34 Tex. Admin. Code § 3.350 - Master Recordings and Broadcasts

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

(1) Audio recording--The fixation of signals representing a series of musical, spoken, or other sounds, but not including motion pictures, by any method now known or later developed.

(2) Broadcast--For the purposes of this section only, the dissemination of audio signals, video signals, or a combination of both audio and video signals in the form of radio or television programming to the public over the segment of the radio spectrum used for broadcasting, and the exhibition of video programming with or without the use of wires to subscribing or paying customers.

(3) C.F.R.--Code of Federal Regulations.

(4) C.F.R.-compliant digital audio broadcast equipment--Tangible personal property that is sold to the permittee or licensee of an AM or FM station that commences interim hybrid In-band On-Channel (IBOC) digital audio broadcast (DAB) pursuant to 47 C.F.R. § 73.404(a) (Interim Hybrid IBOC DAB Operation), if the tangible personal property is necessary for the licensee or permittee to provide the broadcast services described by 47 C.F.R. § 73.403 (Digital Audio Broadcasting Service Requirements) or 47 C.F.R. § 73.404.

(5) C.F.R.-compliant digital television transmission equipment--Tangible personal property that is sold to a digital television broadcast station permittee or licensee to which 47 C.F.R. § 73.624(b) applies, if the tangible personal property is necessary for the permittee or licensee to comply with 47 C.F.R. § 73.682(d) (Digital Broadcast Television Transmission Standard).

(6) Distribute--For purposes of this section only, to supply copies of a master recording to persons who will sell, license, further distribute, broadcast, or exhibit copies of the master recording. For example, copies of a motion picture are distributed to movie theaters which exhibit the motion pictures to the public for consideration.

(7) Exhibit--

(A) To play or perform a master recording or live program at a place open to the public or at any place where a substantial number of persons, outside of a normal circle of a family and its social acquaintances, is gathered; or

(B) to transmit or otherwise communicate a performance of the master recording or live program to the public by any means, whether the members of the public capable of receiving the performance receive it in the same place or in separate places and at the same or different times.

(8) License--To authorize or otherwise grant legal permission to use a copy of a master recording in a limited manner, for a limited purpose, or both. For example, the owner of a master audio recording may license a copy of the master audio recording for use as part of an advertising campaign in a specific geographic area for a specified period of time.

(9) Live program--Radio or television content that is not pre-recorded and that is broadcast by a producer of cable programs or a radio or television station licensed by the Federal Communications Commission.

(10) Master recording--The principal media on which images, sound, or a combination of images and sound are first fixed, and from which copies are intended to be reproduced for the purpose of obtaining consideration from the ultimate sale, license, distribution, broadcast, or exhibition of the copies. A master recording may be an audio recording, motion picture recording, video recording, or a combination of these.

(A) Master recordings include feature films, television programs, television commercials, corporate films, infomercials, recordings of live performances, musical albums, and other projects that are intended for commercial distribution, even if commercial distribution is very limited, such as the distribution of training or industrial films.

(B) Master recordings do not include training videos for in-house use, student films, wedding videos, recordings exhibited on social media, and other recordings not intended to be copied for commercial distribution or commercial exhibition.

(C) A master recording may contain interactive software that allows a viewer to locate, see, or hear a segment of the master recording without having to see or hear the master recording in full.

(D) A master recording does not include video games even if the games contain recorded audio or visual sequences.

(11) Media production facility--A structure, building, or room used for the specific purpose of creating a moving image project. The term includes but is not limited to:

(A) a soundstage and scoring stage;

(B) a production office;

(C) an editing facility, an animation production facility, and a video game production facility;

(D) a storage and construction space; and

(E) a sound recording studio and motion capture studio.

(12) Motion picture recording--A series of related images stored in any method now known or later developed which, when shown in succession, together with any accompanying sounds, impart an impression of motion.

(13) Moving image project--A visual and sound production, including a film, television program, national or multistate commercial, or digital interactive media production. The term does not include a production that is obscene, as defined by Penal Code, § 43.21 (Definitions).

(14) Producer--A person who owns the original rights to a master recording.

(15) Qualified media production location--A location in a media production zone that has been designated by the Texas Film Commission as a qualified media production location in accordance with Government Code, Chapter 485A (Media Production Development Zones).

(16) Qualified person--A person certified by the Texas Film Commission as a qualified person under Government Code, § 485A.201 (Qualified person).

(17) Texas Film Commission--The division of the Office of the Governor of Texas, by whatever name called, that is assigned to administer and monitor the implementation of the Media Production Development Zone Act as provided in Government Code, Chapter 485A.

(18) Video game--An electronic game in which a player controls images on a video screen, television, or computer monitor.

(19) Video recording--A series of related images intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with any accompanying sounds, stored in any method now known or later developed.

(b) Master recordings.

