34 TAC §3.360
The Comptroller of Public Accounts proposes an amendment
to §3.360, concerning customs brokers. This section is being amended
to implement House Bill 109, 78th Regular Session of the Texas Legislature.
Effective January 1, 2004, the legislation amends Tax Code §151.157, §151.158, §151.307, §151.406, §151.712
and adds §151.1575 regarding new documentation requirements for customs
broker export certifications, license fees and procedures for brokers, stamp
fees, bonds or securities, penalties, and other customs broker documentation,
export verification, reporting, and record-keeping requirements. Other amendments
to the language of the proposed section are for the purposes of clarity.
James LeBas, Chief Revenue Estimator, 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. LeBas 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 additional information regarding tax responsibilities.
This rule is adopted under 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 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 the Tax Code, Chapter 151.
§3.360.Customs Brokers (Tax Code §§151.157, 151.1575, 151.158, 151.307, and 151.172)
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Employee--A person who is authorized by his employer to
perform customs transactions or related services on behalf of the employer,
is compensated by the employer with a regular salary or wages, is under the
direct control and supervision of the employer, and from whose salary or wages
the employer is required to and actually does deduct and withhold a tax under
federal law. This definition applies to employees of customs brokers and employees
of verification contractors.
(2)
Licensed customs broker--A person who is licensed by the
United States Customs Service to act as a
customs
[
custom house
] broker and who holds a Texas Customs Broker's License issued by the
comptroller as provided for in this section.
(3)
Total value of property--The sales price,
as shown on receipts and invoices of all property for which a licensed customs
broker issued export certification forms during a calendar quarter.
(4)
Total amount of tax on property--The total
amount of all Texas state and local sales and use taxes paid on property for
which a licensed customs broker issued export certification forms during a
calendar quarter.
(5)
Total amount of tax refunded- The total
amount of all Texas state and local sales and use taxes that retailers refunded
to a customs broker during a calendar quarter.
(6)
[
(3)
] Verification contractor--An
independent contractor who, for consideration and under a written contract
with a licensed customs broker,
monitors the export of property on behalf
of a licensed customs broker as provided in subsection (b)(1) of this section
[
facilitates the monitoring of exports to be certified by the
broker
]. Unless the context clearly indicates otherwise, all references
in this section to a verification contractor include an employee of a verification
contractor.
(b)
Certification of exports. Only a licensed customs broker
or an employee of a licensed customs broker may fully or partially prepare,
issue, and/or sign a valid export certification form as provided for in this
section and in §3.323 of this title (relating to Imports and Exports).
A retailer who receives documentation that is valid under this section certifying
that delivery was made to a point outside of the territorial limits of the
United States should refer to §3.323(e) for information regarding refunds.
A licensed customs broker, or an authorized employee of the customs broker,
may issue an export certification form only if the custom broker or authorized
employee:
(1)
personally witnesses, or a verification
contractor personally witnesses, the transportation of property across the
border of the United States;
(2)
personally witnesses the property being
placed on a common carrier for delivery outside the territorial limits of
the United States; or
(3)
verifies by performing all of the following
actions that the purchaser is transporting the property to a destination outside
of the territorial limits of the United States:
(A)
examines a passport, laser visa identification card, or
picture foreign voter registration identification that proves that the purchaser
of the property resides in a foreign country;
(B)
requires that the purchaser produce the property and the
original receipt for the property so the customs broker or authorized employee
can verify that the property is the same property as described in the purchaser's
sales receipt;
(C)
requires that the purchaser state the foreign country of
destination, which must be the foreign country in which the purchaser resides,
the date and time the property is expected to arrive in the foreign country
destination, the date and time the property was purchased, the name and address
of the retailer from whom the purchaser bought the property, the sales price
and quantity of the property, and a description of the property;
(D)
requires that the purchaser sign a form:
(i)
that states that purchaser has provided the information
and documentation required in paragraph (3) of this subsection;
(ii)
that states "Providing false information to a customs
broker is a Class B misdemeanor" clearly on the form; and
(iii)
that contains a notice to the purchaser that property
not exported to a foreign country is subject to Texas sales and use tax and
the purchaser is liable for payment of an amount equal to tax on the value
of the property, as well as, other possible civil liabilities and criminal
penalties, if the purchaser improperly obtains a refund of taxes relating
to the property; and
(E)
requires that the purchaser produce the following travel
documentation for inspection by the customs broker or authorized employee:
(i)
if the purchase was made in a county that does not border
the United Mexican States, the purchaser's Form I-94, Arrival/Departure record,
or its successor, as issued by the Bureau of Citizenship and Immigration Security
of the United States Department of Homeland Security; or
(ii)
if the purchase was made in a county that does not border
the United Mexican States, the purchaser's travel documentation, e.g. airline
or bus ticket; and
(4)
circles and writes or states "exported"
next to each item to be exported on purchaser's original receipt.
