34 Tex. Admin. Code § 3.305 - Criminal Offenses and Penalties
(a)
General. Tax Code, Chapter 151, prohibits certain activities and provides
criminal penalties for violations.
(b) Criminal offenses provided in Tax Code,
Chapter 151, include, but are not limited to, the following:
(1) A seller commits an offense if the seller
directly or indirectly advertises, holds out, or states to a customer or to the
public that the tax is not part of the sales price payable by the customer.
This offense is a misdemeanor punishable by a fine of not more than $500 for
each occurrence.
(2) It is not a
criminal offense if:
(A) a seller indicates
in an advertisement, holding out, or statement that the seller is paying the
tax due on the purchased item(s) for the customer;
(B) the seller does not indicate or imply in
the advertisement, holding out, or statement that the sale is exempt or
excluded from taxation; and
(C)
any purchaser's receipt or other statement given to the customer lists the
sales price paid or to be paid by the customer, separately states the amount of
the tax due on the purchase price, and indicates that the tax will be paid and
remitted by the seller.
(3) A person commits an offense if the person
intentionally or knowingly makes a false entry in, or a fraudulent alteration
of, an exemption or resale certificate; makes, presents, or uses an exemption
or resale certificate with knowledge that it is false and with intent that the
certificate be accepted as valid; or intentionally conceals, removes, or
impairs the verity or legibility of an exemption or resale certificate; or
unreasonably impedes the availability of an exemption or resale certificate. An
offense is:
(A) a Class C misdemeanor if the
tax avoided by the use of the exemption or resale certificate is less than
$20;
(B) a Class B misdemeanor if
the tax avoided by the use of the exemption or resale certificate is $20 or
more but less than $200;
(C) a
Class A misdemeanor if the tax avoided by the use of the exemption or resale
certificate is $200 or more but less than $750;
(D) a felony of the third degree if the tax
avoided by the use of the exemption or resale certificate is $750 or more but
less than $20,000; and
(E) a felony
of the second degree if the tax avoided by the use of the exemption or resale
certificate is $20,000 or more.
(4) A person or officer of a corporation
commits an offense if the person or the corporation engages in business as a
seller in this state without a permit or with a suspended permit. A separate
offense is committed each day a person operates a business without a permit or
with a suspended permit. An offense is:
(A) a
Class C misdemeanor for a first offense;
(B) a Class B misdemeanor punishable by a
fine not to exceed $2,000 for a second conviction;
(C) a Class A misdemeanor punishable by a
fine not to exceed $4,000 for a third conviction; and
(D) a Class A misdemeanor punishable by a
fine not to exceed $4,000, confinement in jail for a term not to exceed a year,
or both the fine and confinement for a fourth or subsequent
conviction.
(5) A person
commits an offense if the person intentionally or knowingly fails to pay to the
comptroller the tax collected by that person. When tax is collected and not
paid pursuant to one scheme or continuous course of conduct, all such conduct
may be considered as one offense and the amounts of tax collected and not paid
may be aggregated in determining the grade of the offense. An offense is:
(A) a Class C misdemeanor if the amount of
the tax collected and not paid is less than $50;
(B) a Class B misdemeanor if the amount of
the tax collected and not paid is $50 or more but less than $500;
(C) a Class A misdemeanor if the amount of
the tax collected and not paid is $500 or more but less than $1,500;
(D) a state jail felony if the amount of the
tax collected and not paid is $1,500 or more but less than $20,000;
(E) a felony of the third degree if the
amount of the tax collected and not paid is $20,000 or more but less than
$100,000;
(F) a felony of the
second degree if the amount of the tax collected and not paid is $100,000 or
more but less than $200,000; and
(G) a felony of the first degree if the
amount of the tax collected and not paid is $200,000 or more.
(6) A person commits an offense if
the person refuses to furnish a report as required by Tax Code, Chapter 151, or
by the comptroller. An offense is:
(A) a Class
C misdemeanor for a first offense;
(B) a Class B misdemeanor punishable by a
fine not to exceed $2,000 for a second conviction; and
(C) a Class A misdemeanor punishable by a
fine not to exceed $4,000 for a third or subsequent conviction.
(7) A person commits an offense if
the person intentionally or knowingly conceals, destroys, makes a false entry
in, or fails to make an entry in records that are required to be made or kept
under Tax Code, Chapter 151. An offense is a felony of the third
degree.