(1) The sale of a master recording by the producer of the master recording is exempt from sales and use tax under this section.

(2) The sale of a copy of a master recording is taxable under Tax Code, Chapter 151 (Limited Sales, Excise, and Use Tax) as the sale of tangible personal property.

(3) A license of all or part of the rights to a master recording is not subject to tax under Tax Code, Chapter 151.

(c) Exempt items used in production.

(1) Except as provided in subsections (d) and (e) of this section, sales and use tax is not due on the purchase or use of the following items:

(A) tangible personal property that will become an ingredient or component part of a master recording or a live program; and

(B) tangible personal property or taxable services that are necessary or essential to, and used or consumed in or during, the production of a master recording or live program.

(i) Tangible personal property that is leased or rented is eligible for exemption described in this subparagraph regardless of the length of the lease or rental.

(ii) Taxable items used in pre-production activities do not qualify for the exemption under this section because they are not used or consumed in or during the production of the master recording or live program. Examples of equipment used in pre-production include equipment used in gathering news prior to the beginning of a television production and computers and software used in authoring or editing a script.

(2) The exemption in this subsection includes, but is not limited to:

(A) cameras, film, and film developing chemicals that are necessary and essential to and used or consumed in the production of a master recording or a live program;

(B) lights, props, sets, teleprompters, microphones, digital equipment, special effects equipment and supplies, and other equipment that is necessary and essential to and used or consumed directly in the production of a master recording or a live program; and

(C) audio or video routing switchers located in a production or recording studio that are necessary and essential to and used or consumed directly in the production of a master recording or a live program.

(d) Nonexempt items used in production.

(1) The following items do not qualify for exemption under this section even when used in the production of a master recording or a live program:

(A) office equipment or supplies;

(B) maintenance or janitorial equipment or supplies;

(C) machinery, equipment, or supplies used in sales or transportation activities;

(D) machinery, equipment, or supplies used in distribution activities, unless otherwise exempted by this section;

(E) taxable items that are used incidentally in the production of a master recording or a live program;

(F) telecommunications equipment and services;

(G) transmission equipment, other than qualifying C.F.R.-compliant digital television transmission equipment and qualifying C.F.R.-compliant digital audio broadcast equipment;

(H) security services;

(I) motor vehicle parking services; and

(J) food ready for immediate consumption.

(2) Examples of nonexempt items used in production include, but are not limited to: tents for catering or staging areas; office furniture; crew jackets; flowers for dressing rooms; catering or other food ready for immediate consumption; bodyguard services; script typing; landscape maintenance; director's chairs; gas cans; ladders; shipping cases; battery chargers; mobile offices; pagers, cellular phones, and other communication equipment (except those used exclusively on the set); telecommunications services such as mobile phone service; waste removal (including waste that will be recycled); wardrobe racks; and alcoholic and non-alcoholic beverages.

(3) Taxable items are not exempt under this section when used in the production of a master recording for broadcast, or in the production of a live program for broadcast, if the master recording or live program is not intended to be broadcast to either the general public or to cable television service subscribers or paying customers.

(e) Transportation equipment. Motor vehicles, including trailers and semitrailers, are subject to motor vehicle sales tax and are exempt from sales and use tax imposed by Tax Code, Chapter 151 (Limited Sales, Excise, and Use Tax). For more information on the taxes due on motor vehicles, see Subchapter F, of this chapter (Motor Vehicle Sales Tax). Other types of machinery, equipment, or supplies used in transportation activities, such as helicopters, do not qualify for exemption from sales and use tax under this section.

(f) C.F.R.-compliant digital television transmission.

(1) The purchase of C.F.R.-compliant digital television transmission equipment by a digital television broadcast station permittee or licensee is exempt from sales and use tax. The exemption applies whether the equipment is used for television transmission in high or standard definition.

(2) Equipment that may be used for both analog and digital television transmission is exempt if it is necessary to comply with 47 C.F.R. § 73.682(d) (TV transmission standards). Transmission equipment that is not necessary for digital television transmission, or that can be used only for analog transmission, is not exempt under this section.

(3) An Advanced Television Systems Committee (ATSC) encoder is exempt.

(4) Entities that are not subject to the relevant provisions of 47 C.F.R. Part 73 (Radio Broadcast Services), such as cable and satellite television providers, may not make exempt purchases under this subsection.

(g) C.F.R.-compliant digital audio broadcast equipment.

(1) The purchase of C.F.R.-compliant digital audio broadcast equipment by a radio broadcast station permittee or licensee is exempt from sales and use tax.

(2) Equipment used to transmit both over-the-air digital audio programming at no direct charge to listeners and over-the-air digital audio programming for a fee to listeners is exempt.

(3) Equipment used solely to transmit over-the-air digital audio programming for a fee to listeners is not exempt.

