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TITLE 34 PUBLIC FINANCE
PART 1 COMPTROLLER OF PUBLIC ACCOUNTS
CHAPTER 3 TAX ADMINISTRATION
SUBCHAPTER O STATE AND LOCAL SALES AND USE TAXES
RULE §3.322 Exempt Organizations
 

Look for Yellow through out this section for City Exemptions.

(a) General policy. This section is administered using the following guiding principles.

  (1) Because exemptions are not favored under the laws of the State of Texas, the provisions of this section shall be strictly interpreted.

  (2) An organization must show by clear and convincing evidence that it meets the requirements of this section and the relevant statutes. Any unresolved question about the qualifications of an organization will result in denial of exempt status.

(b) Entities that must prove exempt status. Entities or organizations that may qualify for exempt status include:

  (1) a nonprofit charitable or eleemosynary organization that devotes all or substantially all of its activities to the alleviation of poverty, disease, pain, and suffering by providing food, clothing, medicine, medical treatment, shelter, or psychological counseling directly to indigent or similarly deserving members of society with its funds derived primarily from sources other than fees or charges for its services. If the organization engages in any substantial activity other than the activities described in this section, it cannot qualify for exemption under this provision because it is not organized for purely public charity. However, if the organization is engaged in activities, other than those described in this section, and the additional activities are incidental to and in support of the activities conducted by the organization that are described in this section, the organization may be considered for this exemption. No part of the net earnings of the organization may inure to the benefit of any private party or individual other than as reasonable compensation for services rendered to the organization. Some examples of organizations that do not meet the definition of a charitable organization, even if they are nonprofit organizations that perform services that are often charitable in nature, are as follows: fraternal organizations, lodges, fraternities, sororities, service clubs, veterans groups, mutual benefit or social groups, professional groups, trade or business groups, trade associations, medical associations, chambers of commerce, and similar organizations. Although these organizations do not qualify for exemption as charitable organizations, they may qualify for the exemption under Tax Code, §151.310(a)(2), if they obtain an exemption from the Internal Revenue Service (IRS) under Internal Revenue Code (IRC), §501(c). Chambers of Commerce may qualify for exemption under paragraph (6) of this subsection;

  (2) a nonprofit educational organization or governmental entity whose activities are devoted solely to systematic instruction, particularly in the commonly accepted arts, sciences, and vocations, and has a regularly scheduled curriculum that uses the commonly accepted methods of teaching, a faculty of qualified instructors, and an enrolled student body or students in attendance at a place where the educational activities are regularly conducted. An organization that has activities that solely consist of presentation of discussion groups, forums, panels, lectures, or other similar programs, may qualify for the exemption under this provision, if the presentations provide instruction in the commonly accepted arts, sciences, and vocations. An organization cannot qualify for exemption under this provision if the systematic instruction or educational classes are incidental to some other facet of the organization's activities. No part of the net earnings of the organization may inure to the benefit of any private party or individual other than as reasonable compensation for services rendered to the organization. Some examples of organizations that do not meet the requirements for exemption under this definition are professional associations, business leagues, information resource groups, research organizations, support groups, home schools, and organizations that merely disseminate information by distributing printed publications. Although these organizations do not qualify for exemption as educational organizations, they may qualify for the exemption under Tax Code, §151.310(a)(2), if they obtain an exemption from the IRS under IRC, §501(c);

  (3) a nonprofit religious organization that is an organized group of people who regularly meet for the primary purpose of holding, conducting, and sponsoring religious worship services according to the rites of their sect. The organization must be able to provide evidence of an established congregation that shows regular attendance of these services by an organized group of people. An organization that supports or encourages religion as an incidental part of its overall purpose, or one whose general purpose is to further religious work or instill its membership with a religious understanding, cannot qualify for exemption under this provision. No part of the net earnings of the organization may inure to the benefit of any private party or individual other than as reasonable compensation for services rendered to the organization. Some examples of organizations that do not meet the requirements for exemption under this definition are conventions or associations of churches, evangelistic associations, churches with membership consisting of family members only, missionary organizations, and groups that organize for the purpose of holding prayer meetings, Bible study, or revivals. Although these organizations do not qualify for exemption as religious organizations, they may qualify for the exemption under Tax Code, §151.310(a)(2), if they obtain an exemption from the IRS under IRC, §501(c);

