34 Tex. Admin. Code § 3.1002 - Mixed Beverage Sales Tax
(a)
Definitions. The following words and terms, when used in this section, shall
have the following meanings, unless the context clearly indicates otherwise.
(1) Alcoholic beverage--Alcohol, or any
beverage containing more than 0.5% of alcohol by volume, which is capable of
use for beverage purposes, either alone or diluted.
(2) Complimentary alcoholic beverage--An
alcoholic beverage served without any consideration paid to the
permittee.
(3) Governmental
entity--The United States; an unincorporated instrumentality of the United
States; a corporation that is an agency or instrumentality of the United States
and is wholly owned by the United States or by another corporation wholly owned
by the United States; the state of Texas; a county, city, special district, or
other political subdivision of Texas; or other state or governmental unit
boarding Texas but only to the extent those units exempt or do not impose tax
on similar sales of items to Texas or a political subdivision of
Texas.
(4) Nonprofit
organization--An organization that is exempted from the sales and use tax
imposed under Tax Code, Chapter 151, by operation of Tax Code, §
151.310(a)
(Religious, Educational, and Public Service Organizations).
(5) Permittee--A person who holds any of the
following permits issued by the Texas Alcoholic Beverage Commission: a mixed
beverage permit, private club registration permit, private club exemption
certificate permit, private club registration permit with a retailer late hours
certificate, nonprofit entity temporary event permit, private club registration
permit with a food and beverage certificate, mixed beverage permit with a late
hours certificate, mixed beverage permit with a food and beverage certificate,
or distiller's and rectifier's permit. The term includes an agent, servant, or
employee of that person.
(b) Mixed beverage sales tax. A tax at a rate
of 8.25% is imposed on each alcoholic beverage sold, prepared, or served by a
permittee, and on ice and each nonalcoholic beverage sold, prepared, or served
by a permittee to be mixed with alcohol and consumed on the permittee's
premises. The sales price of each item on which mixed beverage sales tax is
imposed includes, but is not limited to, those items identified in §
3.1001(c) of
this title. Those items identified in §
3.1001(f)(1) -
(8) of this title are excluded from the sales
price of items on which mixed beverage sales tax is imposed. Mixed beverage
sales tax is imposed in addition to the mixed beverage gross receipts tax
imposed under Tax Code, Chapter 183, Subchapter B.
(c) Administration, collection, and
enforcement of mixed beverage sales tax.
(1)
Except as otherwise provided in this paragraph, mixed beverage sales tax is
administered, collected, and enforced in the same manner as sales and use tax
is administered, collected, and enforced in Tax Code, Chapter 151, except:
(A) a permittee may not deduct or withhold
any amount of taxes collected as reimbursement for the cost of collecting the
tax, pursuant to Tax Code, §
151.423 (Reimbursement to
Taxpayer for Tax Collection);
(B) a
permittee may not receive a discount for prepaying the tax, pursuant to Tax
Code, §
151.424 (Discount for
Prepayments); and
(C) any record,
report or other instrument required to be filed by a permittee is not
confidential under Tax Code, §
151.027(a)
(Confidentiality of Tax Information).
(2) Tax due is debt of the purchaser. Mixed
beverage sales tax is a debt of the purchaser to the permittee until
collected.
(3) Tax-included sales
price. The total amount shown on a customer's sales invoice, billing, service
check, ticket, or other receipt for sales that are subject to mixed beverage
sales tax is presumed to be the sales price, without tax included. Contracts,
bills, invoices, or other receipts that merely state that "all taxes" are
included are not sufficient to relieve either the customer or the permittee of
their tax responsibilities on the transaction. The permittee may overcome the
presumption by using the permittee's records to show that tax was included in
the sales price.
(4) Record-keeping
requirements. Permittees are responsible for creating and maintaining records
of purchases and sales as required by §
3.1001(j) - (m) and
(o) of this title.
(5) Bad debts. Bad debt deductions from mixed
beverage sales tax are treated in the same manner as bad debt deductions from
sales tax. For more information on bad debt deductions from sales tax, refer to
§
3.302 of this title (relating to
Accounting Methods, Credit Sales, Bad Debt Deductions, Repossession, Interest
on Sales Tax, and Trade-Ins). The exclusion of bad debts from the mixed
beverage gross receipts tax base, as established in §
3.1001(n) of
this title, does not apply to mixed beverage sales tax.
(d) Separate tax disclosure statement.
(1) A permittee may include on a customer's
sales invoice, billing, service check, ticket, or other receipt that includes
an item subject to mixed beverage sales tax:
(A) a statement that mixed beverage sales tax
is included in the sales price;
(B)
a separate statement of the amount of mixed beverage gross receipts tax to be
paid by the permittee on that sale;
(C) a separate statement of the amount of
mixed beverage sales tax imposed on that item;
(D) a statement of the combined amount of
mixed beverage gross receipts tax and mixed beverage sales tax to be paid on
that item; or
(E) a statement of
the combined amount of mixed beverage sales tax and sales and use tax imposed
under Tax Code, Chapter 151, to be paid on all items listed on that sales
invoice, billing, service check, ticket, or other receipt.
(2) Mixed beverage gross receipts tax cannot
be charged to or paid by the customer. A receipt with a statement of the
combined amount of mixed beverage gross receipts tax and mixed beverage sales
tax provided in paragraph (1)(D) of this subsection must clearly show that the
customer is not being charged mixed beverage gross receipts tax.