(c)
Texas Customs Broker's License; prerequisites. A person
may apply to the comptroller for a Texas Customs Broker's License, which is
a license to issue export certification forms for the purpose of claiming
exemption from Texas sales and use taxes. To obtain a license, a person must:
(1)
be currently licensed by the United States Customs Service
to act as a custom house broker;
(2)
submit an application in the form prescribed by the comptroller;[
and
]
(3)
pay an annual license fee of $300 for
each place of business from which the customs broker intends to issue export
certification forms;
(4)
post a bond or security as required in
subsection (h) of this section; and
(5)
[
(3)
] be current in payment of all
taxes and fees administered by the comptroller.
(d)
Form of application. The comptroller will prescribe an
application form for a Texas Customs Broker's License, which must include
or be accompanied by the following:
(1)
a copy of the applicant's license to act as a
customs
[
custom house
]broker issued by the United States Customs
Service;
(2)
the applicant's name, mailing address, primary business
address, business telephone number, home address, and home telephone number,
and the names, home addresses, and home telephone numbers of all the general
partners (if the applicant is a partnership), the charter number, charter
date, federal employers identification number, and the names, home addresses,
and home telephone numbers of the officers and directors (if the applicant
is a corporation), or the names, home addresses, and home telephone numbers
of the members (if the applicant is an
entity
[
association
] other than a partnership or corporation);
(3)
the names, mailing addresses, primary business addresses,
business telephone numbers, home addresses, and home telephone numbers of
all verification contractors and all authorized employees of verification
contractors, and the names, home addresses, and home telephone numbers of
all the general partners (if the verification contractor is a partnership),
the charter number, charter date, federal employers identification number,
and the names, home addresses, and home telephone numbers of the officers
and directors (if the verification contractor is a corporation), or the names,
home addresses, and home telephone numbers of the members (if the verification
contractor is an
entity
[
association
] other than a partnership
or corporation), and the date of contract of all verification contractors;
(4)
the names, home addresses, and home telephone numbers of
all employees who are authorized to certify exports in the name of the applicant
and the date of hire of all such employees;
(5)
a copy of each authorized employee's power of attorney
to certify exports in the name of the applicant;
(6)
the trade name of the applicant's business and the address
of each location where export certifications are to be fully or partially
prepared;
(7)
the original signature or signatures of the applicant (if
he is a sole proprietor), an officer or director (if the applicant is a corporation),
all general partners (if the applicant is a partnership), or an authorized
member (if the applicant is an association other than a corporation or partnership),
and the original signatures of all employees of the broker;
(8)
the social security number of each employee, verification
contractor, authorized employee of a verification contractor, and the social
security number of the applicant (if he is a sole proprietor), each general
partner (if the applicant is a partnership), each officer and director (if
the applicant is a corporation), or each member (if the applicant is an association
other than a partnership or corporation); and
(9)
any other information the comptroller requires.
(e)
Annual customs broker license and fee.
[
Duration of license. A
]
An annual customs brokers
license
issued under this section continues in effect
through December 31st each
year unless
[
until
] canceled by the broker or suspended or
revoked by the comptroller
before the expiration date
. All
expired,
canceled, suspended, or revoked licenses must be immediately
returned to the comptroller or they will be subject to confiscation.