  (4) a youth athletic organization that is a nonprofit corporation or association that exclusively provides athletic competition among persons under 19 years of age;

  (5) a nonprofit organization that applies for and obtains a determination letter or a group exemption ruling letter from the IRS that states that the organization qualifies for exemption from federal income tax under IRC, §501(c)(3), (4), (8), (10), or (19);

  (6) a nonprofit chamber of commerce that represents at least one Texas city, county, or geographic locality. For the purpose of this section, a chamber of commerce is a perpetual organization devoted exclusively to promoting the general economic interest of all commercial enterprises in the city, county, or areas it represents. The term does not include chamber-like organizations such as trade associations or business leagues that serve a single line or closely related lines of business within a single industry;

  (7) a nonprofit convention and tourist promotional agency organized or sponsored by at least one Texas city or county;

  (8) an electric cooperative formed under the Electric Cooperative Corporation Act (Utilities Code, Chapter 161) and nonprofit electric cooperatives located outside the state;

  (9) a telephone cooperative formed under the Telephone Cooperative Act (Utilities Code, Chapter 162) and nonprofit telephone cooperatives located outside the state;

  (10) a local organizing committee, as defined in Texas Civil Statutes, Article 5190.14, §1(7), that is exempt from federal income tax under IRC, §501(c). The local organizing committee must be authorized by an endorsing municipality, an endorsing county, or more than one endorsing municipality or county acting collectively to pursue an application and submit a bid on the municipality's or county's behalf to a site selection organization for selection as the host site of one or more games or events, as defined in Texas Civil Statutes, Article 5190.14, §§5A, 5B, or 5C;

  (11) any company, department, or association organized for the purpose of answering fire alarms and extinguishing fires or for the purpose of answering fire alarms, extinguishing fires, and providing emergency medical services, the members of which receive nominal or no compensation for their services; and

  (12) nonprofit corporations formed under Local Government Code, Chapter 501 (Development Corporation Act of 1979) or Health and Safety Code, Chapter 221 (Health Facilities Development Act of 1981) when they purchase items for their exclusive use and benefit. The exemption does not apply to items purchased by the corporation to be lent, sold, leased, or rented.

(c) Entities that are always exempt. Certain entities and organizations are exempt under the law and are not required to request and prove exempt status, except to send information as requested by the comptroller to verify its exempt status under this subsection.

  (1) The United States, its unincorporated agencies and instrumentalities. The United States includes all parts of the executive, legislative, and judicial branches and all independent boards, commissions, and agencies of the United States government. Instrumentalities and agencies of the United States include:

    (A) various military entities under the supervision of a base commander;

    (B) organizations that contract with the United States and whose contracts explicitly and unequivocally state that they are agents of the United States;

    (C) organizations wholly owned by the United States or wholly owned by an organization that is itself wholly owned by the United States;

    (D) organizations specifically named as agents of the United States or exempted as instrumentalities of the United States by federal statutes; and

    (E) organizations having substantially all of the following characteristics:

      (i) they are funded by the United States;

      (ii) they carry out a specific program of the United States;

      (iii) they are managed or controlled by officers of the United States;

      (iv) their officers are appointed by the United States;

      (v) they perform commitments of the United States under an international treaty; and

      (vi) they are not organized for private profit;

  (2) any incorporated agency or instrumentality of the United States wholly owned by the United States or by a corporation wholly owned by the United States. "Wholly owned" means total or 100% ownership;

  (3) federal credit unions organized under 12 United States Code, §1768;

  (4) the State of Texas, its unincorporated agencies and instrumentalities; and

  (5) any county, city, special district or other political subdivision of the State of Texas, and any college or university created or authorized by the State of Texas.

(d) Qualification requirements. To qualify for exempt status under subsection (b) of this section, an organization must satisfy all of the following requirements.

  (1) An organization must be organized or formed solely to conduct one or more exempt activities. The comptroller will consider all documents necessary to prove the purpose for which an organization is formed.

  (2) An organization must devote its operations exclusively to one or more exempt activities.

