Blog

We are pleased to welcome Chase Howell to our firm. Mr. Howell assists members of the firm with tax litigation in a variety of forums. Mr. Howell also joins other members of the firm in writing about Texas tax topics including the Texas sales tax and Texas franchise tax.

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The Third Court of Appeals’ recent opinion in Badger Tavern, L.P. v Hegar provides several key takeaways for Texas taxpayers, including the court’s willingness to find jurisdiction outside of indigency suits, that Comptroller statements made in a rule’s preamble may constitute an invalid rule, and potential ramifications for the Comptroller’s recent amendments to the franchise tax cost of goods sold rule.

First, although the Third Court’s most recent jurisdictional opinions show that its hands are tied with respect to indigent taxpayers, Badger Tavern, L.P. confirms the court’s reluctance to pour a taxpayer out of court due to Comptroller complaints about insufficient...

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On August 21, 2018, Gulf Copper filed its Response to the Comptroller's Petition for Review. The Comptroller had previously filed a Petition for Review asking the Texas Supreme Court to reverse the decisions by the trial court and court of appeals. Gulf Copper won in both of those courts.

Gulf Copper rebuilds offshore oil rigs. The case concerns whether Gulf Copper may exclude payments to subcontractors and subtract its operating costs when calculating its "margin," which is the tax base under the Texas franchise tax. Despite the...

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The Texas Comptroller issued guidance in the wake of the Supreme Court’s landmark decision in South Dakota v. Wayfair, broadly advising businesses of how his agency will implement the decision. The decision allows a state to force out-of-state sellers (called “remote sellers”) to collect and pay over sales taxes of instate residents who purchase goods and services from the out-of-state sellers.

At the outset, the Comptroller recognizes that the physical presence nexus standard remains Texas’ law of the land for the time being. The Comptroller’s office expects to amend Texas’ rules to establish new rules for remote sellers, imposing tax collection obligations when the remote seller exceeds minimum thresholds for revenues and/or number of sales in the state. The Comptroller’s office stated it anticipates that the new rules will be effective in early 2019.

In an attempt to allay fears and foster “a smooth transition and a successful partnership with...

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Twice in a row, the Texas courts have held that a taxpayer must pay the full amount claimed due in order to gain access to the Texas courts to challenge a tax assessment. See Hegar v. CHZP and EBS Solutions v. Hegar. The court reached this conclusion notwithstanding the Texas constitutional provision that allows all residents, including corporations carrying on business in Texas, open access to the Texas courts to resolve their disputes. This provision was previously implemented under Texas Tax Code § 112.108, which allowed taxpayers who could not afford to pay the full assessment access to the courts upon submission of an affidavit demonstrating inability to pay, and hearing on same. That statute has...

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On June 21, 2018, the United States Supreme Court rejected the “bright-line” physical presence rule that has governed multi-state sales tax practices for the past half century. By issuing its long-awaited opinion in South Dakota v. Wayfair, the Court ushered in a new era for sales tax compliance, especially for e-commerce platforms and nation-wide retailers who may now be subject to sales tax compliance in the states into which they sell. The 5-4 decision treated South Dakota’s pilot economic nexus law and sales tax administration system as a model and levied pressure on the states and Congress to enact significant policy changes to bring billions of revenue dollars within the grasp of state and local governments in ways that don’t discriminate or unduly burden interstate commerce.

Specifically, states will need to treat South Dakota’s newly-enacted economic nexus statute and other circumstances surrounding South Dakota’s sales tax administration and compliance processes as the baseline against which to measure their own nexus statutes and...

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On June 21, 2018, the US Supreme Court fundamentally altered the multi-state taxation rules in ways which will precipitate the need for businesses to evaluate their state tax processes and resulting state tax liabilities. In South Dakota v. Wayfair, the Court held that a business did not need to be physically present in a state in order for the state to require it to comply with its sales tax laws. The decision affects all businesses that sell across state lines as well as internet sellers.

As a result, businesses selling products or providing services into more than one state need to evaluate and modify their current IT systems for scalability in order to handle the massive amount of compliance and other work the Court’s decision will require.

Check back for registration details for several live and webcast presentations, which...

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In Nabors Drilling Technologies USA, Inc. v. Hegar,[1] the Court of Appeals fully denied Nabors’ sales and use tax refund arising from exemptions claimed for drilling-equipment and temporary storage.

Houston-based Nabors Drilling claimed it was entitled to a refund of use taxes paid on its purchases of component parts that it stored temporarily in Texas prior to shipping out-of-state, and alleged it was entitled to the drilling-equipment exemption for sales taxes paid on the component parts that were incorporated into drilling equipment to be used exclusively outside of Texas.

Nabors purchased component parts that it ultimately incorporated into oil and gas drilling equipment for sale to its customers located both inside and outside Texas. The court found that, at the time Nabors purchased the component parts, it did not document the intended place of use of each item, the parts were not...

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North v. South: Who will win this time? South Dakota v. Wayfair or Quill v. North Dakota. Click here to read the transcript of Tuesday’s (April 17, 20118) Oral Argument in the Wayfair case.

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On January 10, 2018, a Travis County District Court judge entered a final judgment in Pointsmith Point-of-Purchase Management Services, LP v. Hegar, ruling that the taxpayer’s fulfillment services (handling, packing, and freight) were not taxable under the sales price rule as part of the taxpayer’s sales of custom-printed point-of-purchase advertising materials.

