34 Tex. Admin. Code § 3.323 - Imports and Exports
(a) Definitions.
The following words and terms, when used in this section, shall have the
following meanings, unless the context clearly indicates otherwise.
(1) Air forwarder--A licensed International
Air Transportation Association freight forwarder.
(2) Consignee--The person named in a bill of
lading to whom or to whose order the bill promises delivery.
(3) Consignor--The person named in a bill of
lading as the person from whom the goods have been received for
shipment.
(4) Licensed and
certificated carrier--A person authorized by the appropriate United States
agency or by the appropriate state agency within the United States to operate
an aircraft, vessel, train, motor vehicle, or pipeline as a common or contract
carrier. Certificates of inspection or airworthiness certificates are not the
appropriate documents for authorizing a person to operate as a common or
contract carrier. These documents relate to the carrier device itself rather
than a person's right to operate a carrier business.
(5) Licensed customs broker--A person who is
licensed by the United States Customs Service to act as a custom house broker
and who holds a Texas Customs Broker's License issued by the comptroller as
provided in §
3.360 of this title (relating to
Customs Brokers).
(6) Ocean
forwarder--A licensed Federal Maritime Commission freight forwarder.
(b) United States Constitution. On
the basis of the import and export clause of the United States Constitution,
Article 1, §10, clause 2, tangible personal property imported into or
exported from Texas is exempt from taxation by the Tax Code, §
151.307 and §
151.330, so long as the
property retains its character as an import or export.
(c) Exports.
(1) When an exemption is claimed because
tangible personal property is exported beyond the territorial limits of the
United States, proof of export may be shown only by:
(A) a copy of a bill of lading issued by a
licensed and certificated carrier of persons or property that shows the seller
as consignor, the buyer as consignee, and a delivery point outside the
territorial limits of the United States;
(B) documentation that is valid under §
3.360 of this title (relating to
Customs Brokers) provided by a licensed customs broker certifying that the
property will be exported to a point outside the territorial limits of the
United States;
(C) formal entry
documents from the country of destination showing that the property was
imported into a country other than the United States. For the country of
Mexico, the formal entry document would be the pedimento de importaciones
document with a computerized, certified number issued by Mexican customs
officials, or an alternative type of formal entry document also used by Mexican
customs officials, such as the boleta;
(D) a copy of the original airway, ocean, or
railroad bill of lading issued by a licensed and certificated carrier that
describes the property being exported and a copy of the air forwarder's, ocean
forwarder's, or rail freight forwarder's receipt if an air, ocean, or rail
freight forwarder takes possession of the property in Texas; or
(E) a maquiladora exemption certificate
issued by an organization of the type defined in §
3.358 of this title (relating to
Maquiladoras). The maquiladora must also provide a copy of its maquiladora
export permit issued by the comptroller.
(2) The retailer is responsible for obtaining
proof of exportation. Only one type of proof relating to a particular piece of
property is necessary. For example, a furniture store sells a table and
collects sales tax. The purchaser returns to the store a week later with a
valid pedimento de importaciones showing that the table was imported into
Mexico. The retailer may accept the pedimento, alone, as proof of export and
refund the tax. It is not necessary for the retailer to also obtain an export
certification form issued by a licensed customs broker. Except as provided in
§
3.358 of this title (relating to
Maquiladoras), exemption certificates, affidavits, or statements from the
purchaser that the property will be or has been exported are not sufficient to
exempt the sale as an export. The certification form provided by a licensed
Texas customs broker as provided in §
3.360 of this title (relating to
Customs Brokers), is acceptable as proof of export. A passport number taken by
a seller from a passport issued by a foreign country is not acceptable as proof
of export. For information concerning resale certificates given by Mexican
retailers, see §
3.285 of this title (relating to
Resale Certificate; Sales for Resale).