The annual license fee is non-refundable but the fee may be prorated on a
$75 per-quarter basis as follows:
(1)
$300 fee for a license with an effective
date beginning January 1st through March 31st.
(2)
$225 fee for a license with an effective
date beginning April 1st through June 30th.
(3)
$150 fee for a license with an effective
date beginning July 1st through September 30th.
(4)
$75 fee for a license with an effective
date beginning October 1st through December 31st of a calendar year.
(f)
Display of license. An original Texas Customs Broker's
License must be prominently displayed at each place of business of the broker
where export certification forms are fully or partially prepared.
(g)
Locations outside the United States. No Texas Customs Broker's
Licenses will be issued for locations beyond the territorial limits of the
State of Texas
[
United States
].
(h)
Bond or security. A licensed customs broker
is required to post a bond or security in the amount of $5,000, plus an additional
$1,000 for each place of business from which the customs broker intends to
issue export certification forms.
(1)
The security may be in the form of cash, a certificate
of deposit, a letter of credit, or another instrument of value acceptable
as security to the comptroller.
(2)
The comptroller may forfeit a customs broker's bond or
security and apply the amount to any liabilities due for unpaid taxes, penalties,
interest, license fees, stamp fees, and other penalties imposed for any violations
of the Tax Code or this section.
(3)
A licensed customs broker, who has a bond or security forfeited
by the comptroller, must immediately post another bond or security as required
by the comptroller.
(4)
A customs broker must send the comptroller a written request
to obtain release of the bond or security once the broker has ceased to do
business in Texas. The comptroller may release a bond or security once a customs
broker has ceased doing business in Texas and the comptroller verifies that
the customs broker has no outstanding liabilities or penalties due.
(i)
[
(h)
] Verification contractors. A
licensed customs broker may enter into a written contract with a verification
contractor to facilitate the monitoring of exports certified by the broker.
A verification contractor may authorize by power of attorney his
full-time
[
full-
] or part-time employee to perform verification services
on his behalf. A verification contractor may not fully or partially prepare,
issue, and/or sign export certification forms and may not affix export certification
stamps to export certification forms. A verification contractor's contract
must be submitted to and approved by the comptroller,
before the verification
contractor may
[
prior to which the verification contractor may not
] perform [
valid
]export verification services[
described
in this subsection
].
(j)
[
(i)
] Export certification stamps.
The comptroller will produce or have produced export certification stamps
to be affixed to export certification forms.
(1)
The comptroller may change the design as often as necessary
for the enforcement of this section. The design will be changed at least once
each calendar quarter.
(2)
Only a licensed customs broker or his authorized employee
may receive stamps. A person obtaining stamps in person must present
photo
[
photographic
]identification.
(3)
There is
a $1.60
[
no
] fee for
each stamp
[
the stamps
].
(4)
The stamps are non-transferable. A stamp is void if transferred
to a person other than the broker to whom the comptroller originally issued
the stamp or to that broker's employee[
in the ordinary course of business
]. This
paragraph
[
subdivision
] does not apply
to a stamp that is actually affixed to an export certification form that is
transferred in compliance with this section.
(5)
All unused, expired stamps must be returned to the comptroller
within 15 working days of the end of each calendar quarter. All such stamps
must be delivered to the comptroller on the same date, at the same time, and
to
[
at
] the same location[
of the comptroller
].
Unused stamps must be immediately returned to the comptroller upon cancellation,
suspension, or revocation of the broker's license or upon notification that
the broker is out of business and may be confiscated if not returned. Unused,
expired stamps may not be retained, destroyed, or disposed of except by the
comptroller.
The comptroller will allow a licensed customs broker credit
for returned unused stamps. Such credit must be used to purchase new stamps.
A licensed customs broker who ceases to do business in Texas must return all
unused stamps within 15 working days of the customs broker's last day of business.
The comptroller shall refund an out-of-business customs broker an amount of
$1.60 for each returned unused stamp.