The court also denied the Comptroller’s Partial Plea to the Jurisdiction which sought to limit the evidence presented in the taxpayer’s protest suit to only the specific errors scheduled in the audit assessment. Instead, the court ruled that the taxpayer was...

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On December 19th, a state district court in Austin, Texas issued two significant rulings pertaining to Texas sales taxes. The first held that the sales price of taxable items sold did not include the seller’s charges for the storage and later handling/packaging and transportation of those items (“fulfillment services”). The second held that Texas courts have jurisdiction over issues raised in a protest suit that were not assessed in the underlying sales tax audit.

The Plaintiff was Pointsmith Point-of-Purchase Management Services, LP, headquartered in Katy, Texas. It prints and sells custom marketing materials and provides fulfillment services, mainly to large franchisors of fast food restaurants and gas stations. Pointsmith’s customers store the marketing materials purchased from Pointsmith and third parties in spaces they rent within Pointsmith’s facility. Later, at the customer’s direction, Pointsmith selects particular materials from storage and packages them in specific combinations for shipment to various locations, both within and outside the state of Texas....

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The Texas Supreme Court declined to overturn a lower court’s ruling that companies may not include payments made as part of a products liability case settlement as a “cost of quality control” within their cost of goods sold deduction for the Texas franchise tax. “Costs of quality control” are limited to expenditures for “the product or good itself to improve its quality.”

In Owens Corning v. Hegar, the taxpayer argued that its payments to a trust fund to compensate plaintiffs for asbestos-related personal injuries caused by use of the taxpayer’s products should qualify as a “cost of quality control” properly included in its cost of goods sold deduction. In its opinion, the Fourth Court of Appeal rejected this argument, noting that the asbestos fund payment was attributable to products that Owens Corning stopped producing in 1973 and, therefore, was not money spent to improve the quality of the asbestos-containing...

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The work to rebuild Texas in the aftermath of Hurricane Harvey has just begun, and the project will require a tremendous effort by both Texas and out-of-state contractors. The Texas sales and use tax rules applicable to contractors performing work in declared disaster areas are complex and pose potential audit issues for contractors.

The Texas Tax Lawyer recently published an article written by Jimmy Martens, Danielle Ahlrich, and Katie Wolters in its Fall 2017 Edition that provides contractors and tax professionals with basic answers to construction-related questions specific to declared disaster areas.

You can view the full pdf of the Texas Tax Lawyer's Fall 2017 Edition here.

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A colocation center’s separately-stated charges for access to underground fiber optic cable to connect customers’ equipment to Internet service providers, or to establish connections between customers within a colocation center, constitute charges for the rental of real property and are not subject to Texas sales and use tax.

In Private Letter Ruling No. 201709001L (September 7, 2017), the taxpayer operated a carrier-neutral colocation center. Customers leased space in the colocation center for their computer equipment, and contracted with the taxpayer for the provision of cross-connects. Cross-connects are established by connecting the customer’s computer equipment to underground fiber optic cables, which allows the customers to connect to an Internet service provider. Charges for cross-connects are separately stated on the taxpayer’s invoices.

The sale or lease of real property is not the sale of a taxable item in Texas, and is not...

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Purchases of gas and electricity used in privately run detention facilities do not qualify for an exemption for utilities purchased for residential use. In GEO Group, Inc. v. Hegar, the Comptroller issued a sales and use tax assessment for purchases of utilities used in facilities that house government detainees. GEO Group needed to prove two elements to qualify for a sales tax exemption for gas and electricity sold for residential use: (1) the gas or electricity was used in a structure occupied as a home or residence, and (2) the gas or electricity was used by the owner of the occupied structure.

GEO Group argued that its facilities were occupied as a residence because prisoners lived in the facilities. It further argued that GEO Group used the gas or electricity as the owner of the facility. The Comptroller disagreed, arguing that the prisoners did not occupy the facilities as a home or residence because they could not exercise...

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Taxpayers may amend state court pleadings in tax protest suits as facts develop without losing jurisdiction, so long as new grounds are not raised.

In Texas, tax protest suits differ from many other types of lawsuits because taxpayers must comply with strict jurisdictional requirements unique to Chapter 112 of the Texas Tax Code. Taxpayers must first pay the amount assessed and submit with the payment a written protest letter stating fully and in detail each reason for recovering the payment. See Tex. Tax Code § 112.052. Then, the taxpayer must file suit within 90 days of the date the protest payment is made. Id. In protest suits, the issues determined by the court are limited to those arising from the reasons expressed in the written protest as originally filed. See Tex. Tax Code § 112.053(b). If the taxpayer amends its pleadings to include grounds for recovery not expressed in the written protest, then the amendment could create a variance issue where the court no longer has subject-matter jurisdiction to hear the case.

In...

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Our firm raised significant concerns about how the Comptroller’s proposed amendments to the COGS rule could potentially impact the ability of taxpayers to claim the COGS deduction. Many aspects of the proposed rule appear to alter or remove the holdings of several cases tried by our law firm. We submitted comments to the proposed rule seeking the proposed rule's conformity with the holdings and rationale of Newpark Resources, CGG Veritas Services, and Gulf Copper and Manufacturing Corporation. We will continue to track the status...

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Following a pro-taxpayer Texas Supreme Court ruling in Hallmark Mktg. Co. v. Hegar, the Comptroller has issued a memorandum amending his policy regarding the treatment of net losses for purposes of franchise tax apportionment. Before, the Comptroller required businesses to include a net gain or net loss from the sale of investments or capital assets in the apportionment calculation. Now, after the Texas Supreme Court’s rejection of that position, only net gains from the sale of an investment or capital asset should be included in the calculation.

