34 Tex. Admin. Code § 3.276 - Surveying Services

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Confirm--To perform any act, at a location or remotely, to reestablish or verify boundaries of real property or the location of a real property improvement. The term includes reestablishing or verifying the location of a boundary used as a reference point to locate or measure to another point, such as the location of an improvement in relation to the boundaries of real property.

(2) Contractor--A person who makes an improvement on real property and who, as a necessary or incidental part of the service, incorporates tangible personal property into the real property improved. For the purposes of this section, the term includes a builder, developer, speculative builder, or other person acting as a builder to improve residential real property.

(3) Determine--To perform any act, at a location or remotely, to establish, mark, or set the boundaries of real property or the location of an improvement. The term includes ascertaining the location of a boundary used as a reference point to locate or to measure another point, such as the location of an improvement in relation to the boundaries of real property.

(4) Landman--An individual who, in the course and scope of the individual's business:

(A) acquires or manages petroleum or mineral interests; or

(B) performs title or contract functions related to the exploration, exploitation, or disposition of petroleum or mineral interests.

(5) Surveying service--An activity performed on land, from the air, under water or remotely that uses relevant elements of law, research, measurement, analysis, computation, mapping, and land description to determine or confirm the boundaries of real property or to determine or confirm the location of an improvement in relation to the boundaries of real property. Professional surveying subject to regulation under Occupations Code, Chapter 1071 (Land Surveyors), is presumed to be a surveying service.

(b) Taxable surveying services. Except as provided in subsection (d) of this section, surveying activities described in subsection (a)(5) of this section that are performed for real property located in Texas are taxable as real property services, including the preparation of the following types of surveys:

(1) As-built survey. A survey to depict the relationship of improvements to property boundary lines.

(2) Boundary survey. A survey to determine or confirm a boundary line on real property, or to obtain data for constructing a map or description showing a boundary line.

(3) Easement survey. A survey to determine or confirm by map or description, the boundaries of a tract of real property used in granting the right, privilege, or liberty given to a person or group to use land belonging to another for a specific and definite purpose. An easement survey may document existing easements or be used to establish a new easement.

(4) Land title survey. A boundary survey to determine or confirm boundary locations for title transfer of real property.

(5) Right-of-way survey. A survey to determine or confirm right-of way-lines, center lines, or reference lines, including surface, overhead and underground lines. Such surveys typically document the route of highways, railroads, pipelines, waterways or canals, and transmission lines for electrical or communication purposes.

(6) Subdivision plat. A survey to divide a tract of real property into parcels or lots, and may include the location of items such as street rights-of-ways or easements. The survey is often performed to meet subdivision statutes or county and municipal regulations. This survey may also be referred to as a lot survey.

(7) Title survey. A survey to investigate and evaluate factors affecting and influencing boundary locations, ownership lines, rights-of-way, and easements within or immediately surrounding a tract of real property. A title survey is commonly performed to locate, determine, or reestablish property boundaries for title insurance purposes.

(8) Staking and placement services. A survey that establishes, remotely or on the ground, the location and position of various structures or construction projects in relation to the boundaries of the involved site. The survey is used for defining the positions of buildings, structures, wells, canals, fences, walls, and other physical facilities in relation to the boundaries or property lines of the site.

(c) Nontaxable surveying services. Surveying activities not described in subsection (a)(5) of this section are not taxable as real property services. Examples of nontaxable surveying services include:

(1) As-built verification survey. A survey after construction is completed to determine characteristics of an improvement other than its relationship to property boundary lines, such as principal horizontal and vertical control points, and the dimensions of the finished structures and/or infrastructures.

(2) Construction survey. Activities prior to and during a construction project to measure aspects of an improvement other than its relationship to property boundary lines, such as activities to control elevation, horizontal location, dimensions, or configuration; to determine if the construction was adequately completed; and to obtain dimensions for calculating quantities used in construction.

(3) Design survey. A survey to obtain information that is essential for planning an engineering project or development and estimating its cost.

(4) Existing oil, gas, or oil and gas well ties survey. A survey to gather the locations of existing oil or gas wells in relation to the location of proposed wells.

(5) Geodetic/Control survey. A survey to provide horizontal and/or vertical coordinates of fixed points on the surface of the earth to which supplementary surveys or mapping efforts are adjusted.

(6) Hydrographic survey. A survey to determine the geometric and dynamic characteristics of bodies of water, including a record of a survey, of a given date, of a water covered region, with particular attention to the relief of the bottom and features under the surface.

(7) Monitoring deformation survey. A survey to periodically measure the horizontal and vertical movement or warpage of the surface of the earth or a physical object or structure.