(8) A person commits an
offense if the person fails to produce or allow inspection of a record that is
required to be kept under Tax Code, Chapter 151, within an allowed period of
time after a person who is authorized by the comptroller requests the record.
Except as provided in paragraph (9) of this subsection, an offense is a Class C
misdemeanor. A separate offense is committed each day the person fails to allow
inspection of records or fails to produce records after the allowed time period
expired. See subsection (c) of this section for certain restrictions.
(9) A person commits an offense if the person
intentionally fails to produce to the comptroller records that document the
taxpayer's taxable sale of items that the taxpayer obtained using a resale
certificate. The records to which the offense applies are those required to be
kept under Tax Code, §
151.025 (Records Required to
be Kept), which were requested by the comptroller under Tax Code, §
151.023 (Investigations and
Audits) and which are not produced in the period required by that section. The
items to which the offense applies are items the sales of which are required to
be reported to the comptroller under Tax Code, §§
151.433 (Reports by
Wholesalers and Distributors of Beer, Wine, and Malt Liquor), 154.212 (Reports
by Wholesalers and Distributors of Cigarettes), or 155.105 (Reports by
Wholesalers and Distributors of Cigars and Tobacco Products). It is an
affirmative defense to prosecution under this paragraph that the items listed
for purchase on the resale certificate had not been resold at the time of the
comptroller's request for records under Tax Code, §
151.023. If the conduct
described by this paragraph is related to one scheme or continuous course of
conduct, all such conduct may be considered as one offense and the amounts
aggregated in determining the grade of the offense. See subsection (c) of this
section for certain restrictions. An offense is:
(A) a Class C misdemeanor if the tax avoided
by use of the resale certificate is less than $20;
(B) a Class B misdemeanor if the tax avoided
by use of the resale certificate is $20 or more but less than $200;
(C) a Class A misdemeanor if the tax avoided
by use of the resale certificate is $200 or more but less than $750;
(D) a felony of the third degree if the tax
avoided by use of the resale certificate is $750 or more but less than $20,000;
or
(E) a felony of the second
degree if the tax avoided by use of the resale certificate is $20,000 or
more.
(c)
Inspection and demand for production. Tax Code, §
151.023 permits the
comptroller to inspect business premises where a taxable event has occurred and
to issue a written demand notice to a taxpayer or to an employee, an authorized
representative, or agent of the taxpayer for the production of documents within
10 business days of delivery of the notice. This authority will be exercised
within the parameters outlined in §
3.281(f) of this
title (relating to Records Required; Information Required). The comptroller may
file criminal charges with appropriate authorities for violations of Tax Code,
§
151.023, if the taxpayer
fails to permit inspection or fails to produce documents in response to a
demand by the comptroller's Enforcement Division or Criminal Investigation
Division.
(d) Confidential
information. The comptroller or the attorney general may use taxpayer
information or records made confidential by Tax Code, Title 2 to enforce Tax
Code, Title 2 or the criminal laws of Texas or the United States, or may
authorize the use of information or records made confidential by Tax Code,
Title 2 in a judicial or administrative proceeding in which this state, another
state, or the federal government is a party.
(e) Penal Code.
(1) Criminal conspiracy. Penal Code, §
15.02 (Criminal
Conspiracy) and §15.04 (Renunciation Defense) apply to all criminal
offenses prescribed by the Tax Code.
(2) Organized crime. A person commits an
offense under Penal Code, §
71.02, if the person, with
the intent to establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang, commits or
conspires to commit a felony offense prescribed by the Tax Code. The terms
"combination," "profits," "criminal street gang," and "conspires to commit,"
are defined by Penal Code, §
71.01.
(3) Money laundering. The definition of the
term "proceeds" in Penal Code, Chapter 34 (Money Laundering) includes funds
acquired or derived directly or indirectly from, produced through, or realized
through conduct that constitutes an offense under Tax Code, §
151.7032 (Failure to Pay
Taxes Collected; Criminal Penalty and Aggregation of Amounts
Involved).
(f) Venue.
The venue for prosecution of any offense incurred under Tax Code, Chapter 151
is Travis County or the county in which any element of the offense occurs. If
prosecution for engaging in criminal conspiracy, an organized criminal
activity, or money laundering is based upon an offense classified as a felony
under the Tax Code, the venue for prosecution of the conspiracy, organized
criminal activity, or money laundering is any county in which venue for the
underlying offense is proper under the Tax Code.
Notes
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