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The Texas Comptroller will delay implementation of the tax amnesty program established during the 2017 legislative session.

The 2017 Legislature established a tax amnesty program to encourage voluntary reporting by delinquent taxpayers. Once implemented, businesses who do not hold a permit, as well as permitted taxpayers who have underreported or owe additional taxes or fees, will be allowed to participate in the program. Taxpayers currently under audit will not be eligible to participate in the program. Program incentives will include the waiver of penalty, interest, or both, although the details of the program are currently limited.

In the meantime, taxpayers who seek to comply with Texas tax laws remain eligible to participate in the Comptroller’s Voluntary Disclosure Agreement program. Details on this program are available on the Comptroller’s website.

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The Texas Comptroller is offering an automatic extension of time to file 2017 Texas franchise tax reports for businesses located in federally-declared disaster areas in Texas. 2017 Texas franchise tax reports with valid extensions to November 15, 2017 will be granted an automatic extension to January 5, 2018. Businesses located in counties federally declared a disaster area do not need to request an extension for their franchise tax reports. For example, a business located in Aransas County who had received a valid extension to November 15, 2017 will be granted an automatic extension to file until January 5, 2018.

CPAs and other report preparers who file franchise tax reports for other taxpayers may request a franchise tax extension if they are affected by Hurricane Harvey and are located in a Texas county federally-declared as a disaster area. These extensions are not automatic, and the CPAs or report preparers must take steps to request an extension. For example, a CPA located in Houston who...

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Martens, Todd, Leonard & Ahlrich is proud to announce that Jimmy Martens was recently named Vice Chair of the Tax Controversy Committee of the Texas State Bar’s Tax Section. The Committee assists the Tax Section’s Committee on Government Submissions in providing comments on proposed regulations or rules relating to tax controversy subjects. It also supplies educational materials and presentations on current topics of interest to tax controversy practitioners and solicits volunteers for the Tax Section’s pro bono program.

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Please join Katie Wolters on Thursday, September 7th for a Texas sales tax course for artists, musicians, and artist entrepreneurs. This presentation is hosted by the Texas Accountants & Lawyers for the Arts as part of the Business Essentials for the Artist Entrepreneur seminar series.

Katie will discuss a wide range of sales and use tax issues applicable to artists, including Internet and multi-state sales issues, exemptions for audio and video masters, painting and fine art, photography, graphic design, printing, and advertising. You can view a copy of Katie’s presentation below.

For more details and to register for the event, please visit our seminars page.

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The Texas Comptroller intends to restrict a taxpayer’s ability to accept a resale certificate in good faith, thereby limiting the safe harbor protections. See proposed amendments to 34 Tex. Admin. Code § 3.285.

Currently, a sale is exempt if a seller accepts a resale certificate in good faith and lacks actual knowledge that the sale is not a sale for resale. It is the seller’s responsibility to take notice of the type of business generally engaged in by the purchaser as shown on the resale certificate. Presently, a seller can accept a certificate in good faith if there is nothing on the face of the certificate that would lead the seller to suspect that the resale claim is improper.

The Comptroller’s proposed rule narrows the good faith protections for sellers. Under the proposed rule, sellers must not have reason to know that the sale is not a sale for resale in order to accept a resale certificate in good...

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In a recent case, Cantu Enterprises, LLC v. Hegar, the Third Court of Appeals applied the “normal course of business” standard to invalidate the taxpayer’s claim of a sale for resale exemption. Texas Tax Code § 151.006(a)(2) states that an exempt “sale for resale” includes a sale of tangible personal property within the U.S. or Mexico to a purchaser for the sole purpose of the purchaser leasing or renting the property in the normal course of business to another person. Thus, if the purpose of the underlying sale is not to facilitate leases or rentals that are part of the normal business operations of the purchaser, but instead, the purpose is merely to create a tax benefit, the underlying sale is illegitimate and not exempt.

In the Cantu case, the court analyzed a related-party aircraft lease under former sales tax statutes which, following Legislative changes, are not applicable to present day transactions. The...

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Martens, Todd, Leonard & Ahlrich is pleased to announce that Danielle Ahlrich has been elected President of the Travis County Women Lawyers’ Association. Serving over 400 members, TCWLA is an organization committed to promoting the professional and personal advancement of local women attorneys.

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The Texas Court of Appeals resolved two important issues under the Texas franchise tax in Hegar v. Gulf Copper & Manufacturing Corporation, No. 03-16-00250-CV (Tex. App.—Austin August 11, 2017, no pet. h.). First, the Court ruled that the revenue exclusion for payments to subcontractors in the real estate industry is not confined to the narrow circumstances where the parties share fees on a percentage basis. In doing so, the Court held that the repair of an offshore rig to be used to drill a particular well was a qualifying activity. Second, the Court explained the proper calculation for the cost of goods sold deduction after rejecting both methods offered by the parties.

Gulf Copper & Manufacturing Corporation inspects, repairs, and upgrades rigs for offshore drilling. Its work includes manufacturing and installing large, steel components on the rigs. Once repaired, the rigs are sent offshore to drill particular wells. In...

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The Texas Comptroller treats cloud-based text and messaging services as taxable data processing, subjecting 80% of the charge to the Texas sales tax. A California-based company requested Comptroller guidance and explained that it operates a subscription service for businesses that allows a business’s customers to text questions, orders, and other messages to the subscriber business from any mobile device. The company then processes the message content into a useable format that can be displayed on the subscriber business’s dashboard and stores the message content for later retrieval. The company also analyzes the message content and provides the analysis in regular reports to the subscriber business—for example, reports can include the number of requests received per day, their categories, and response times. Instead of downloading or installing the California company’s software, subscriber businesses access and use it over the internet.