(6)
As soon as practicable after discovery, a broker must report
in writing to the comptroller the theft, destruction, or other loss of stamps
issued to the broker, including the numbers assigned to the lost stamps (if
the comptroller has numbered the stamps sequentially).
No credit or refund
will be allowed for stamps lost, destroyed, or stolen, unless the customs
broker provides sufficient documentation that the stamps were stolen or destroyed.
(7)
A broker must notify the comptroller as soon as practicable
in writing if the broker has no remaining inventory of stamps following use,
theft, and/or other loss of the stamps.
(k)
Preparation of documentation. The comptroller
will maintain a password-protected website that a licensed customs broker,
or an authorized employee of a licensed custom broker, must use to prepare
export certification forms.
(1)
A licensed customs broker, or an authorized employee of
a licensed custom broker, is required to use the website to prepare export
certification forms and must provide all information as required by the comptroller.
Failure to use the website to prepare export certification forms while the
website is available is a violation under subsection (q) of this section.
(2)
A licensed custom broker, or an authorized employee of
a licensed custom broker, must prepare hard copy export certification forms
if the website is unavailable due to technical or communications problems.
A licensed custom broker, or an authorized employee of a licensed custom broker,
must enter such export certification information using the website within
48- hours after the website becomes available. Failure to enter such documentation
within 48-hours is a violation under subsection (q) of this section.
(l)
Reports required. A licensed custom broker
is required to file a report quarterly on a form prescribed by the comptroller.
(1)
The quarterly report must be signed by the licensed customs
broker or by the licensed customs broker's duly authorized agent and must
include the following information:
(A)
the total value of property for which the licensed custom
broker issued export certifications that quarter;
(B)
the total amount of tax on property for which the licensed
custom broker issued export certifications that quarter; and
(C)
the total amount of tax refunded in accordance with export
certifications issued by the licensed custom broker that quarter.
(2)
The customs broker report is due on the 20th day of the
month following the end of each calendar quarter reporting period. For example,
the first quarter report period is January, February, and March, and the due
date is April 20th. If the 20th is a Saturday, Sunday, or legal holiday, the
report is due the next business day. To be considered timely, a report must
be either postmarked or received by the comptroller on or before the due date
of the report.
(3)
Failure to receive the correct report form from the comptroller
does not relieve a customs broker of the responsibility to file a report.
(4)
A penalty of $500 is imposed for each report filed after
the due date. The comptroller may also impose an additional $50 late filing
penalty for each late report filed if the custom broker has filed two previous
late reports.
(m)
[
(j)
] Records required. A licensed
customs broker must maintain books and records that include, at a minimum,
the following:
(1)
an exact photographic image, including the exact photographic
image of the export certification stamp, of each export certification form
signed by the broker within the last two years[
(but not before January
1, 1993)
]. Carbon copies and pages from multi-page forms are acceptable
in lieu of photocopies, provided the number of the export certification stamp
affixed to the original is recorded on the additional copies;
(2)
a ledger that:
(A)
lists sequentially all export certification forms issued
or voided within the last two years (but not before January 1, 1993);
(B)
identifies the person or persons who fully or partially
prepared, issued, and/or signed each form; and
(C)
identifies the person's or persons' relationship to the
licensed customs broker;
(3)
an inventory of export certification stamps and records
tracking transfers of stamps between the broker and his employees, identifying
the recipients and showing the dates of transfer, quantities transferred,
the sequential numbers of the transferred stamps (if the comptroller has numbered
the stamps sequentially), and detailed records regarding stamps that have
been lost, stolen, or are otherwise unaccounted for;
(4)
a current list of all employees authorized to fully or
partially prepare, issue, and/or sign export certification forms and information
relating to the hiring and termination of employees;
(5)
all contracts executed between the broker and verification
contractors and information relating to the termination or cancellation of
such contracts;
(6)
exact copies of all invoices, receipts,
passports,
laser visa identification cards, foreign voter registration picture identification,
I-94 forms, air, land, or water travel documentation,
or other documents
relating to property whose export the broker has certified. This requirement
specifically
applies
to documentation that must be verified by
a customs broker under subsections (b)(3) of this section. The requirement
also applies to other documentation
[
only
] if the broker attached
such copies to the original form as provided in subsection
(p)(6)
[
(m)(5)
] of this section;
(7)
a copy of a certified check, company check, or money order
made payable to the purchaser, or a credit memo or cash receipt signed by
the purchaser, and the purchaser's written assignment of the right to a Texas
sales or use tax refund for each instance in which the broker obtained a refund
assignment from the purchaser;
(8)
detailed records showing the amount the broker charges
clients for his export certification services and the broker's gross receipts
from certifying exports; [
and
]
(9)
information of the exact same type as required to be submitted
with the application for a license as described in subsection (d) of this
section, updated and kept current since the date of application
; and
[
.
