(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Dealer--A wholesaler, retailer, or any other person who sells or offers to sell lead-acid batteries. (2) Lead-acid battery--Any battery, new or used, which contains lead and sulfuric acid, in liquid or gel form. (3) Sale for resale--A sale of a lead-acid battery to a purchaser for the purpose of reselling the battery in the normal course of business in the form or condition in which it is acquired (i.e., as a separate item). A sale of a battery that is attached to or becomes an integral part of a vehicle, boat, or other equipment that is being sold, rented, or leased is not a sale for resale. The battery sales fee is due on the sale prior to the battery becoming a part of this equipment. (b) Collection and remittance of the fee. (1) Except as provided in subsection (g) of this section, a dealer must collect the fee on each sale of a lead-acid battery. A fee shall not be charged, collected, or allowed as an offset on a battery taken as a trade-in. (2) If a dealer fails to collect the fee required in paragraph (1) of this subsection, the comptroller may collect the fee from the purchaser. (3) The fee is not due on the sale of a vehicle, boat, or other equipment that has a battery as an integral part of it. (4) The amount of the fee due must be separately stated on the invoice, bill, or contract to the customer and shall be identified as the Texas battery sales fee. (5) A dealer may not advertise, make public, indicate, or imply that the dealer will absorb, assume, or refund any portion of the fee. (c) Report forms. The battery sales fee is to be reported on the Texas battery sales fee report form as prescribed by the comptroller. The fact that the dealer does not receive the form or does not receive the correct form from the comptroller for the filing of the return does not relieve the dealer of the responsibility of filing a return and remitting the fee. (d) Reporting period. (1) Monthly filing. The battery sales fee is due and payable on or before the 20th day of the month following the end of each calendar month. Returns must be filed on a monthly basis unless a dealer qualifies as a quarterly filer under paragraph (2) of this subsection. (2) Quarterly filing. A dealer who owes an average, as computed for the year, of less than $50 for a calendar month or less than $150 for a calendar quarter is required to file a return and remit the collected fees on or before the 20th day of the month following the end of the calendar quarter. The comptroller will notify a dealer when the report and payment may be submitted quarterly. (e) Remittance of the fee. (1) On or before the 20th day of the month following each reporting period, every person required to collect the fee shall file a consolidated return for all businesses operating under the same taxpayer number and remit the total fee due. (2) A dealer may retain $ .025 of each battery fee reported and remitted with his return. (3) The returns must be signed by the person required to file the return or by the person's duly authorized agent, but need not be verified by oath. (f) Records required. (1) Invoices or other records must be kept for at least four years after the date on which the invoices or records are prepared. (2) The comptroller or an authorized representative has the right to examine any records or equipment of any person liable for the fee in order to verify the accuracy of any return made or to determine the fee liability in the event no return is filed. (g) Exemptions. (1) Sales for resale are not subject to the fee. (2) The sale of a battery that under the sales contract is shipped to a point outside Texas is not subject to the fee imposed by this section if the shipment is made by the seller by means of: (A) the facilities of the seller; (B) delivery by the seller to a carrier for shipment to a consignee at a point outside this state; or (C) delivery by the seller to a forwarding agent for shipment to a location in another state of the United States or its territories or possessions. (3) Exports beyond the territorial limits of the United States are not subject to the fee. Proof of export may be shown only by: (A) a copy of a bill of lading issued by a licensed and certificated carrier showing the seller as consignor, the buyer or purchaser as consignee, and a delivery point outside the territorial limits of the United States; (B) documentation provided by a licensed United States customs broker certifying that delivery was made to a point outside the territorial limits of the United States; (C) formal entry documents from the country of destination showing that the battery was imported into a country other than the United States. For the country of Mexico, the formal entry document is the pedimento de importaciones document with a computerized, certified number issued by Mexican customs officials; or (D) a copy of the original airway, ocean, or railroad bill of lading issued by a licensed and certificated carrier which describes the items being exported and a copy of the freight forwarder's receipt if the freight forwarder takes possession of the property in Texas. (4) There is no exemption provided for any organization or governmental agency, except as provided in paragraph (5) of this subsection. (5) The United States, its instrumentalities, and agencies are exempted from the battery sales fee. (6) Sales for disposal or reclamation are not subject to the fee. (7) A battery is exempt from this fee if it meets all of the following criteria: (A) the ampere-hour rating of the battery is less than 10 ampere-hours; (B) the sum of the dimensions of the battery (height, width, and length) is less than 15 inches; and (C) the battery is sealed so that no access to the interior of the battery is possible without destroying the battery. (h) Replacements covered by a warranty or service contract. (1) The replacement of a battery under a manufacturer's warranty, without an additional charge to the purchaser, is not the sale of a battery to the purchaser. This replacement, therefore, is not subject to the fee. If there is a charge to the customer for the replacement (such as a pro rata warranty adjustment), then the customer must pay the battery sales fee. (2) The replacement of a battery under an extended warranty or a service contract, for which the customer pays an extra charge, depends on the terms of the contract. (A) If the replacement is free of charge to the customer, the dealer is responsible for paying the fee. (B) If there is a charge to the customer for the replacement, the customer must pay the fee.
Source Note: The provisions of this §3.711 adopted to be effective April 28, 1992, 17 TexReg 2779; amended to be effective October 14, 1993, 18 TexReg 6744; amended to be effective October 12, 2004, 29 TexReg 9555; amended to be effective February 18, 2007, 32 TexReg 537