(3) Storing property in Texas by the owner
prior to exportation is a use of that property in Texas. Property stored or
otherwise used or consumed in Texas by the owner loses its exemption as an
export. For example, clothing or jewelry actually worn by the purchaser in
Texas is used in Texas; automotive parts (not including electronic audio
equipment) installed on the purchaser's motor vehicle in Texas are used in
Texas if the vehicle is subsequently driven in Texas; and food ready for
immediate consumption that is purchased in Texas is presumed to be used in
Texas. By law, electronic audio equipment retains the exemption even if
installed in a motor vehicle that is driven in Texas prior to export.
Sufficient time will be allowed to arrange for shipping. Property in Texas
longer than 30 days from date of purchase will be presumed to have been stored.
Any use of the property in Texas by the owner prior to export also causes the
loss of the export exemption. Property in the hands of a freight forwarder is
not covered by this provision.
(4)
The sale of property to military personnel is taxable unless proof of export is
maintained as outlined in paragraph (1) of this subsection.
(5) If a seller delivers property to a
purchaser in Texas, the seller must collect tax at the time of sale unless the
sale is exempt for a reason other than export and the seller accepts a properly
completed resale or exemption certificate. Tax may not be refunded until the
property has actually been exported from the territorial limits of the United
States and the seller has received valid proof of export as described in this
subsection. There is a rebuttable presumption that an export certification form
issued by a licensed customs broker who complies with §
3.360 of this title (relating to
Customs Brokers) is valid. Tax not collected will be assessed against the
seller. This paragraph does not apply when proof of export is provided to the
seller at the time of sale by a maquiladora according to the terms of paragraph
(1)(E) of this subsection.
(d) Imports. Property imported into Texas
from another country is exempt from Texas use tax as long as the property
retains its character as an import. When transit ceases in Texas, the import
becomes subject to the Texas use tax.
(e) Refunds.
(1) A retailer who collects sales tax on
tangible personal property that qualifies for exemption under subsection (b) of
this section may refund the tax to the original purchaser or the original
purchaser's assignee upon receipt of export documentation as required by
subsection (c) of this section.
(2)
A retailer who receives documentation that is valid under subsection (c)(1)(B)
of this section, must report the total amount of sales tax refunded as provided
in subsection (g) of this section, may not refund the tax paid under this
chapter on that purchase before:
(A) the 24th
hour after the hour stated as the time of export on the documentation, if the
retailer is located in a county that borders the United Mexican States;
or
(B) the seventh day after the
day stated as the date of export on the documentation, if the retailer is
located in a county that does not border the United Mexican States.
(3) The refund may be made by
certified check, company check, money order, credit memo, or cash. If the
refund is made in cash, the retailer must receive at the time the refund is
made a receipt showing a description of the property purchased, the amount and
date of the refund, and the name, address, and signature of the purchaser and,
if applicable, the purchaser's assignee. A retailer who issues a tax refund to
the purchaser's assignee must also receive a copy of the purchaser's written
assignment of the right to a refund. A retailer who makes a refund before the
time prescribed by subsection (e)(2)(A) or (B) of this section or makes a
refund that is undocumented or improperly documented is liable for the tax
refunded plus interest.
(4) A copy
of the certified check, company check, money order, credit memo, or signed cash
receipt and a copy of the written assignment of the purchaser's right to a
refund, if applicable, must be attached to the original export documents and
maintained in the seller's files.
(5) In an audit, the auditor must be able to
tie the export documents to the original taxable transaction. The seller must
retain the original invoice of the sale. Cash register receipts and other
records of the original taxable transaction that do not include a detailed,
specific description of the items purchased are not sufficient to tie the
export documents to the original taxable transaction. Refunds made pursuant to
undocumented or improperly documented export exemptions will be assessed
against the seller.
(f)
Records. Please refer to §
3.281 of this title (relating to
Records Required; Information Required), §
3.282 of this title (relating to
Auditing Taxpayer Records), and §
3.360 of this title (relating to
Customs Brokers).
(g) Reports.
Retailers are required to report the total amount of sales tax refunded for
items exported beyond the territorial limits of the United States based on
licensed customs broker certifications on a supplemental sales tax report
prescribed by the comptroller at the same time and for the same reporting
period as the retailer's state sales and use tax return.
Notes
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