]
(10)
detailed records of when an authorized
employee is terminated, quits, is no longer authorized to complete export
certification forms, or whose power of attorney is withdrawn. A licensed customs
broker is required to notify the comptroller in writing within 15 days of
the date when an authorized employee is subject to such action.
(n)
[
(k)
] Examination of records. A licensed
customs broker must maintain all required records available for examination
by the comptroller. The comptroller will issue written notice of routine examination
of records at least 15 days prior to the date of examination. No advance notice
will be issued if the comptroller determines that notice could jeopardize
the proper enforcement of the tax laws and the comptroller's rules. The examination
will take place at the broker's principal place of business unless the comptroller
agrees to examine the records at another location.
(o)
[
(l)
] Retention of records. A licensed
customs broker must retain records for a period of at least two years from
the date of the document, the date of completion (if the required record is
a contract), or the date of final entry (if the required record is a list
or ledger). Copies of export certification forms must be retained for at least
two years after the date the broker or the broker's employee signs the form,
regardless of the date of export. For other documents with multiple dates,
the two-year period for retention begins on the latest date reflected on the
document.
(p)
[
(m)
] Export certification form and
contents. The export certification forms issued by a licensed customs broker
must be substantially in the form recommended by the comptroller. A separate
form must be completed for each seller. Multiple invoices from a single seller
may be listed on a single export certification form only if all the listed
items were exported at the same place, on the same date, and at the same time.
The required information must be completed in English on the face of the form,
in addition to any other language in which the form is completed. The comptroller
may immediately confiscate from any person an export certification form that
is incomplete on its face, indecipherable, fraudulent, or otherwise in violation
of this section. An export certification form must, at a minimum, reflect
the following information:
(1)
the name and address of the purchaser of the property,
as shown on the invoice, receipt, or similar document
, or the purchaser's
home address if the customs broker certified the export under subsection (b)(3)
of this section
;
(2)
the name of the seller and the seller's location from which
the property was sold;
(3)
the name, address
of the place of business which the
custom broker certified the export
, and Texas Customs Broker's License
number of the broker in whose name the export is being certified;
(4)
the date (and time, if available) of sale, as shown
on the invoice, receipt, or similar document
[
the date of sale,
date and time the property was exported, and exact location (e.g., the bridge
or airport) where the property was exported
];
(5)
the date, time and exact location where
the property was exported (e.g., the name of border crossing bridge or airport),
unless export was verified as set out in subsection (b)(3);
(6)
[
(5)
] a description
and quantity
of the property, a list of Store Keeping Unit (SKU) or other product
identification codes, or copies of invoices securely attached to the form
and signed and dated individually by the broker or the broker's authorized
employee;
(7)
[
(6)
] the invoice numbers (if any)
and
total
sales prices
and taxes
of
all
[
the
] property
certified for export
;
(8)
[
(7)
] the original signature of the
licensed customs broker or the broker's employee, together with a certification
that the property has been
exported or will be
exported
under
the verification requirements of subsection (b)(3) of this section
;
(9)
[
(8)
] the name of the person who
signed the form, typed or legibly printed near the signature;
(10)
[
(9)
] a valid export certification
stamp whose expiration date falls within the same calendar quarter as the
date of export (regardless of the date of sale); and
(11)
[
(10)
] a sequential export certification
form number assigned by the licensed customs broker
;
[
.