(8) Oil or gas drilling unit, proration unit, and pooled unit plats. A drilling unit, proration unit, or pooled unit plat submitted to the Railroad Commission.

(9) Seismic survey. A survey to determine the subterranean composition and structure in an area, generally by using a vibroseis or small explosives to measure vibrations.

(10) Topographic survey. A survey to determine the configuration, relief, or elevations of a portion of the earth's surface, including the location of natural features.

(11) Tree survey. A survey to locate and identify existing trees on real property. If services are performed to evaluate the health of a tree, to remove a tree, or to prune a tree, those services are taxable landscaping services. See § 3.356 of this title (relating to Real Property Service).

(12) Building elevation survey. A survey to certify building elevations that is issued for completion of the National Flood Insurance Program Elevation Certificate. If the survey or certificate issued is used to evaluate risks to property, is used to determine an individual's eligibility for insurance coverage, is used to determine the proper insurance premium rate, or for determining the payment of insurance policy benefits, the survey provided is taxable as an insurance service. See § 3.355 of this title (relating to Insurance Services).

(13) Archaeological or historic significance survey. A survey to identify items of archaeological or historic significance performed after boundary surveying has been completed.

(14) Location services. Staking, painting, or otherwise marking the approximate future or existing surface positions of tangible personal property or improvements to realty when the service provider takes no actions listed in subsection (a)(5) of this section to determine or confirm the precise property or easement boundaries or the exact location of the item in relation to the boundaries. For example, marking the approximate location where a portable building is to be installed or staking or re-staking the approximate centerline of a pipeline is not taxable when the person marking the approximate location does not determine or confirm the location of the structures in relation to the boundaries of real property.

(d) Excluded surveying services. A person performing a surveying service described in subsection (a)(5) of this section is not performing a taxable real property service if:

(1) a contractor purchases the surveying service as part of the construction of a new improvement to residential real property or other improvement immediately adjacent to a new improvement to residential real property; or

(2) a landman performs the surveying service and it is necessary to negotiate or secure land or mineral rights for acquisition or trade, including:

(A) determining ownership;

(B) negotiating a trade or agreement regarding land or mineral rights;

(C) drafting and administering contractual agreements;

(D) ensuring that all governmental regulations are complied with; and

(E) any other action necessary to complete the transaction related to a service described by this subsection, other than an information service described by Tax Code, § 151.0038 (Information Service).

(e) Responsibilities of persons providing surveying services.

(1) A person who performs a surveying service described in subsection (a)(5) of this section for consideration must obtain a sales and use tax permit and collect and remit sales or use taxes on all charges for taxable surveying services.

(2) A person who performs a surveying service for a contractor who claims the service is excluded from tax as described in subsection (d)(1) of this section must obtain documentation from the contractor demonstrating the surveying service is being purchased as part of the construction of a new improvement to residential real property or other improvement immediately adjacent to a new improvement to residential real property. The contractor and the person who performs the surveying service must retain a copy of these records in accordance with § 3.281 of this title (relating to Records Required; Information Required). If the comptroller later determines that the surveying service purchased by the contractor was taxable, the contractor will be liable for the tax due on the purchase including any related penalty and interest.

(3) A landman who performs a surveying service defined in subsection (a)(5) of this section that is excluded from tax because it meets the requirements in subsection (d)(2) of this section must retain documentation demonstrating the surveying service provided was not taxable. The landman and purchaser must retain these records in accordance with § 3.281 of this title.

(4) If a purchaser or seller of a nontaxable surveying service described in subsection (d)(1) or (2) of this section does not maintain the documentation demonstrating that the service is nontaxable, the comptroller may proceed against either the seller or the purchaser, or both until the tax, penalty, and interest have been paid. See § 3.282(m) of this title (relating to Auditing Taxpayer Records.)

(f) Resale and exemption certificates. The sale of a surveying service described in subsection (a)(5) of this section is presumed taxable.

(1) Resale certificates. A person who performs a taxable surveying service may issue a resale certificate to a supplier in lieu of paying tax on purchases of tangible personal property if care, custody, and control of the property transfers to the purchaser as part of the taxable surveying service. The care, custody, and control of tangible personal property is transferred to the purchaser of the service when the purchaser has primary possession of the tangible personal property. For example, a person who performs a taxable surveying service may issue a resale certificate to a supplier when purchasing metal pins or PK nails used to mark boundary lines. A person who performs a taxable surveying service may also issue a resale certificate in lieu of paying tax on purchases of taxable services the person intends to transfer to the purchaser as an integral part of the taxable surveying service. A person who performs taxable surveying services owes tax on tangible personal property, such as supplies, machinery and equipment, used or consumed in performing the service.

