34 Tex. Admin. Code § 3.1201 - Fee for Outdoor Advertising of Cigarettes or Tobacco Products
(a) Definitions. The following words and
terms, when used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1)
Cigarettes--A roll for smoking that is:
(A)
not a cigar; and
(B) that is made
of tobacco or tobacco mixed with another ingredient and wrapped or covered with
a material other than tobacco.
(2) Gross sales price--The sum of:
(A) production costs, including the cost of
layout, paper, materials, printing, distribution, and sign installation, but
not the cost of design and artwork;
(B) media costs, including the cost for
leasing billboards, or any other outdoor space where a message or sign is
displayed; and
(C) cost of sales or
commissions paid to an agency or broker.
(3) Outdoor advertising--A medium, including
a structure, display, light device, figure, painting, drawing, message, plaque,
poster, sign, or billboard, that:
(A) is used
to advertise or to inform;
(B) is
visible from the main-traveled way of a street or highway; and
(C) does not include:
(i) a medium displayed inside a building,
even if the medium is visible from outside the building; or
(ii) a medium that displays the name of the
business, unless that medium also contains a cigarette or tobacco product
trademark, brand or trade name, or logo type.
(4) Purchase--A transaction, including:
(A) an installment and credit
purchase;
(B) an exchange of
service for service or money;
(C) a
signed contract between a purchaser and a seller; and
(D) any other transaction that is the
functional equivalent of a purchase.
(5) Tobacco product--
(A) A cigar;
(B) smoking tobacco, including granulated,
plug-cut, crimp-cut, ready-rubbed, and any form of tobacco suitable for smoking
in a pipe or as a cigarette;
(C)
chewing tobacco, including Cavendish, Twist, plug, scrap, and any kind of
tobacco suitable for chewing;
(D)
snuff or other preparations of pulverized tobacco; or
(E) an article or product that is made of
tobacco or a tobacco substitute and that is not a cigarette or an e-cigarette
as defined by Health and Safety Code, §
161.081(Definitions).
(b) Fee imposed. A fee
is imposed on each purchaser of outdoor advertising in an amount that is equal
to 10% of the gross sales price of any outdoor advertising of cigarettes or
tobacco products in this state.
(c)
Due date and reporting period. A purchaser of outdoor advertising for
cigarettes or tobacco products shall file a report on or before the 20th day of
the month following the end of the calendar quarter in which the advertising
was purchased. The due dates and corresponding reporting periods are:
(1) April 20 for the period covering January
1 through March 31;
(2) July 20 for
the period covering April 1 through June 30;
(3) October 20 for the period covering July 1
through September 30; and
(4)
January 20 for the period covering the previous October 1 through December
31.
(d) Report forms.
Each purchaser must report the outdoor advertising fee on the Texas cigarettes
or tobacco products outdoor advertising fee report as prescribed by the
comptroller. The fact that a purchaser does not receive the form or does not
receive the correct form from the comptroller for the filing of the report does
not relieve the purchaser of the responsibility of filing a report and paying
the required fee.
(e) Payment of
the fee. On or before the 20th day of the month following each reporting
period, every purchaser shall remit the total fee amount due.
(f) Records required.
(1) Invoices, purchase contracts, installment
or credit agreements, or any other records relating to the outdoor advertising
purchase must be kept by the purchaser for at least four years after the date
each report is filed with the comptroller.
(2) Any records or equipment of any person
liable for the fee must be made available to the comptroller or the
comptroller's representative for examination to verify the accuracy of any
report made or to determine the fee liability in the event no report is
filed.
(3) Each purchaser must
maintain records showing:
(A) the location at
which outdoor advertising is displayed in this state;
(B) the date on which the advertising was
purchased;
(C) the gross sales
price paid for outdoor advertising displayed in this state; and
(D) if outdoor advertising is purchased for
display in more than one state, information to support an allocation to Texas
of the appropriate portion of the total amount paid.
(g) Penalty and interest.
(1) Penalty. A purchaser who does not timely
remit the fee due as provided by subsection (e) of this section, shall pay a
penalty of 5.0% of the amount of the fee due and payable. If the purchaser does
not pay the fee before the 30th day after the date on which the fee is due, the
person shall pay a penalty of an additional 5.0% of the amount of the fee due
and payable.
(2) Interest. Interest
accrues on the unpaid tax due beginning 60 days after the due date and ends the
day on which the tax is paid.
(h) Administrative remedies.
(1) A purchaser of outdoor advertising who
violates any part of Health and Safety Code, §
161.123, or a
rule adopted under that section, will be subject to an administrative penalty
and will be notified by certified mail of the reasons for the penalty. The
recourse for a purchaser who does not agree with the imposed administrative
penalty will be governed by the provisions of Tax Code, Chapter 111, Government
Code, Chapter 2001, and §§
1.1-1.42 of this title (relating
to Practice and Procedure).
(2) The
administrative penalty for a violation may be in an amount not to exceed
$5,000. Each day a violation continues or occurs is a separate violation for
the purpose of imposing a penalty.
(3) The following factors shall be taken into
consideration when an administrative penalty is imposed:
(A) the amount of fees due and
owing;
(B) the attempted
concealment of misconduct by the person who committed the violation;
(C) premeditated misconduct by the person who
committed the violation;
(D)
intentional misconduct by the person who committed the violation;
(E) the motive of the person who committed
the violation;
(F) prior misconduct
of a similar or related nature by the person who committed the
violation;
(G) prior written
warnings from any government agency or official regarding statutes or
regulations pertaining to the misconduct;
(H) violation by the person who committed the
violation of an order of the comptroller;
(I) lack of rehabilitative potential or
likelihood for future misconduct of a similar nature;
(J) relevant circumstances increasing the
seriousness of the misconduct; and
(K) any other matter justice may
require.
(4) If the
comptroller finds that a violation has occurred and imposes an administrative
penalty, the comptroller shall give notice of the violation by certified mail
to the permit holder within 15 days of the finding of a violation. The notice
must include a statement of the rights of the permit holder to judicial
review.
(5) If the permit holder
does not respond to the written notice of violation within 15 calendar days, an
order finding that a violation has occurred may be entered and the maximum
penalty may be imposed. If the permit holder requests an administrative
hearing, a hearing will be set. The notice of the setting of the hearing shall
be governed by §§
1.1-1.42 of this title. The permit
holder will have 15 days in which to respond to the setting of the
hearing.
(6) If the comptroller
finds that a purchaser of outdoor advertising violates this section or Health
and Safety Code, Subchapter K, §161.123, or a rule made pursuant to these
sections, the comptroller may impose an administrative fine and/or suspend or
revoke a permit pursuant to Tax Code, §
154.1142.
(7) An administrative hearing will be held at
the office of the Comptroller of Public Accounts in Austin, Texas. The recourse
for a permit holder who does not agree with the administrative decision will be
governed by the provisions of Tax Code, Chapter 111; Government Code, Chapter
2001; and §§
1.1-1.42 of this title.
(8) The burden of proof in an administrative
hearing pursuant to this rule is by a preponderance of the evidence unless
otherwise provided by statute.
(9)
A penalty collected under this section shall be deposited in the general
revenue fund.
(i) If the
purchaser of outdoor advertising does not pay the amount of the administrative
penalty, the comptroller may refer the matter to the attorney general for
collection of the amount of the penalty.
Notes
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