75.2
The Employees Retirement System of Texas (ERS) adopts amendments
to 34 TAC §75.2, concerning additional benefit claims, without changes
to the proposed text as published in the January 18, 2002, issue of the
This section is amended to reflect changes made pursuant to House Bill
877, 77th Legislative Session, codified in Texas Government Code Annotated,
Chapter 615.
No comments were received concerning these amendments.
The amendments are adopted under Texas Government Code §615.121,
which provides that the Board of Trustees may adopt rules to administer this
section of the Texas Government Code, and under Texas Government Code Annotated §815.102,
which provides that the Board of Trustees may adopt rules for the transaction
of any business of the Board. No other statutes are affected by these adopted
amendments.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 26, 2002.
TRD-200201177
Sheila W. Beckett
Executive Director
Employees Retirement System of Texas
Effective date: March 18, 2002
Proposal publication date: January 18, 2002
For further information, please call: (512) 867-7282
Chapter 301.
RULES OF THE TEXAS STATEWIDE EMERGENCY SERVICES RETIREMENT FUND
Subchapter NN. FIREWORKS TAX
Chapter 9.
PROPERTY TAX ADMINISTRATION
Part 4.
EMPLOYEES RETIREMENT SYSTEM OF TEXAS
Chapter 73.
BENEFITS
Chapter 75.
HAZARDOUS PROFESSION DEATH BENEFITS
Part 11.
OFFICE OF THE FIRE FIGHTERS' PENSION COMMISSIONER