]
(12)
the purchaser's original signature and
date; and
(13)
the certification identification number
assigned by comptroller.
(q)
[
(n)
] License denial, suspension,
and revocation. The comptroller may deny, suspend, or revoke a Texas Customs
Broker's License for cause.
(1)
Grounds for denying a person's application for a Texas
Customs Broker's License include, but are not limited to:
(A)
ineligibility for a license under subsection (c) of this
section, including filing incomplete, false, or misleading information with
the license application;
(B)
disqualification for a license due to prior denial,
United States Customs Service
suspension, or revocation, as provided
in this subsection; [
or
]
(C)
forfeiture of corporate privileges, certificate of authority,
or charter, if the applicant is a corporation
;
[
.
]
(D)
failure to pay annual license fee; or
(E)
failure to post bond or security as required
by comptroller.
(2)
A person whose application for a Texas Customs Broker's
License has been denied may resubmit the application not sooner than 90 days
after the date on which the comptroller's decision to deny the application
becomes final. However, the comptroller may authorize reapplication at an
earlier date if he determines it is warranted under the circumstances.
(3)
Acts or omissions of a licensed customs broker, his employee,
his verification contractor, an officer or director, a general partner, or
association member (as applicable) that constitute cause for suspension or
revocation of a license under this section include, but are not limited to:
(A)
cancellation, suspension, or revocation by the United States
Customs Service of the broker's license to act as a custom house broker or
cancellation of that license by the broker;
(B)
violation of any provision of the Tax Code or the comptroller's
rules;
(C)
delivering to any person a signed and/or stamped export
certification form if all or a portion of the property described thereon was
not actually exported at the time and place and on the date reflected on the
certification form
, or not properly verified as property that will be
exported as required in subsection (b)(3) of this section
;
(D)
delivering to any person a signed and/or stamped export
certification form based solely on:
(i)
foreign import documents, bills of lading, freight forwarder's
receipts, or other documents that constitute valid proof of export in and
of themselves under §3.323 of this title (relating to Imports and Exports);
or
(ii)
proof of foreign citizenship;
(E)
transferring an export certification stamp to a person
other than the licensed customs broker or the broker's employee, except if,
at the time of transfer, the stamp is affixed to an export certification form
issued in compliance with this section;
(F)
delivering to any person an export certification form with
knowledge that the recipient intends to use the form to evade tax that is
legally due or to assist another person in the evasion of tax that is legally
due;
(G)
soliciting, advertising, or promoting the unlawful evasion
of tax through use of export certification forms;
(H)
knowingly making a false verbal or written statement to
the comptroller;
(I)
fully or partially preparing export certification forms
at a location for which no Texas Customs Broker's License has been issued;
(J)
transferring signed and/or stamped export certification
forms that are otherwise blank or incomplete at the time of transfer to a
person other than the licensed customs broker or the broker's employee in
the ordinary course of business;
(K)
failing to exercise responsible supervision and control
over the conduct of export certification business, including inadequate supervision
of employees and verification contractors;
(L)
failing to keep current in a correct, orderly, and itemized
manner the records required under this section, failing to timely provide
the comptroller with information required to be provided, or failing to account
for all export certification stamps received from the comptroller;
(M)
refusing the comptroller access to, concealing, removing,
or destroying without the comptroller's prior[
,
] written consent,
the whole or any part of a record required to be kept under this section,
or refusing to cooperate with the comptroller's investigation;
(N)
attempting to unduly influence the comptroller by the use
of a threat, false accusation, duress, or the offer of any special inducement
or promise of advantage, or by bestowing any gift, favor, or other thing of
value;
(O)
withholding information from or knowingly imparting false
information to a client;
(P)
failing to timely return to the comptroller unused, expired
export certification stamps as required by this section, absent a showing
and timely report to the comptroller of loss by theft or accident;
(Q)
selling or buying export certification forms and/or export
certification stamps except as consistent with this section;
(R)
seeking and/or obtaining under false pretenses a tax refund
from a seller, including giving a false refund assignment to the seller or
otherwise representing that the broker has the authority to obtain a refund
of tax paid by another person if the broker does not have such authority[
, in fact
];[
or
]
(S)
failing promptly to notify the seller, in writing, that
an export certification form relating to that seller is for any reason incomplete,
misleading, void, or otherwise invalid
;
[
.