  (3) An organization must dedicate its assets in perpetuity to one or more exempt activities.

  (4) No profit or gain may pass directly or indirectly to any private shareholder or individual. All salaries or other benefits furnished officers and employees must be commensurate with the services actually rendered.

(e) How to obtain exempt status.

  (1) Application. To apply for and obtain notification of exemption from the comptroller, an organization must complete and submit to the comptroller the appropriate application or its equivalent. Applicants should refer to the Guidelines to Texas Tax Exemptions (publication 96-1045) for assistance in completing the proper application for any exemption sought.

  (2) Documentation required. In addition to a properly completed application, an organization must submit with the application all documents requested by the application and comptroller publication 96-1045, Guidelines to Texas Tax Exemptions, all governing documents as indicated by subparagraph (A) of this paragraph, and all IRS documents indicated by subparagraph (B) of this paragraph.

    (A) Governing documents. A copy of each of the organization's governing documents must be submitted with the application as indicated in clauses (i) - (iii) of this subparagraph.

      (i) An unincorporated organization requesting an exemption must include copies of its formation documents, such as bylaws, constitution, articles of association, certificate of formation, or applicable trust agreement, and any related amendments. If the exemption being sought requires that the organization be a nonprofit, the governing documents must state that the organization is a nonprofit.

      (ii) A non-Texas corporation requesting an exemption must include file-stamped copies of its formation documents and certificate of existence from the home state of incorporation, and any related amendments.

      (iii) A non-Texas limited liability company requesting an exemption must include file-stamped copies of its formation documents and certificate of existence from the home state of formation, and any related amendments.

      (iv) Exception. An organization applying for exemption based on its federal exempt status under IRC, §501(c)(3), (4), (8), (10), or (19), is not required to submit file-stamped copies of its governing documents and certificate of existence unless it is a corporation or limited liability company chartered outside the state of Texas.

    (B) IRS documents. If an organization is applying for exemption based on its federal exempt status under IRC, §501(c)(3), (4), (8), (10), or (19), the organization must provide copies of all pages of its IRS determination letter or group exemption ruling letter and include any caveat or addendum that applies. If the original determination letter or group exemption ruling letter is more than four years old, the organization must also include a copy of a recent letter from the IRS to confirm the exemption is still valid. A nonprofit organization that claims exemption under a parent's exemption must provide a copy of the parent organization's IRS group exemption ruling letter and a letter from the parent organization that states the applicant nonprofit organization is a subordinate covered by the parent organization's group exemption.

  (3) The comptroller may require an organization to furnish additional information to further clarify the organization's overall purpose and activities to establish the claimed exemption. For example, the comptroller may request a written statement that details the nature of the activities conducted, or to be conducted, financial information, and documentation that shows all services the organization performs.

  (4) After a review of the material, the comptroller will inform an organization in writing if it qualifies for exemption.

  (5) The comptroller or an authorized representative of the comptroller may audit the records of an organization at any time during regular business hours to verify the validity of the organization's exempt status.

(f) Revocations, withdrawals, or loss of exemptions.

  (1) Except as provided in paragraph (2) of this subsection, if at any time the comptroller has reason to believe that an exempt organization no longer qualifies for exemption, a comptroller's representative will notify the organization that its exempt status is under review. A comptroller's representative may request additional information that is necessary to ascertain the continued validity of the organization's exempt status. An organization must immediately notify the comptroller in writing of a revocation, withdrawal, or loss of exemption when the organization no longer qualifies for exemption. If the comptroller determines that an organization is no longer entitled to its exemption, then the comptroller will notify the organization. The date of the notification letter is the effective date of the revocation. All subsequent purchases by the organization are subject to tax.

  (2) For nonprofit organizations that are granted an exemption under Tax Code, §151.310(a)(2), the revocation, withdrawal, or loss of the federal income tax exemption automatically terminates the sales tax exemption, effective on the date on which the IRS serves formal written notice of the revocation on the nonprofit organization or the date on which the IRS notifies the comptroller, whichever is earlier. All subsequent purchases by the organization are subject to tax.