The...

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Temporary employment agencies can no longer sell or rent supplies or equipment to clients and meet the exemption under the Texas Tax Code. [1] The Texas Tax Code exempts charges for temporary help services from the sales tax when certain requirements are met. One requirement is that the client of the agency provide the equipment and supplies of the assigned worker. In the past, agencies avoided this requirement by charging their clients for the supplies and equipment that the workers would bring with them to the client’s locations. The Comptroller perceived this tactic as abusive, so he sought and received a legislative fix. Now, agencies can no longer sell or rent supplies or equipment to clients and meet the exemption under the Texas Tax Code. This anti-abuse rule extends to affiliates of the temporary employment service.

Also, will employees have to provide exemption certificates to their employers?...

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The Comptroller made substantial revisions to the rules that govern administrative hearings. The new rules may be found here. The new rules become effective on July 13, 2017.

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Our law firm set Pointsmith Point-of-Purchase Management Services, LP v. Combs (Cause No. D-1-GN-11-001514) for trial the week of December 4, 2017. Pointsmith prints promotional items (such as gas station pump signs advertising a new promotion) and provides fulfillment services where Pointsmith charges customers to store, box, and ship Pointsmith-printed items or items provided by third parties. The Comptroller audited Pointsmith and imposed Texas sales tax on Pointsmith’s fulfillment service on the basis that it is a continuation of a preceding taxable sale of printed materials and, thus, subject to tax under the sales price rule. Pointsmith rejects this contention, instead stating that the fulfillment services are not a continuation of a print sale because title, possession, and ownership of printed items transfer to its customer once the items are printed. Moreover, Pointsmith’s print and fulfillment activities are independently desired by and provided to customers, and are therefore non-taxable under...

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Have you ever wondered how the Comptroller can hold an officer or director of a business personally liable for a tax assessment against a business? Unfortunately, this situation is common and our firm has handled a variety of cases involving personal liability issues.

An article written by Jimmy Martens and Katie Wolters recently published in the Spring 2017 edition of the Texas Tax Lawyer explains how the Comptroller has authority to pursue an officer or director individually. The article also provides an overview of what defenses are available to an individual who seeks to challenge a personal liability assessment.

You can view the Spring 2017 edition of the Texas Tax Lawyer here.

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Assessments

Texas taxpayers seeking to challenge a Comptroller’s assessment through the administrative process will have 60 days from the issuance of the assessment notice to file a Petition for Redetermination. This applies to notices issued on or after September 1, 2017. See S.B. 1095 (amending Texas Tax Code § 111.009). Previously, taxpayers had to file within 30 days. The bill’s sponsor originally sought to extend the deadline to 90 days, but the Legislature ultimately reduced the extension to 60 days. The purpose of the amendment is to give taxpayers additional time to review assessments, to decide whether to contest them, and, if so, to reduce boilerplate petitions that included numerous transactions and legal theories designed to preserve potential grounds until the taxpayer had sufficient time to review the assessment in more detail. Boilerplate petitions are inefficient and a drain on taxpayer and Comptroller resources.

However, the requirements for a state court protest suit remain unchanged. Taxpayers may continue to file...

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Our law firm set MMR Research Associates, Inc. v. Hegar (Cause No. D-1-GN-16-005569) for trial the week of October 16, 2017. This case concerns whether MMR’s market research consulting service is subject to Texas sales and use tax. Clients hire MMR to provide professional expertise and opinions about the clients’ business goals or decisions, such as the chance of success of a potential product or identifying the cause of and proper response to a decline in customer volume or sales. MMR employs academically-trained, senior research professionals to lead its client projects. The Comptroller audited MMR and assessed sales tax on its service, alleging that the service constitutes either taxable data processing or a taxable information service. MMR asserts that no tax is due because it provides a non-taxable consulting service and, even if shoe-horned into the data processing or information services rules, MMR’s service would fall within the professional services exclusion to taxable data processing and constitute a non-taxable information service because the information...

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Our firm has a busy seminar calendar this summer. Jimmy Martens is scheduled to teach the following courses in June and July:

· Texas Franchise Tax Seminar – July 7, 2017 (Austin, Texas)

· Texas Sales & Use Tax – July 13, 2017 (Dallas, Texas)

· Texas Franchise Tax Seminar – July 17, 2017 (Dallas, Texas)

· Texas Franchise Tax Seminar – July 19, 2017 (Houston, Texas)

· Texas Sales & Use Tax – July 20, 2017 (Houston, Texas)

Don’t forget to visit the seminars page of our website to stay up to date with our firm’s upcoming speaking engagements.

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On May 23, 2017, Jimmy Martens presented argument on behalf of Gulf Copper before the Third Court of Appeals. The courtroom was packed with spectators interested in hearing both parties’ arguments about two key franchise tax provisions of the Texas Tax Code: First, whether the revenue exclusion for subcontractors is only available in those narrow circumstances where the parties contract in writing to share fees on a percentage basis. Second, whether taxpayers may calculate their Texas cost of goods sold deduction by starting with their federal deductions and adjusting them for the Texas-specific list of disallowed costs and 4% cap on service department costs.