]
(T)
failing to file quarterly customs broker
report;
(U)
failing to use the website for preparing
documentation while the website is available, or if the website becomes unavailable,
failing to promptly enter documentation using the website within 48 hours
after website becomes available or disabling of interfering with the proper
functioning of the website in any manner; or
(V)
failing to pay tax, penalties, or interest
that become due or are imposed by the comptroller under the provisions of
the Tax Code or this section.
(4)
After notice and hearing, the comptroller may suspend a
license for no fewer than 60 days and no more than 120 days if the broker's
license has not been previously suspended or revoked, for no fewer than 120
days and no more that 180 days if the broker's license has been previously
suspended or revoked, or concurrently and for the same length of time as a
suspension by the United States Customs Service of the broker's license to
act as a custom house broker. The suspension becomes effective on the date
the comptroller's decision to suspend the license becomes final. Suspension
of a license applies to all locations of the broker.
(5)
After notice and hearing, the comptroller may revoke a
broker's license indefinitely if the broker's license has been suspended at
least twice previously or has been previously revoked, or if the broker's
license to act as a custom house broker has been revoked by the United States
Customs Service. The revocation becomes effective on the date the comptroller's
decision to revoke the license becomes final. Revocation of a license applies
to all locations of the broker.
(6)
A Texas Customs Broker's License that has been
revoked
must be returned to the comptroller within 15 days of the effective date of
revocation. A Texas Customs Broker's License that has been
suspended
is reinstated automatically upon the expiration of the period of suspension,
unless the licensee notifies the comptroller in writing that the license should
not be reinstated. Not sooner than one year after the effective date of revocation,
a person whose Texas Customs Broker's License has been revoked may apply to
the comptroller for reinstatement. The comptroller may reinstate the license
if the person otherwise qualifies for a license as provided in this section
and the comptroller is satisfied that the person has a good faith intent to
comply with the tax laws and the comptroller's rules.
(7)
For procedures relating to license denial, suspension,
and revocation, see §3.361 of this title (relating to Practice and Procedure
for Texas Customs Broker's License Denial, Suspension, and Revocation).
(8)
The comptroller may require a customs
broker to pay the comptroller the amount of any tax refunded if the customs
broker does not comply with the Tax Code or this section. In addition to the
amount of the refunded tax, the comptroller may require the customs broker
pay a penalty in an amount equal to the refunded tax, but not less than $500
dollars nor more than $5,000. The comptroller may deduct any penalties to
be paid by a customs broker from the customs broker's posted bond.
(9)
A proceeding by the comptroller to require
a customs broker to pay an amount under paragraph (8) is a contested case
in the same manner as a proceeding to suspend or revoke a customs broker's
license under Tax Code §151.157(f).
(r)
Form of export certification. An export
certification form must be substantially in the form of a Licensed Customs
Broker Export Certification. The comptroller adopts that form by reference.
Copies are available for inspection at the office of the Texas Register or
may be obtained from the Comptroller of Public Accounts, Tax Policy Division,
111 W. 6th Street, Austin, Texas 78701-2913. Copies may also be requested
by calling our toll-free number 1-800- 252-5555. In Austin, call 463-4600.
(From a Telecommunication Device for the Deaf (TDD) only, call 1-800-248-4099
toll free. In Austin, the local TDD number is 463-4621.)
[
(o)
Suggested form of certification. A suggested
form for the Licensed Customs Broker's Export Certification is set out as
follows.
]
[
Figure: 34 TAC §3.360(o)
]
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 May 18, 2004.
TRD-200403346
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: July 4, 2004
For further information, please call: (512) 475-0387