    (A) The effective date of a revocation for a nonprofit organization that was granted an exemption as a recognized subordinate is the date on which the organization ceased to be recognized as a subordinate under the federal group exemption. All subsequent purchases by the organization are subject to tax.

    (B) The organization must notify the comptroller in writing of the revocation, withdrawal, or loss of exemption immediately upon receiving notice from the IRS of such revocation, withdrawal, or loss.

    (C) Under a federal/state exchange agreement, the IRS may notify the comptroller when an organization no longer qualifies for federal exemption.

  (3) An organization that loses its exempt status must immediately notify its suppliers that its purchases are subject to tax. Failure to so notify a supplier is a violation of the sales tax law.

  (4) After revocation, the organization may re-apply for exempt status under other provisions of this section.

(g) Purchases by an exempt organization; refund claims and credits. See §3.287 of this title (relating to Exemption Certificates).

  (1) The purchase, lease, or rental of a taxable item that relates to the purpose of an exempt organization listed in subsection (b)(1), (2), (3), (5), (10), (11) or (12) of this section is exempt from tax when the organization or an authorized agent of the organization pays for the item and provides the vendor with an exemption certificate in the form prescribed by the comptroller.

  (2) The purchase, lease, or rental of a taxable item to an exempt organization listed in subsections (c) and (b)(4), (6), (7), (8), or (9) of this section is exempt from tax when the organization or an authorized agent pays for the taxable item and provides the vendor with an exemption certificate in the form prescribed by the comptroller.

  (3) A purchase voucher issued by any one of the entities identified in subsection (c) of this section is sufficient proof of the entity's exempt status.

  (4) An exemption certificate must be given to a vendor when an authorized agent makes a cash purchase of merchandise for an exempt organization.

  (5) An employee of an exempt organization cannot claim an exemption from tax when the employee purchases taxable items of a personal nature even though the employee receives an allowance or reimbursement from the organization.

  (6) A person who travels on official business for an exempt organization must pay sales tax on taxable purchases whether reimbursed on a per diem basis or reimbursed for actual expenses incurred.

  (7) Bingo equipment as defined by Occupations Code, §2001.002, including machinery or devices used to select or hold letters or numbers, electronic or mechanical cardminding devices, pull-tab dispensers, bingo cards, balls, and other devices commonly used in the direct operation of a bingo game, are exempt from sales and use taxes when purchased, leased, or rented by an organization exempt under IRC, §501(c)(3), (4), (8), (10), or (19), and exclusively used to conduct bingo games authorized under Occupations Code, Chapter 2001. Commonly available component parts of bingo equipment such as batteries, light bulbs, and fuses do not qualify for this exemption.

  (8) Refund claims and credits by organizations exempted under Tax Code, §151.310.

    (A) Qualifying organizations. The following organizations are covered by the provisions of Tax Code, §151.310 and are subject to the provisions of this paragraph:

      (i) organizations created for religious, educational, or charitable purposes;

      (ii) organizations qualifying for an exemption from federal income taxes under IRC, §501(c)(3), (4), (8), (10), or (19);

      (iii) nonprofit organizations engaged exclusively in providing athletic competition among persons under 19 years old;

      (iv) volunteer fire departments; and

      (v) chambers of commerce or convention and tourist promotional agencies representing at least one Texas city or county.

    (B) Exemption effective dates.

      (i) Organizations identified in subparagraph (A) of this paragraph are not considered exempted from sales and use taxes before the earlier of:

        (I) the date the organization applied for exemption with the comptroller as evidenced by the postmark date on the organization's qualifying application for exemption as required under subsection (e) of this section; or

        (II) the date of assessment of the organization's tax liability by the comptroller as a result of an audit.

      (ii) With the exception of entities that qualify for exemption under subsection (c) of this section, organizations' exemption effective dates can be verified by using the comptroller's Texas Tax-Exempt Entity Search located on the agency's Web site.

    (C) Refund claims by organizations with exemption effective dates prior to September 1, 2009. Organizations identified in subparagraph (A) of this paragraph with an exemption effective date prior to September 1, 2009 may request a refund or credit for sales and use taxes paid in error, retroactive to the effective date of the organization's exemption or the four-year statute of limitations, whichever date is more recent.