Oral argument primarily focused on COGS qualification and calculation issues. Many of the Justices’ questions addressed the scope of Texas Tax Code § 171.1012(i), which states that a taxable entity “furnishing labor or materials to a project for the construction, improvement, remodeling, repair, or industrial maintenance… of real property is considered to be...

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In a hearing decision issued in May 2017, the Comptroller held that an auditor’s COGS allocations for labor costs incurred by a grocery store in its deli and pharmacy department were understated.

Taxable entities are entitled to include all direct costs of acquiring or producing goods in their Texas franchise tax COGS subtraction. An entity may include in its COGS calculation labor costs (other than service costs) that are properly allocable to the acquisition or production of goods.

During a refund-verification audit of a grocery store, an auditor allocated a small percentage of the taxpayer’s costs related to deli clerks, deli and meat market managers, and pharmacy employees. The auditor contended that certain costs were related to selling goods, rather than acquiring or producing goods, so these costs should be excluded. The taxpayer disagreed, arguing that the auditor’s production allocations for labor costs in the deli, meat...

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A recent edition of the Comptroller’s Tax Policy News publication clarifies that hotel occupancy taxes are due on rentals of houses, condos, or apartments. State hotel occupancy tax is due when taxpayers rent sleeping accommodations for more than $15 per day, and local hotel occupancy taxes may also be due. In Texas, the hotel occupancy tax is 6%.

Detailed information on the hotel occupancy tax is available on the Comptroller’s website.

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Hegar v. Gulf Copper & Manufacturing Corp. (No. 03-16-00250-CV) is set for oral argument before the Third Court of Appeals on May 23, 2017. Jimmy Martens will present argument on behalf of Gulf Copper.

Gulf Copper inspects, repairs, and upgrades rigs for offshore drilling. Its work includes manufacturing and installing large, steel components on the rigs. Gulf Copper was audited and assessed additional Texas franchise tax. Gulf Copper disputed the assessment, alleging that the auditor improperly (1) disallowed the entire amount of Gulf Copper’s revenue exclusion attributable to subcontractor costs and (2) limited Gulf Copper’s COGS deduction to one half of the amount Gulf Copper claimed. The trial court ruled in favor of Gulf Copper and the Comptroller brought this appeal.

The Third Court of Appeals’ opinion will result in important determinations for Texas taxpayers about two key franchise tax provisions of the Texas Tax Code: First, whether the revenue exclusion for...

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Martens, Todd, Leonard & Ahlrich is pleased to announce that Danielle Ahlrich has been selected as a 2017 Texas Rising Star in business tax. The Rising Stars list is comprised of the top up-and-coming Texas attorneys who are 40 or younger or have been in practice for 10 years or less. Rising Stars are selected based on nominations by members of the elite Texas Super Lawyers list. No more than 2.5 percent of Texas attorneys were chosen for this honor. The Texas Rising Stars list will be published in the April 2017 issues of Texas Monthly and Texas Rising Stars magazines.

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The Third Court of Appeals recently held that a buyer of the assets of a small business was liable for the sales tax liability incurred by the business prior to the sale. This potential liability is known as “successor liability.” Successor liability may arise when an individual or a business entity purchases assets of an existing business, and unknowingly assumes the business’s tax liability as a result of the purchase. See Tex. Tax Code § 111.020. If a buyer fails to withhold the amount specified by the Comptroller, the buyer will be personally liable up to the amount of the purchase price, for the taxes of the seller. See Tex. Tax Code § 111.020(b).

The seller can request that the Comptroller issue a certificate stating that no tax is due or the amount that must be paid before a certificate can be issued. See Tex. Tax Code § 111.020(c). The Comptroller must issue the certificate or statement within 60...

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Martens, Todd, Leonard & Ahlrich wishes Amanda Taylor well with growing her general civil appellate practice with Beck Redden, LLP. Ms. Taylor is a top-notch, board-certified civil appellate attorney, and we look forward to working with her on pending and future tax appeals.

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Martens, Todd, Leonard & Ahlrich is pleased to announce that Katie Wolters has been selected to join the Austin Bar Association/ Austin Young Lawyers’ Association 2017 Leadership Academy. The Leadership Academy was established to assist Austin-area lawyers in making a difference in our community, serving the Bar, and promoting professional development. Throughout the year, members participate in a series of presentations by leaders in public policy, government, the private sector, non-profit organizations, and the Bar. The course culminates with a class project.

About Katie Wolters

Ms. Wolters is an associate at Martens, Todd, Leonard & Ahlrich. Ms. Wolters assists clients with both tax controversies and civil appeals in a variety of forums, including the State Office of Administrative Hearings, state district court, and the Texas appellate courts. Ms. Wolters also joins other members of...

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A recent memo issued by the Comptroller’s Tax Policy Division provides guidance on the Texas franchise tax treatment of various types of vendor funded incentives. The issue is whether the incentives reduce COGS, are included in revenue, or are ignored altogether. Vendors provide incentives as allowances, credits, and rebates to retailers through a variety of programs to support merchandise purchased for retail. Vendor Funded Incentives (VFI) refers to this collection of programs and includes incentives like volume-based purchase adjustments, sales-based incentives, produce placement incentives, new store allowances, and depletion allowances.

Some retailers argue that VFI should not be treated as a reduction in the COGS deduction for franchise tax purposes, because VFI relate to the sale of goods rather than the purchase of goods for resale.

The Comptroller’s position is that certain VFIs relating to advertising...