(h) Exemptions for repair and maintenance. Repair or maintenance of tangible personal property that is exempted under this section is also exempt, unless the tangible personal property is installed into realty and has lost its identity as tangible personal property. For information on the repair or maintenance of items that become real property after installation, see § 3.357 of this title (relating to Nonresidential Real Property Repair, Remodeling, and Restoration; Real Property Maintenance). For information on new construction that incorporates materials exempted under this section see § 3.291 of this title (relating to Contractors).

(i) Exemptions for natural gas and electricity.

(1) Natural gas and electricity used in the production of a master recording are exempt.

(2) Natural gas and electricity are taxable when used for a non-exempt purpose. For example, an entertainment venue provides beverages to customers during live performances. The venue also makes master recordings of the live performances. The electricity used for the beverage refrigeration equipment is not exempt; however the electricity used to power the recording equipment is exempt under this subsection. Non-exempt purposes include, but are not limited to, the following:

(A) administrative or office operations;

(B) marketing;

(C) transportation; or

(D) warehousing.

(3) A predominant use study is required to determine the exempt and non-exempt use of natural gas or electricity measured by a single meter. See § 3.295 of this title (relating to Natural Gas and Electricity).

(j) Exemptions for qualified media production locations.

(1) The exemption in this subsection is available only to a qualified person acquiring a taxable item for use at a qualified media production location. Information on becoming certified as a qualified person or a qualified media production location is available through the Texas Film Commission.

(2) The sale, lease, or rental of a taxable item, including nonresidential repair or remodeling services, is exempt if the item is used:

(A) for the construction, maintenance, expansion, improvement, or renovation of a media production facility at a qualified media production location;

(B) to equip a media production facility at a qualified media production location; or

(C) for the renovation of a building or facility at a qualified media production location that is to be used exclusively as a media production facility.

(3) Repair or maintenance of tangible personal property used to equip a media production facility at a qualified media production location is exempt during the exemption period described in paragraph (4) of this subsection.

(4) The exemption in this subsection is temporary.

(A) The exemption begins when both the qualified person and related qualified media production location are certified by the Texas Film Commission.

(B) The exemption ends on the earlier of:

(i) the expiration date identified in the approval documents issued for the certification of the qualified media production location;

(ii) the expiration date identified in the approval documents issued for the certification of the qualified person; or

(iii) the date the certification of either the qualified person or the qualified media production location is revoked.

(C) In no event shall the exemption period extend for more than two years from the earlier of the date of certification of the qualified person or the date of certification of the related qualified media production location.

(5) Reports required. Each qualified person is required to submit a report for each qualified media production location.

(A) The report must be in the form and manner prescribed by the comptroller and must contain the following information:

(i) the name, address, and comptroller-issued taxpayer identification number of the qualified person;

(ii) the name, address, and, if applicable, comptroller-issued taxpayer identification number of the qualified media production location;

(iii) a description of the project or activity conducted by the qualified person at the qualified media production location;

(iv) the date of certification and the expiration date of the certification of the qualified person and related qualified media production zone as identified in the approval documents issued by the Texas Film Commission;

(v) a statement that no items were purchased tax-free under the exemption in this subsection during the period covered by the report, if applicable; or for each item purchased tax-free under this exemption the following information:

(I) the name, address, and comptroller-issued taxpayer identification number of the seller;

(II) the date of purchase;

(III) the name or description of the item, or like items;

(IV) the purpose or brief explanation of how the item, or like items, were, or are to be, used;

(V) the sales price of the item;

(VI) the lease or rental terms, if applicable; and

(VII) the current location of the item.

(B) Report periods. The initial report covers the time period from the date of certification of the qualified person and the related qualified media production location through August 31. For example, if the qualified person and the related qualified media production location received certification on April 1, the initial report period is April 1 through August 31. Subsequent reports cover the time period from September 1 through August 31 of the following year.

(C) The report is due September 30 each year. If the due date falls on a Saturday, Sunday, or legal holiday, the report will be due the next business day.

(k) Exemption certificates. The exemptions under this section may be claimed by providing the seller with a properly completed exemption certificate at the time of purchase in lieu of paying sales and use tax. See § 3.287 of this title (relating to Exemption Certificates).

(l) Divergent use.

(1) When a taxable item purchased tax-free under a properly completed exemption certificate is used in a taxable manner, sales and use tax is due. The tax is calculated based on the fair market rental value of the tangible personal property for the period of time used in the taxable manner. See § 3.287 of this title and Tax Code, § 151.155 (Exemption Certificate).

(2) Records must be maintained to document the taxable use of an item purchased tax-free, and the payment of sales and use tax due on such use.

Notes

34 Tex. Admin. Code § 3.350

Adopted by Texas Register, Volume 42, Number 04, January 27, 2017, TexReg 320, eff. 2/1/2017