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September 11, 2020 the Honorable Dustin Burrows Chairman, House Ways & Means Committee Texas Capital Extension Rm E2.722

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September 11, 2020 the Honorable Dustin Burrows Chairman, House Ways & Means Committee Texas Capital Extension Rm E2.722 Mayor Councilmembers City Manager Craig Morgan Tammy Young Laurie Hadley Rene Flores Matthew Baker Mayor Pro- Will Peckham City Attorney Tem Hilda Montgomery Stephan L. Sheets Writ Baese September 11, 2020 The Honorable Dustin Burrows Chairman, House Ways & Means Committee Texas Capital Extension Rm E2.722 Austin, Texas RE: Comments Regarding Interim Charge #3. Study the role of the local option sales and use tax, including: an analysis of the available uses for those taxes, specifically economic development agreements; the statewide distribution of local tax rates; the proportion of the local government budget supported by sales and use taxes; the application of consistent sales sourcing rules; and the impact of shifting from origin to destination sourcing. Chairman Burrows and Members of the Ways & Means Committee: In support of origin-based sales tax sourcing in Texas In a world of uncertainty, one thing is certain; sales tax fuels the State of Texas. Since the creation of the Limited Sales and Use Tax by the Fifty-seventh Texas Legislature in 1961, Texas has followed what is known as an origin-based taxing philosophy. Origin-based sales taxes mean the tax rate and allocation are based on the place of business of the seller. This philosophy has served Texas well for nearly sixty years, and one could argue played a direct role in “the Texas miracle.” Why origin-based taxation? Prime reasons for origin-based sales taxes are business simplicity and offsetting the impact of the business enterprise on the community in which it resides. If Texas moved to destination-based sourcing, all businesses, including small businesses, selling sales taxable goods and services in Texas would have to track upwards of 1600 different local taxing jurisdictions. With origin-based sourcing, businesses just need to know the rate of the jurisdiction of the place of business that consummates the sale. Of the 777,787 sales tax permits listed on the Texas Comptroller of Public Accounts website, 405,122 have only one “outlet.” This means those businesses have a single place of business. As such, the Tax Code makes it very clear that those businesses need not worry about sourcing sales to any other location but home base. For all those entrepreneurs looking to start the next big thing, or earn some extra cash, they can easily do so due to the simplicity of the Tax Code. Texas has made it a point to encourage economic growth by keeping things straightforward, logical, and Texan. This said, origin-based sourcing has not been blindly followed. The legislature has considered sourcing changes in some form seven out of the last ten sessions. Each time the State has opted to “dance with the one that brought us,” reaffirming Texas as an origination state, ultimately preserving our miraculous economic model. In 1980, an interim report of the House Committee on Ways and Means was submitted to Speaker Clayton. An item of discussion was the merits of upholding an origin-based taxing philosophy in Texas or moving to destination-based taxation on goods and services. The report calls out the benefits and simplicity of origin sourcing for a business owner, “by defining ‘place of business’ to be a retail outlet and consummating the sale at that location, it is easier for the retailer to determine if local tax is due and which city gets credit for the sales. The retailer does not have to worry about the location of the customer or property within the state, only where he is located. The new sales tax short form recently introduced by the Comptroller’s Office is geared toward taxpayers with a single outlet. Since all sales are consummated at that single outlet, city tax reporting is easy.” Historically, simplicity for private enterprise has reigned supreme because businesses with reduced administrative burdens can focus on providing goods and services to their customers, both in Texas and around the globe. This simplicity led Michael Dell to choose to locate the global headquarters of Dell Technologies in Round Rock in the early 1990s. Dell could have gone to Tennessee. Dell could have gone to Ireland. They chose Texas. Over the past 25 years, Dell’s choice has miraculously generated $1.5 billion of sales tax revenues directly to the State of Texas. It is important to note, Texas would not have received even a penny of this revenue prior to the Wayfair decision. Round Rock rebated a portion of the local option tax through a 380 economic development incentive agreement, and the whole state benefited from Round Rock’s action. Furthermore, economic analysis shows Dell currently generates $10 billion annually to the Texas economy. Its Round Rock campus is home to 12,000 employees and over 1 million square feet of Class-A office space – all supported by city infrastructure and services funded by local option