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In 2016, the Comptroller’s Tax Policy Division authored a memorandum announcing a policy interpretation change based upon the decision in Titan Transportation, L.P. v. Combs. [1] The memorandum was issued on the heels of the Texas Supreme Court’s denial of the Comptroller’s Petition for Review. [2]

Titan Transportation hauled and deposited aggregate (a construction material made of rock, gravel, dirt, sand, or fines) at construction sites using independent...

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An attorney was recently held liable for the tax debts of his defunct PC, in which he served as the sole officer and director. In Jeff Kaiser, PC v. State, Kaiser operated his law practice as a professional corporation (“PC”) until 2003, when he forfeited its business privileges by failing to file Texas franchise tax reports. He was the sole officer and director of the PC. After 2003, he filed for Chapter 7 bankruptcy and continued to practice law as a sole proprietorship. In 2008, during his bankruptcy proceedings, Kaiser filed franchise tax reports for the defunct PC for report years 2004-2008 reporting income from his solo law practice after the PC’s charter was forfeited. In 2013, the state filed suit to collect the franchise tax owed from 2004-2008. Shortly after, the state filed a lien solely for the 2004 report period.

Kaiser argued that it is unconstitutional for the state to impose liability on a natural...

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On August 25th, our law firm filed an amici curiae brief on behalf of six Texas franchise taxpayers in Hegar v. Autohaus, LP, LLP, a cost of goods sold case pending at the Third Court of Appeals. Concerned about the narrow arguments presented by the parties and the financial and administrative burdens imposed by the Comptroller’s calculation methods, the amici taxpayers seized the opportunity to present the court with a straightforward, statutorily-based COGS analysis that relies heavily upon Internal Revenue Code concepts (such as IRC Section 263A) and will benefit taxpayers across many industries. In response, the Comptroller notified the court that it will file a response by September 26th.

The amici brief is available for review here. For more information, please contact: Jimmy Martens,...

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The Comptroller recently updated its Local Sales & Use Tax Collection- A Guide for Sellers publication. This publication provides a helpful overview of local sales and use tax guidelines, including a discussion of when and which local taxes are due. The updated publication is currently available on the Comptroller’s website.

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Nexus is the connection between a taxpayer and a state that triggers an out-of-state taxpayer’s obligation to comply with that state’s tax laws. Although nexus laws differ between states, the United States Supreme Court decision in Quill Corp. v. North Dakota has remained the controlling authority for over twenty years. 54 U.S. 298 (1992). Quill held that economic presence was not sufficient to establish nexus for a remote seller. Id. But recently, states across the U.S. have begun to attack the physical presence requirement imposed by Quill through legislation seeking to recoup sales tax from online sales.

Texas followed suit, although it has not gone as far as other states. Texas enacted an affiliate nexus law and amended existing law in a way that suggests that sale of tangible personal property into Texas creates nexus, although the Comptroller has yet to enforce this provision. See Tex. Tax Code § 151.107(a)(3), (7) & (8) (effective Jan. 1, 2012). Yet, in contrast, the Comptroller cited Quill as the...

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President Obama recently signed the Trade Facilitation and Trade Enforcement Act (“TFTEA”) into law, which makes permanent the provisions of 1998’s Internet Tax Freedom Act (“ITFA”). [1] The TFTEA permanently bans state and local jurisdictions from imposing taxes on Internet access, among other prohibitions. Under the TFTEA, Texas’ right to tax Internet access ends on June 30, 2020 due to the statute’s phasing out of a “grandfather” clause that allowed certain states (like Texas) to continue taxing Internet access under ITFA.

The Comptroller’s office estimates that this change will result in a $358 million revenue loss for the state.[2] Such a hit could prompt the Comptroller to become more aggressive with its taxability policies for and audits of other services and industries.

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The Texas Comptroller recently updated its handout providing taxpayers with information on how to contest disagreed audits, examinations, and refund denials. However, with respect to contesting audits, the Comptroller fails to address an important procedural vehicle that allows a taxpayer to go directly into district court, bypassing the administrative process altogether. Under the Tax Code, a taxpayer has the right to directly challenge an audit assessment in the Travis County district courts. One significant advantage to bringing a district court suit is that the decision maker is an elected judge, rather than the Comptroller. A district court suit also gives the taxpayer better control over the timing of the proceedings that may allow for a quicker resolution, providing certainty as to the tax results for future transactions. For more information on procedural options available to taxpayers, see...

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In Southwest Royalties, Inc. v. Hegar, the Texas Supreme Court addressed whether downhole oil & gas equipment – such as tubing, casing, and pumps – qualified for the manufacturing exemption from the Texas sales and use tax. The Court ultimately concluded that Southwest Royalties failed to prove its entitlement to the exemption by clear and convincing evidence.

In seeking a refund of sales tax paid on downhole equipment, Southwest Royalties relied upon three subsections of the Texas Tax Code, which exempt from tax:

  • tangible personal property directly used or consumed in or during the actual manufacturing, processing, or fabrication process if the property is necessary or essential and directly makes or causes a chemical or physical change to the product;
  • tangible personal property used or consumed in the actual manufacturing, processing, or fabrication process if the property is necessary and essential to the...
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The Texas sale-for-resale exemption does not apply to fitness equipment purchased by a health club. Examples include cardio machines; arm, abdominal, and leg equipment; weight racks; scales; and so forth.

Generally, a taxpayer qualifies for the sale-for-resale exemption if it purchases tangible personal property for the purpose of reselling it, or for the purpose of transferring it as an integral part of a taxable service. See Tex. Tax Code § 151.006(a)(1) & (2). In a recent case, Fitness International v. Hegar, Fitness International argued that its purchases of fitness equipment qualified for the exemption because it either: (1) rented the equipment to its members in exchange for the membership fee, or (2) transferred the equipment to its members as an integral part of its gym membership, a taxable amusement service.

