Proper Jurisdiction for Lawsuits Related to Title

The Texas Constitution provides for a county court in each of the 254 counties of Texas, though all such courts do not exercise judicial functions. In the more populous counties, the county judge may devote his or her full attention to the administration of county government. The Legislature has also created statutory county courts at law in more populous counties to aid the single county court in its judicial functions. The legal jurisdiction of the various county-level-trial courts varies depending on the specific statute that created it. Generally, county courts do not have jurisdiction to determine suits related to determining title to land.

A suit “for the recovery of land” is a suit that determines title. See, e.g., Doggett v. Nitschke, 498 S.W.2d 339, 339 (Tex.1973) (“A county court does not have jurisdiction to try questions of title to land.”); Chambers v. Pruitt, 241 S.W.3d 679, 684 (Tex.App.-Dallas 2007, no pet.) (“District courts generally have exclusive jurisdiction to determine title to real property.”). Suits for the recovery of land include more than simply disputes over the identity of the fee simple owner. See, e.g., Coughran v. Nunez, 133 Tex. 303, 127 S.W.2d 885, 887 (1939) (expressing “no doubt” that easements “constitute an interest in real estate,” a dispute over the existence of which “necessarily involved the trial of title to real estate”); Stewart v. Rockdale State Bank, 124 Tex. 431, 79 S.W.2d 116, 118–19 (1935) (county court does not have jurisdiction to determine a claim of homestead, to correct a deed, or to establish whether a tract of land is community property or separate property); State v. Reece, 374 S.W.2d 686, 688 (Tex.Civ.App.-Houston 1964, no writ) (validity of deed restrictions is question of title). A […]

Requirements regarding Seeking Injunctive Relief on Behalf of the Taxpayer Challenging Texas Comptroller of Public Accounts Assessments

Pursuant to Section 112.101(a) of the Texas Tax Code, a taxpayer may bring an action for a restraining order or injunction that prohibits the assessment or collection of a tax or fee imposed or collected by the Texas Comptroller of Public Accounts under any law, including a local tax collected by the comptroller, or a statutory penalty assessed for the failure to pay the tax. As one of the requirements for seeking injunctive relief, Section 112.108 generally requires that the taxpayer pay or provide a bond for the disputed tax.

In 1994 Texas Supreme Court ruled the statute requiring prepayment before seeking relief promulgated by Section 112.108 was unconstitutional. “At the same time, the State has not, however, shown that the complete prohibition of prepayment declaratory relief contained in section 112.108 reasonably serves any governmental interest, let alone one that would override right to open courts.” R Commc’ns, Inc. v. Sharp, 875 S.W.2d 314, 317 (Tex. 1994). As a result of the Supreme Court’s ruling in R Commc’ns, the Legislature modified Section 112.108. However, the modified version of Section 112.108 has also been interpreted to be unconstitutional:
After the amendment became effective, this Court was asked to determine the constitutionality of the modified provision. Rylander v. Bandag Licensing Corp., 18 S.W.3d 296 (Tex.App.-Austin 2000, pet. denied). In Bandag, the trial court declared unconstitutional the amended version of section 112.108. Id. at 303. When considering the issue on appeal, we explained that the “indigency provision” is “irrelevant to the issue of whether that section constitutes an unreasonable financial barrier to access to the courts” and upheld the trial court’s determination that the amended version was unconstitutional. Id. at 304; see also Central Appraisal Dist. v. […]

Challenging Texas Comptroller of Public Accounts Decisions

Often, business clients approach us inquiring about challenging final Texas sales tax rulings in Texas courts. In Texas, taxpayers that challenge decisions reached by the Comptroller of Public Accounts, the agency overseeing the collection and enforcement of Texas sales and use taxes, do so through a proceeding at the State Office of Administrative Hearings (SOAH). SOAH is an administrative court that handles matters for various Texas government agencies, including the Texas Comptroller of Public Accounts.

Challenges raised with SOAH generally allow for a hearing to take place, where an Administrative Law Judge (ALJ) reviews the claims of the taxpayer and the state agency at a hearing (which can be held in person or through written submission). If a taxpayer disagrees with the ruling reached by the ALJ, the taxpayer can request a rehearing. Once the process is concluded with SOAH, the Comptroller will reach a final conclusion and usually render some sort of assessment against the taxpayer.

At this point, the taxpayer may be able to challenge final Comptroller decisions in state court. Pursuant to the Texas Tax Code, taxpayers maybe able to file a refund or protest suit in Travis County District Court, and even request injunctive relief from the court to stop the Comptroller’s office from pursuing the tax amount. Often, pursuing remedies in state court and challenging Comptroller decisions require the taxpayer to pay the underlying amount and then pursue the action.