(3) For each receipt with a statement of the
combined amount of mixed beverage sales tax and sales and use tax, as provided
in paragraph (1)(E) of this subsection, the permittee's books and records must
clearly show the amount of mixed beverage sales tax and sales and use tax on
each sale of alcohol.
(e)
Complimentary beverages. A permittee owes sales and use tax, as imposed by Tax
Code, Chapter 151, on the purchase of alcoholic beverages, ice, and
nonalcoholic beverages that are ingredients of a complimentary alcoholic
beverage or that are served or provided by the permittee, without any
consideration from the customer, to be mixed with a complimentary alcoholic
beverage and consumed on the permittee's premises. The permittee also owes
sales and use tax on taxable items that are furnished with a complimentary
alcoholic beverage, such as napkins and straws.
(f) Exemptions; governmental entities;
nonprofit organizations; university and student organizations; volunteer fire
departments; temporary permit.
(1)
Governmental entity exempt on purchase of alcohol. A governmental entity can
claim an exemption from mixed beverage sales tax on the purchase of alcohol in
the same manner as a governmental entity can claim exemption from the payment
of sales and use tax on the purchase of alcohol under Tax Code, §
151.309.
(2) Purchase of alcohol by nonprofit
organization not exempt. A nonprofit organization cannot claim an exemption
from the mixed beverage sales tax on the purchase of alcohol. In addition,
except as provided in this subsection, a nonprofit organization is responsible
for collecting mixed beverage sales tax on the sale, preparation, or service of
alcoholic beverages to the same extent that the organization is responsible for
paying mixed beverage gross receipts tax on such beverages. For more
information, refer to §
3.1001(e) of
this title.
(3) Nonprofit
organizations; fundraising events.
(A) The
sale, preparation, or service of alcohol is exempt from mixed beverage sales
tax when sold by a nonprofit organization that qualifies for exemption from
sales and use tax under Tax Code, §
151.310(a)(1) or
(2) during a qualifying fundraising sale or
auction authorized by Tax Code, §
151.310(c).
(B) Except as provided in subparagraph (A) of
this paragraph, the sale, preparation, or service of alcohol by a nonprofit
organization that qualifies for exemption from sales and use tax under Tax
Code, §
151.310(a)(1) or
(2) is computed in the same manner as mixed
beverage gross receipts tax is computed in §
3.1001(e) of
this title.
(4)
University and college student organizations. The sale, preparation, or service
of alcohol is exempt from mixed beverage sales tax when sold by a university or
college student organization that is certified as an affiliated organization by
a university or college as defined in Education Code, §
61.003
(Definitions) during a sale authorized by Tax
Code, §
151.321 (University and
College Student Organizations).
(5)
Volunteer fire departments; fundraising events. The sale, preparation, or
service of alcohol is exempt from mixed beverage sales tax when sold by a
volunteer fire department that qualifies for exemption from sales and use tax
under Tax Code, §
151.310(a)(4)
during a qualifying fundraising sale or auction authorized by Tax Code, §
151.310(c-1).
This exemption is effective May 28, 2015. A previous exemption from mixed
beverage sales tax on the sale, preparation, or service of alcohol when sold by
volunteer fire departments at fundraising events expired on September 1,
2014.
(6) Temporary mixed beverage
permit required. Nonprofit organizations, university or college student
organizations, and volunteer fire departments must hold a permit, license or
certificate, issued by the Texas Alcoholic Beverage Commission, in order to
sell alcoholic beverages and claim an exemption from mixed beverage sales tax
on those sales pursuant to paragraphs (3) - (5) of this subsection.
(7) Governmental entities and nonprofit
organizations owe mixed beverage gross receipts tax. A governmental entity or
nonprofit organization is not exempt from the payment of mixed beverage gross
receipts tax on receipts from the sale, service, or preparation of alcoholic
beverages. This includes sales of alcohol during any fundraising sale or
auction. For more information, refer to §
3.1001(e) of
this title.
(g) Lump-sum
charges that include alcoholic beverages and additional items together for a
single price.
(1) Permittees shall compute
mixed beverage sales tax on alcoholic beverages that are served together with
meals for a single charge in the same manner as mixed beverage gross receipts
tax is computed in §
3.1001(c)(1)(D)
of this title.
(2) Permittees shall
compute mixed beverage sales tax on alcoholic beverages that are served at
private clubs, special events, or functions in the same manner as mixed
beverage gross receipts tax is computed in §
3.1001(d) of
this title.
(h) Inventory
used in cooking. Alcoholic beverages used in cooking are exempt from both mixed
beverage sales tax under Tax Code, Chapter 183, and sales and use tax under Tax
Code, Chapter 151, provided that the permittee follows the record-keeping
requirements set out in §
3.1001(h) and (l)
of this title.
(i) Monthly mixed
beverage sales tax reports. Each permittee must file a monthly mixed beverage
sales tax report on or before the 20th day of the following month even if no
sales or services of alcoholic beverages were made during the month. Reports
and payments due on a Saturday, Sunday, or legal holiday may be submitted on
the next business day. The Texas Mixed Beverage Sales Tax report is due in
addition to the Texas Mixed Beverage Gross Receipts Tax report to be filed
under Tax Code, Chapter 183, Subchapter B, and the Texas Sales and Use Tax
report required to be filed under Tax Code, Chapter 151.
Notes
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