    (D) Refund claims by organizations with exemption effective dates on or after September 1, 2009. Organizations identified in subparagraph (A) of this paragraph with an exemption effective date on or after September 1, 2009 are not eligible to request a refund or credit for sales or use tax paid between September 1, 2009 and the exemption effective date. If the comptroller has determined the organization with an exemption effective date on or after September 1, 2009, has met the requirements for exemption from the sales tax under Tax Code, §151.310 for a period prior to September 1, 2009, the organization may request a refund or credit for sales and use taxes paid in error on purchases made between the earliest date the comptroller determined the organization met the requirements for the exemption or the four-year statute of limitations, whichever is more recent, and August 31, 2009.

    (E) See §3.325 of this title (relating to Refunds and Payments Under Protest) for more information about how to claim a refund and §3.339 of this title (relating to Statute of Limitations).

(h) Sales by an exempt organization.

  (1) An exempt organization that sells taxable items must obtain a sales tax permit and is responsible for collection and remittance of tax on all sales of taxable items that the organization makes, unless otherwise provided by this subsection or unless such sales are otherwise exempt from the tax. See §3.293 of this title (relating to Food; Food Products; Meals; Food Service), §3.299 of this title (relating to Newspapers, Magazines, Publishers, Exempt Writings), and §3.298 of this title (relating to Amusement Services).

  (2) A religious, educational, charitable, or eleemosynary organization, or an organization exempt under IRC, §501(c)(3), (4), (8), (10), or (19), and each of its bona fide chapters, may have two one-day tax-free sales or auctions each calendar year. During a tax-free sale or auction lasting only one day, the organization is not required to collect sales tax on the sales price of taxable items sold for $5,000 or less. Additionally, a taxable item may be sold tax-free during a one-day tax-free sale or auction regardless of price if the item is manufactured by the organization or is donated to the organization and is not sold to the donor.

    (A) One day is a consecutive 24-hour period. If a designated tax-free sale or auction exceeds a consecutive 24-hour period, the organization or chapter may not hold another tax-free sale or auction during that calendar year. An organization or chapter may hold the two tax-free sales or auctions consecutively, but the two tax-free sales or auctions by that organization or chapter cannot exceed a maximum of 48 consecutive hours in a calendar year.

    (B) The organization may employ an auctioneer to conduct the sale or auction and pay the auctioneer a reasonable fee not to exceed 20% of the gross receipts.

    (C) If two or more exempt organizations or chapters jointly hold a tax-free sale or auction, each is considered to have held a tax-free sale or auction during that calendar year. Each exempt organization that participates in a joint tax-free sale or auction may hold one additional tax-free sale or auction during that calendar year.

  (3) Fundraisers. Exempt entities engaged in fundraising activities in conjunction with for-profit entities are not the sellers of any taxable items and do not need to be permitted to collect and remit tax on such sales. See §3.286 of this title (relating to Seller's and Purchaser's Responsibilities, including Nexus, Permits, Returns and Reporting Periods, Collection and Exemption Rules, and Criminal Penalties).

  (4) Sales by agencies and instrumentalities of the federal government are subject to tax, and the agencies and instrumentalities must collect and remit tax unless the collection of tax is specifically prohibited by federal law. If the collection is prohibited by specific federal law, the purchaser of the taxable item shall be liable for reporting and paying the tax directly to the state.

  (5) Sales of governmental publications, records, or documents.

    (A) When a governmental body is required to furnish a copy of any document under the Open Records Act, the transaction is not considered the sale of a taxable item. Sales tax is not due on any fee charged by the governmental body for furnishing one or more copies, regardless of whether the copies are certified or the fee is established by statute, ordinance, public official, or state agency.

    (B) Sales tax is not due on the fee charged by a governmental body for furnishing a copy or copies of a document not open to public inspection to a person who is authorized to obtain a copy or copies of such document. For example, sales tax is not due on the fee charged by a college for furnishing a student's academic transcript to the student or on the fee charged by the Department of State Health Services for furnishing a person a copy of the person's birth certificate.

    (C) Unless such sales are otherwise exempt, sales tax is due on sales of regular publications, records, or general information by a governmental body, even though such publications, records, or information may be open or available to the public by statute. For example, textbooks sold by a state university and magazine subscriptions sold by a state agency are taxable. See §3.299 of this title.