Challenging state agency decisions in state court is a complicated process, and you should proceed only after discussing it thoroughly with an attorney familiar with this process. At Bajaria Law, we handle sales tax related matters and assist with various sales tax-related legal issues.

House Bill 11 (HB 11) and Sales and Use Tax Audits

Article Submitted to NTBA by Favad Bajaria

Passed during the 80th Texas Legislative Session in 2007, House Bill 11 dramatically increased the Comptroller’s ability to identify, audit and, when appropriate, prosecute retailers who are collecting sales tax but not remitting the proper amount to the state.  HB 11 amended the Alcoholic Beverage Code and the Tax Code to require distributors and wholesalers who make sales of ale, beer, wine, cigarettes, cigars and tobacco products to Texas retailers to report those sales monthly to the Comptroller’s office. Those distributors and wholesalers are also required now to report that data electronically, unless inability to do so is shown.

HB 11 data, which has now been collected since January 2008, allows the Comptroller to compare the purchases that retailers have made of these products with the sales that retailers are required to report. Because both sets of data are largely received electronically, discrepancies can be more easily and rapidly identified. Rapid identification is essential so that the Comptroller auditors can begin their work to mitigate and recoup the revenue loss to the state. Since fiscal year 2009, the Comptroller’s office has identified more than $523 million due to the state.

In some cases, audit documentation may suggest that the taxpayer had criminal intent to evade taxes. If so, the case will be reviewed and evaluated by the Criminal Investigations Division for the possible filing of criminal charges.

A second HB 11, passed by the 2011 Legislature and effective as of Sept. 1, 2011, amended Chapter 151 of the Tax Code by requiring electronic reporting for all wholesale sales of alcoholic beverages. Holders of brewer’s permits, manufacturer’s licenses and package stores that hold a local distributor’s permit all must now file monthly […]

Small Business Requirements for Obamacare on October 1, 2013

The health insurance marketplaces created by the Affordable Care Act (commonly known as Obamacare) will open on October 1, 2013.  Most small-business employers—those with 50 or fewer full-time employees—are not required to offer health insurance coverage under the Affordable Care Act.  Additionally, businesses with more than 50 full-time employees have gotten a reprieve from penalties if they don’t offer insurance for at least one-year. However, all companies, regardless of size, are required to notify their employees about the Obamacare health insurance marketplace.  The state and federal insurance exchanges are websites on which individuals and small businesses can shop for health plans.

Bottom line, at this time, as an employer, all you have to do is provide all of your employees with notice of the marketplace.  Although it’s not clear how the requirement will be enforced, as a recent Department of Labor notice suggests that employers will not be fined for not providing the notice (see a reference to the notice here).

The U.S. Department of Labor has posted information about the notification requirement on its website and has provided model notices that can be used both by employers who offer insurance (PDF) and by those who do not offer insurance (PDF).  Potentially, employers can draft a basic letter to employees and include the relevant notices provided by the Department of Labor.

The one- to three-page model notices can be downloaded, filled out, and printed, either for distribution in the office or for mailing to employees’ homes.  Employees who come on board after October 1, 2013, must get the notice within 14 days of their start date with the company. Although there is no requirement to prove that employees received notice, it may be a good idea to have the employees sign […]

Successor Liability Issues When Acquiring a New Business

An important due diligence practice point for individuals and companies purchasing businesses in Texas, including assets, goodwill, or actual interest in the company is successor liability for state sales taxes.  Almost all states have successor liability statutes that impose certain pre-closing state tax liabilities on the buyer of a business.  The Texas version of this concept is found in Section 111.020 of the Texas Tax Code and reads as follows:

(a) If a person who is liable for the payment of an amount under this title sells the business or the stock of goods of the business or quits the business, the successor to the seller or the seller’s assignee shall withhold an amount of the purchase price sufficient to pay the amount due until the seller provides a receipt from the comptroller showing that the amount has been paid or a certificate stating that no amount is due.

(b) The purchaser of a business or stock of goods who fails to withhold an amount of the purchase price as required by this section is liable for the amount required to be withheld to the extent of the value of the purchase price. . . .

The impact of Section 111.020 is that if a buyer acquires a “business” it can become liable to the State of Texas for up to the full amount it pays for the business (i.e., for a total outlay of double the purchase price, once to the seller and once to the State). The assumption of debt is counted in the total price paid as well as the fair market value of any assets paid in-kind.