In rejecting Fitness International’s analysis, the court concluded that Fitness International’s...

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Integrated utility companies benefit from a Texas franchise tax policy memorandum recently issued by the Texas Comptroller. The memo explains the process available for a utility company to calculate its cost of goods sold deduction. In short, the deduction includes transmission and distribution costs incurred before the electricity’s voltage is “stepped down” for distribution to the consumer because these costs constitute eligible processing or handling costs. Previously, the Comptroller had rejected these costs as selling or distribution costs.

The memo is authored by the head of the Tax Policy Division and informs the head of the Audit Division about this policy change. The memo applies to all tax report years that are open within the statute of limitations. The Comptroller intends to amend Comptroller Rule 3.588 for this position.

Comment: This policy change may provide indirect support to claim the sales tax...

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In Hegar v. CGG Veritas Services (U.S.), Inc., a Texas court of appeals held that CGG was entitled to claim a Cost of Goods Sold deduction for the costs that it incurred in acquiring seismic data and processing that data into seismic images, which it then sold to its customers.

Subsequently, the Comptroller signaled his intention to appeal to the Texas Supreme Court by seeking an extension of time to file a petition for review. However, the Comptroller notified the Court that it would not pursue the appeal, thereby allowing CGG’s appellate court victory to stand.

CGG’s customers are oil & gas exploration and production companies. CGG licenses seismic images to them so that they may efficiently explore and drill for oil & gas. At trial, CGG presented evidence that its services and products were an integral, essential, and direct component of the oil & gas drilling process. CGG qualified for the Cost of Goods Sold...

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Martens, Todd, Leonard, Taylor & Ahlrich is the proud recipient of the Travis County Women Lawyers' Association’s 2016 Outstanding Law Firm Award. MTLTA received the award at TCWLA’s annual luncheon in recognition of its commitment to work-life balance and the advancement of women in the legal profession.

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Two recent opinions clarify the tax treatment of temporary employment services under both the sales and use tax and Texas franchise tax laws.

Sales Tax

In Allstate Insurance Company v. Hegar, the court held Allstate liable for sales tax on outside adjustors’ compensation. In doing so, the court rejected Allstate’s claim of the exclusion for a temporary employment service. Allstate sought a refund of sales tax paid on charges by a third-party, who provided employees to perform taxable insurance claims adjusting and processing. The court discussed the five elements that Allstate had to satisfy in order to treat the third party’s charge as non-taxable under the exclusion. It considered whether:

1. the service performed by the assigned worker supplements the employer’s existing workforce on a temporary basis;

2. the third party qualifies as an employment service under Texas Labor...

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Memorial Day Weekend is the date of a new sales tax holiday for water-conservation items. So, while you’re preparing your front yard for the neighborhood block party, why not stock up on some water conservation items, tax-free?

Exempt items include: soaker or drip-irrigation hoses, moisture-control for sprinklers, mulch, rain barrels, and products certified by the Environmental Protection Agency’s WaterSense program purchased for outdoor, residential use. See Tex. Tax Code § 151.3335.

In addition, qualifying energy efficient products such as air conditioners, refrigerators, clothes washers, dishwashers, and ceiling fans can also be purchased tax-free during Memorial Day Weekend. See Tex. Tax Code § 151.333.

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Failure to file Texas franchise tax reports or pay franchise taxes when due may result in officers, directors, and managing members becoming personally liable for debts of the taxable entity. These failures lead to forfeiture of corporate privileges. See Tex. Tax Code § 171.251. The forfeiture of corporate privileges results in personal liability for debts created or incurred by the corporation during the period of forfeiture. The Court of Appeals in Houston recently held that the sole manager of a limited liability company could not be held personally liable for the company’s debt that was created or incurred before the limited liability company failed to pay its Texas franchise taxes.

In Hovel v. Batzri, the Hovels hired a contractor (the “LLC”) to build a custom home, and then sued for its breach when the LLC delivered the home late and with construction defects. While the breach of contract suit was pending, the LLC...

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The rate for interest earned on a refund of overpaid taxes has increased from 0.469% in 2015 to 0.634% in 2016. The interest rate due on past-due taxes was similarly increased from 4.25% in 2015 to 4.50% for 2016.

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Comptroller hearing decisions have imposed the clear and convincing evidentiary standard on franchise taxpayers seeking deductions. In recent state court franchise tax suits, the Comptroller has made similar allegations in his trial and appellate court briefing. However, the Third Court of Appeals, in Newpark, Titan, CGG , and AMC has imposed no such standard. As a result, it appears that...

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On April 15, 2016, the Texas Supreme Court held that only net gains should be included in the apportionment factor of the Texas franchise tax. This reversed the opinion issued by the Thirteenth Court of Appeals to rule in favor of the taxpayer.

Texas imposes a franchise tax on taxable entities engaged in business in Texas. To determine the franchise tax base, the taxable entity begins with total revenue and deducts the greater of four general deductions: $1 million, cost of goods sold, compensation, or 30% of total revenue. The resulting figure is called “margin.”

The United States Constitution prohibits a state from imposing tax on activity beyond the state’s borders. To comply with this requirement, Texas law imposes the franchise tax only on the portion of “margin” attributable to business done in Texas. It does this by calculating a fraction equal to the taxable entity’s ‘Texas receipts’ divided by ‘receipts from everywhere.’ This fraction is called the “apportionment factor.” The issue in Hallmark was whether the apportionment factor included net losses...