(A) A person who performs a taxable surveying service may not accept a resale certificate in lieu of collecting tax on a taxable surveying service sold to a purchaser who acquires the service for the purpose of providing a nontaxable service. For example, a person performing taxable surveying services may not accept a resale certificate from a title company on taxable surveying services used in performing nontaxable real estate closing services, even if the title company transfers the survey to the real estate purchaser after the closing. Similarly, a person performing taxable surveying services may not accept a resale certificate from an engineering firm on taxable surveying services acquired for the purpose of providing nontaxable engineering services to either an exempt or non-exempt customer. The engineer owes tax on the purchase of the taxable surveying service used in the provision of the nontaxable engineering service. The engineering firm and the title company are the end-consumers of the taxable surveying services purchased to provide their respective nontaxable services.

(B) A person who performs a nontaxable surveying service may not issue a resale certificate in lieu of paying tax on taxable items used or consumed in performing the nontaxable surveying service. A person who performs a nontaxable surveying service is the end-consumer of all taxable items purchased, leased, or rented to perform the nontaxable service. A person who performs a nontaxable surveying service owes tax on all taxable items purchased to perform the service, unless the items are otherwise exempt.

(2) Exemption certificates. A person who performs a taxable surveying service may accept a properly completed exemption certificate in lieu of collecting tax if an exempt entity directly contracts for and purchases the surveying service. See § 3.322 of this title (relating to Exempt Organizations), § 3.287 of this title (relating to Exemption Certificates). See also § 3.288 of this title (relating to Direct Payment Procedures and Qualifications) regarding purchasers who may issue a direct payment exemption certificate. Purchase vouchers that are issued by governmental entities exempted under Tax Code, § 151.309, are acceptable documentation of exempt transactions. See § 3.322(g)(3) of this title.

(A) Except as provided by subparagraph (B) of this paragraph, a person who performs a taxable surveying service may not accept an exemption certificate from a person performing nontaxable services for an exempt entity described in Tax Code, § 151.309 or § 151.310. The person providing the nontaxable services is the end consumer and owes tax on the purchase of the taxable surveying service, even if the person providing the nontaxable services provides a copy of the survey to the exempt entity upon completion of its nontaxable services.

(B) A person who performs a taxable surveying service may accept an exemption certificate from a contractor under Tax Code, § 151.311, on a purchase of a taxable item for use under a contract to improve realty for an organization that is exempt under Tax Code, § 151.309 or § 151.310.

(g) Unrelated services.

(1) A service is an unrelated service if:

(A) it is not a taxable surveying service nor a service or labor taxable under another provision of Tax Code, Chapter 151 (Limited Sales, Excise, and Use Tax);

(B) it is not provided as a part of the taxable surveying service and is of a type that is commonly provided on a stand-alone basis; and

(C) the performance of the unrelated service is distinct and identifiable. Examples of services that are distinct and identifiable from taxable surveying services include nontaxable surveying services, such as a topographical survey, engineering services and architectural or landscaping design services.

(2) Unrelated nontaxable services and taxable surveying services sold or purchased for a single charge. When an unrelated nontaxable service and a taxable surveying service are sold together for a single charge, the total amount charged is presumed to be taxable. This presumption does not apply if the portion of the charge attributable to the taxable surveying service represents 5.0% or less of the total charge.

(A) The person performing the taxable surveying service with an unrelated nontaxable service may overcome the presumption of taxability by separately stating a reasonable charge for the taxable surveying service to the purchaser at the time of the transaction. A purchaser may presume, in the context of this section, that the service provider's separately stated charge for a taxable surveying service is reasonable. If the charge attributable to the taxable surveying service is not separately stated at the time of the transaction, the service provider or the purchaser may later establish for the comptroller, through documentary evidence, the portion of the total charge that is attributable to an unrelated service.

(B) The taxable surveying service provider's books must support the apportionment of the total charge between a taxable surveying service and an unrelated nontaxable service based on either the cost of providing the taxable surveying service or a comparison to the normal charge for each service if it had been performed on a stand-alone basis. If, after reviewing the transaction, the comptroller determines the charge for a taxable surveying service is unreasonable, considering the cost of providing the service or a comparable charge made in the industry for the service, the comptroller may adjust the charges and assess against the person performing the taxable surveying service any additional tax, penalty, and interest due on the taxable surveying service.

(h) Local taxes. See § 3.334 of this title (relating to Local Sales and Use Taxes) for additional guidance related to local sales and use tax responsibilities.

Notes

34 Tex. Admin. Code § 3.276

Adopted by Texas Register, Volume 47, Number 14, April 8, 2022, TexReg 1888, eff. 4/28/2022