sales tax. Everyone in the State of Texas should be proud Dell chose to remain because we all benefited. Current arguments for destination-based taxation are likely to say when a customer purchases online they are expecting their local option tax dollars to be remitted to the community in which they live. While this expectation is understandable, it is not the structure under which the State has thrived since 1961. Local jurisdictions have had a strong motivation to create positive business environments because local businesses create additional sales tax revenue, which funds necessary services, and, in the best cases, strongly offset the cost on residents for municipal services. Round Rock’s financial model is and has been simple. Strong local sales tax revenue means better services and lower property taxes. This makes a more affordable community where people want to live, which creates a strong workforce. This workforce, coupled with an appropriate regulatory environment, is attractive to businesses, which directly feed the next round of the economic cycle. Round Rock has not been alone in following this model - communities have pulled themselves up by their bootstraps and played a role in the collective “Texas Miracle.” As we alluded to, the State of Texas historically desired businesses selling goods and services online to physically locate in Texas, otherwise the State had no mechanism to collect the 6.25% State sales tax. The 2018 Supreme Court decision in South Dakota v. Wayfair, Inc. (Wayfair) has created somewhat of a conundrum for economic development in Texas. States can now require remote sellers to collect tax without having a physical presence in the state. Today, if a remote business sells more than $500k of taxable goods and services into Texas, the State collects its 6.25% cut. Does this mean the state of Texas will no longer care if a business selling taxable goods and services are in Texas or not? We hope not, but there certainly is no longer a sales and use tax revenue argument to be made on behalf of the State. With origin-sourcing for intrastate sales, local governments indeed remain motivated for places of business to locate in their communities. To reiterate, time and again, businesses have sought to retain origin-based sourcing in Texas for operational simplicity. The tax code clearly states if you have one place of business in Texas, your sales are consummated and sales tax is collected in that one jurisdiction. This encourages the creation of small businesses and keeps bookkeeping simple. It also allows a business owner to see the direct, positive impact of their sales on the community in which they are located. The business endeavor is helping advance quality of life for all of those in a community, which, in turn, makes the community more accepting of the other impacts of the business enterprise. In essence, many businesses generate more benefits to the general public than they consume in public resources. This has led the average Texan to be welcoming of business creation in Texas over the years because it leads to positive impacts for the average citizen and the state. Additionally, business owners certainly are aware of the sourcing of their sales under the current philosophy and application of the rules. Collecting and remitting local sales and use taxes could easily be avoided by a business creating their sole place of business in Texas in one of the many areas with 0% local option sales taxes. Businesses generally need municipal services of some sort to provide goods and services, a necessity that outweighs the dearth of taxing advantage. Suppose local taxing entities no longer had the ability to receive origin-based revenue from the sales of businesses operating in their jurisdiction. It is not a leap to see jurisdictions becoming averse to businesses locating in their communities, or seeking alternative taxes and fees to offset the impact of the business on the community. This is certainly not a future we are excited to see come to fruition. Round Rock understands the marketplace and economy are ever-changing and there will always be those that seek to game the spirit of the taxation philosophy for undue benefit. An entity with extremely limited business impact that strategically structures itself to willfully siphon local sales tax revenues from other Texas communities should be quickly curtailed. While those occurrences are few and far between, we are of the position they do exist and would pose an objective test be administered to determine a business’ qualification to source sales in a specific jurisdiction. Truly, some of what we have posed is anecdotal and not backed by stringent economic analysis. That said, it is wise to take a great deal of pause when looking to upend a decades-long, fruitful tax policy. While the State under origin-based and destination-based taxation will now always get its 6.25%, the unintended consequences of disempowering cities and putting the people of Texas at odds with businesses locating in their communities, as we have seen around the country, should be weighed heavily.
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