The determination of what constitutes a “business” is very fact specific, but the Comptroller’s Rule 3.7 (d) […]

Overview of Enforceability of Non Compete Agreements in Texas

Businesses of all sizes are looking increasingly to non-competition agreements as a means to retaining key employees, protecting confidential information and preserving valuable customer accounts. The concept is simple:  an employee agrees that, for a specified period of time after leaving the employer, he or she will not compete with or work for a competitor of the employer.

A typical agreement might prohibit John Smith from competing directly or indirectly with his employer, ABC Corp., or working for a competitor of ABC Corp., within Texas, for a 24-month period following the termination of Mr. Smith’s employment with ABC Corp.

Why Have an Agreement?

At first glance, such agreements may seem to make a lot of sense. The sudden loss of a key salesperson, for example, often creates a triple whammy.  First, a seasoned member of the sales team is gone, along with her in-depth knowledge of your business, your products, your pricing practices and your customers.  Second, the good will and positive customer relationships that the employee has developed over time are now gone.  Third, if the salesperson has been recruited by a competitor, a significant risk exists that she will be converting your accounts to your competitor’s while you spend considerable time recruiting and breaking in a replacement.  Losing an experienced member of management or R&D to a competitor can be equally devastating.

The existence of a solid non-competition agreement can often serve to deter employees from seriously exploring a jump to a competitor. An employee who thinks that a court may keep him from successfully landing with a new employer, may not risk the leap.  After all, most employees will want to avoid costly litigation against their former employer.  At the same time, the presence of […]

General Discussion of Entity Formation Options

Limit Your Liability

Without a legal entity, you are operating as a proprietorship, the oldest form of business. A proprietorship can only have one owner, although husband and wife are considered one for this purpose.

If you upset someone, fail to allegedly pay a creditor or vendor, they can come after you personally—which is not a good thing. Although, there are circumstances where creditors can pierce the corporate veil, but this usually requires proof the entity is undercapitalized, underinsured, or otherwise not a commercially reasonable separate entity. With or without an entity, consider buying insurance, including general liability, products liability, employee fidelity, workers’ compensation, unemployment insurance, etc.—it’s all very, very difficult if not impossible.

In other words, to conduct business prudently and responsibly, you need a legal entity.

Partnership Formalities

A partnership can be formed with a handshake, but write it down, as oral agreements often foment serious disputes. With a general partnership each partner has personal liability. A limited partnership has one or more general partners, and one or more limited partners. Limited partners might lose their investment, but their other assets are not at risk. You can even get around the general partner’s unlimited liability by having a corporation (or another entity like an limited liability company) serve as the general partner. To get the benefits of limited partnership treatment, you must file a certificate and pay relevant state fees. Furthermore, if limited partners make day-to-day business decisions, they can wind up with general partner liability. So you may want to consider an a limited liability company (see more below for limited liability companies).

LLCs Are Very Flexible

By far, the most flexible business entity is a limited liability company, commonly referred to as an LLC. Adapted originally from […]

Recommendations for Retail Businesses Facing a Sales Tax Audit by the Texas Comptroller of Public Accounts

Recently, more audits of retail businesses have taken place throughout Texas.  One of the most common problems small retain businesses that are going through an audit face, is lack of proper record keeping.  Although most  retail businesses should have proper documentation on its daily sales, some do not have adequate accounting source documents and procedures to withstand a Texas Comptroller audit of its sales and use taxes. Bajaria Law routinely assists clients with audits for businesses in the Houston, Dallas-Fort Worth, and Austin metropolitan areas, including suburbs such as Plano, Sugarland, Katy, Stafford, Richardson, Arlington, Irving, and Garland.

To prepare and come out ahead of an audit, a retail business should at least have the following procedures and accounting tools in place:

1.  Daily, weekly and monthly cash sales journal;
2.  Cash register use of z tapes and backup of daily z tapes either electronically or on paper;
3.  Detailed journal of purchases of beer, cigarettes, and other purchases from ite vendors;
4.  Matching bank deposit slips to daily sales journal;
5.  Correct monthly, quarterly and yearly reporting to Texas Comptroller;
6.  Proper accounting and remittance of sales taxes collected and remitted to the Texas Comptroller;
7.  Reconciled ledgers; and
8.  Proper financial reporting in place, including profit & loss statements, balance sheets and statement of
cash flow.

If you are facing a Texas Comptroller Audit of sales and use tax, or local tax, contact an experienced Texas Comptroller sales and use tax attorney at Bajaria Law Firm, PC.

Please visit the following links for additional information:

Texas Comptroller of Public Accounts

Bajaria Law Firm, PC Services