    (D) Sales tax collected by state agencies must be remitted in accordance with comptroller accounting requirements.

(i) Organizations that do not qualify for exempt status. Examples of organizations that cannot qualify for exempt status include professional groups, certain mutual benefit or social groups, and political, trade, business, bar, or medical associations. However, certain sales by certain organizations may be exempt. For information on exempt sales by senior citizens' organizations, student organizations affiliated with a college or university, or nonprofit animal shelters, see §3.316 of this title (relating to Occasional Sales; Joint Ownership Transfers; Sales by Senior Citizens' Organizations; Sales by University and College Student Organizations; and Sales by Nonprofit Animal Shelters).

(j) Diplomatic tax exemptions.

  (1) Sales tax exemptions provided to foreign diplomatic and consular personnel in the United States are governed by international and federal law as administered by the United States Department of State's Office of Foreign Missions.

  (2) Types of exemption cards.

    (A) Mission tax exemption cards. Mission tax exemption cards can only be used for official purchases by a foreign consulate or embassy. All purchases must be made in the name of the mission and paid for by a mission check or credit card, not by cash or personal check. The person whose name and photo appear on the card is responsible for ensuring the accuracy of the exemption, but does not need to be present when purchases are made in the name of the mission.

    (B) Personal tax exemption cards. Only the person whose photo appears on the front side of the card is permitted to use it to purchase the exempted items that are identified on the card. Personal tax exemption cards are not transferable and may not be used by others.

  (3) Procedures for retailers.

    (A) Diplomatic tax exemption cards must be presented to the seller at the time of sale for the exemption to apply. If the exemption is not claimed at the time of sale, the comptroller will not refund tax paid on an item which qualifies for a diplomatic tax exemption. The card must be signed.

    (B) To document the sale of an item subject to a diplomatic tax exemption, a retailer should retain a copy of the sales invoice or contract that bears the identification number appearing on the diplomatic tax exemption card or should make a photocopy of the front and back of the card.

    (C) Certain diplomatic exemption cards are limited to what and how much may be purchased tax free or may require a minimum purchase before the exemption can be claimed. This information is contained on the diplomatic exemption card itself. Retailers who make sales to persons with cards that require purchases to exceed a certain dollar limit should include only those taxable items that are purchased in the same transaction to determine if the appropriate level has been reached. Purchases made in separate transactions may not be added together to reach minimum exemption levels. Neither type of card identified in paragraph (2) of this subsection can be used to obtain the tax free sale of utilities.

(k) The Alabama-Coushatta, Kickapoo, and Tigua Native American tribes.

  (1) The purchase, lease, or rental of a taxable item to a tribal council or a business owned by a tribal council of these Native American tribes is exempt from sales tax. An exemption certificate or purchase order from the tribal council is sufficient proof of the exempt sale.

  (2) Sales made by a tribal council or a business owned by a tribal council of these Native American tribes within the boundaries of the reservation are exempt from sales tax if:

    (A) the taxable item being sold is made by a member of the tribe; and

    (B) the taxable item is a cultural artifact of the tribe.

  (3) Sales made off the reservation or sales made on the reservation of items that are not cultural artifacts are taxable.

(l) Bordering states and governmental units of states that border Texas.

  (1) The State of Arkansas, State of Louisiana, State of New Mexico, and State of Oklahoma, or a governmental unit of any of those bordering states may qualify for exemption on the purchase, lease, or rental of taxable items, but only to the extent that the bordering state or governmental unit of the bordering state exempts or does not impose a tax on similar sales of items to the State of Texas or a political subdivision of the State of Texas.

  (2) A bordering state or a governmental unit of a bordering state may enter into a reciprocal agreement with the comptroller for the exemption of taxable items purchased, leased, or rented to the State of Texas or a political subdivision of the State of Texas.

  (3) The purchase, lease, or rental of a taxable item to a bordering state or a governmental unit of a bordering state is exempt from sales tax to the extent allowed under the terms of the reciprocal agreement. An exemption certificate from a qualifying bordering state or a governmental unit of a bordering state is sufficient proof of the exempt sale.


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