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Recently, a Texas district court awarded full relief to Gulf Copper, an offshore rig repair company, upholding its position on both the Revenue Exclusion for Real Property Subcontractors and the Cost of Goods Sold (“COGS”) formula. See Gulf Copper & Manufacturing Corp. v. Hegar, No. D-1-GN-14-004620, 53rd Judicial District, Travis County, Texas (Judgment Feb. 22, 2016). The Comptroller assessed nearly four-times the amount of franchise tax that Gulf Copper had originally paid based on arguments that (1) a fee-sharing contract was required to exclude subcontractor payments, and (2) the COGS calculation is more limited than the statute plainly provides. The district court rejected Comptroller’s arguments and his tax assessment in favor of Gulf Copper. By its ruling, the court allowed Gulf Copper (among other things) to include in its COGS subtraction the amount of costs incurred to remove defective portions of customers’ offshore oil rigs, and the costs to install new components.

On April 13, 2016, the Comptroller filed its Notice of Appeal, appealing this...

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In Calavista, L.P. v. Hegar, a Texas district court ruled that Calavista’s charges for software-related services were not subject to the Texas sales and use tax. The Court signed a final judgment granting Calavista’s Motion for Summary Judgment in full.

Background

Calavista offers a variety of software-related products and services to companies nationwide. This includes software development services, software consulting services, and quality assurance testing. When performing software development services, Calavista may either create custom programs or modify existing software owned by its clients.

Texas Sales & Use Tax

While the sale or licensing of software is subject to the Texas sales tax, creating a custom software program or modifying a...

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The Texas Legislature recently enacted a new sales tax holiday for emergency preparedness supplies. See Tex. Tax Code § 151.3565 (effective 2016). This year, the holiday falls on the weekend of April 23, 2016. From Saturday to Monday, you can purchase many emergency supplies without paying sales tax.

This sales tax exemption covers many handy items, including: emergency rescue ladders, portable generators, storm protection devices, artificial ice or coolers, flashlights, gas containers, batteries, battery chargers for phones, portable radios, fire extinguishers, nonelectric can openers, first aid kits, and hatchets or axes. Some items are subject to caps on the purchase price.

Whether you’re doomsday prepping or just stocking up for a camping trip, the new sales tax holiday is an excellent time to shop ‘til you drop.

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In the attached decision, the Comptroller held that proppants and other chemicals used in the hydraulic fracturing process did not qualify for the Texas sales tax sale-for-resale exemption. Comptroller Hearing No. 110,819 (November 6, 2015). Although this decision was unfavorable, the analysis leaves ample room for challenge in district court. The claimant, an oilfield service provider, furnished oil and gas hydraulic fracturing (“fracking”) services to Texas well owners. Fracking is a process where fluid and other materials like sand, ceramic materials (“proppants”), and chemicals are pumped into a well at a high pressure to create open fractures in the well formation through which oil and gas may flow. See id. at 5. The oilfield service provider filed refund claims for periods spanning July 2009- September 2011 for sales tax paid in error, arguing that the purchase of proppants and chemicals used during the fracking process qualified for...

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Lower franchise tax rates went into effect on January 1, 2016. H.B. No. 32 lowered the franchise tax rate for report years beginning in 2016 from 1% to 0.75% of taxable margin for most taxpayers. For retailers and wholesalers, the tax rate is decreased from 0.5% to 0.375%. H.B. No. 32 also favors businesses electing the E-Z computation and rate provisions. It raises the total revenue qualification threshold from $10 million to $20 million and lowers the E-Z tax rate from 0.575% to 0.331%. The Legislature’s stated intent is “to promote economic growth by repealing the franchise tax.” 84th Leg., R.S., H.B. 32 § 1(b).

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In Gulf Copper & Manufacturing Corp. v. Hegar, a Texas district court awarded full relief to Gulf Copper, upholding its position on both the Revenue Exclusion for Real Property Subcontractors and Cost of Goods Sold Deduction. The court rejected the Comptroller’s arguments that a fee-sharing contract was required in order to exclude revenues paid to subcontractors and that Gulf Copper’s activities were too far removed from real property activities. The court also allowed the full Cost of Goods Sold deduction claimed by Gulf Copper, which included costs incurred to remove defective portions of customers’ offshore oil rigs and to install the new components.

Background

Gulf Copper is primarily engaged in the business of repair and upgrade of offshore drilling rigs. For example, Gulf Copper’s customers bring damaged rigs to one of Gulf Copper’s facilities located along the Texas coast. Gulf...

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In Hegar v. CGG Veritas Services (U.S.), Inc., the Third Court of Appeals held that CGG, a fully-integrated geoseismic company, was entitled to claim a cost of goods sold deduction.

CGG is primarily engaged in acquiring seismic data and processing that data into seismic images, which it then sells to companies engaged in oil and gas exploration and production. CGG’s customers use the seismic images as a blueprint for drilling projects because the images provide insight about where and how deep to drill oil and gas wells. Given its integral connection to drilling projects, CGG claimed the cost of goods sold deduction based on the following provision:

“A taxable entity furnishing labor or materials to a project for the construction, improvement, remodeling, repair, or industrial maintenance [ ] of real property is considered to be an owner of that labor or materials and may include the costs, as allowed by [the cost of goods sold] section, in the computation of costs of goods sold.” Tex. Tax Code § 171.1012(i).

The Court agreed, holding that CGG was, in...

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