Texas Administrative Code › Title 34 - PUBLIC FINANCE › Part 1 - COMPTROLLER OF PUBLIC ACCOUNTS › Chapter 3 - TAX ADMINISTRATION › Subchapter O - STATE AND LOCAL SALES AND USE TAXES › Section 3.356 - Real Property Service

Current through Reg. 49, No. 28; July 12, 2024
(a) Definitions.
				  The following words and terms, when used in this section, shall have the
				  following meanings, unless the context clearly indicates otherwise.
(1) Employee--A person providing services for
				  another for consideration where the employer has the right to control and
				  direct the employee in the material details of how the work is to be performed,
				  both under the contract of employment and in fact. The term also includes
				  personnel provided by a temporary help service, as defined in paragraph (10) of
				  this subsection.
(2) Employer--In
				  determining which of several persons is the employer of an individual, factors
				  which will be considered include:
(A) who
				  exercises direct control over the details of how the work is performed by the
				  employee;
(B) who pays the
				  employee's salary;
(C) who
				  withholds applicable federal taxes from the employee's salary;
(D) who provides employment-related benefits
				  such as health insurance, eligibility to participate in a retirement plan, sick
				  leave, vacation, etc., to the employee; and
(E) who has the right to terminate the
				  employment of the individual employee.
(3) Garbage or other solid waste--Waste;
				  refuse; sludge from a waste treatment plant, a water supply treatment plant, or
				  an air pollution control facility; and other discarded material, including
				  solid, liquid, semisolid, or contained gaseous material, resulting from
				  residential, industrial, municipal, commercial, mining, and agricultural
				  operations, and resulting from community and institutional activities. The term
				  does not include any of the following:
(A)
				  solid or dissolved material in domestic sewage; or solid or dissolved material
				  in irrigation return flows; or industrial discharges subject to regulation by
				  permit issued pursuant to the Texas Water Code, Chapter 26;
(B) waste materials which result from
				  activities associated with the exploration, development, or production of oil,
				  gas, geothermal resources, or any other substance or material regulated by the
				  Railroad Commission of Texas pursuant to Natural Resources Code, §
												91.101;
(C) any waste which requires specific
				  licensing under Health and Safety Code, Chapter 401, and the rules adopted by
				  the Texas Board of Health under that law, which for the purposes of this rule
				  shall be referred to as radioactive waste;
(D) hazardous waste, as identified or listed
				  as a hazardous waste by the administrator of the United States Environmental
				  Protection Agency or by other appropriate federal or state agency; or
(E) industrial solid waste, as that term is
				  defined in Health and Safety Code, Chapter 361, with the exception of
				  industrial solid waste which meets the definition of garbage or municipal solid
				  waste.
(4)
				  Landscaping--The activity of arranging and modifying areas of land, natural
				  scenery and other areas, such as indoor or outdoor patios, for aesthetic
				  effect, considering the use to which the land is to be put. The term includes
				  adding, removing, or arranging natural forms, features, and plantings,
				  including vegetation, and other features to fulfill aesthetic requirements. It
				  includes the application of soil, soil additives, and amendments to prepare or
				  maintain the planting area. Some examples are garden planting or maintenance,
				  arborist services, ornamental bush or shrub planting, tree planting or removal,
				  tree surgery, pruning or spraying, and lawn sodding. The term does not include
				  the addition of sprinkler systems, retaining walls, ponds, pools, or fences, or
				  other construction activities or services provided by landscape designers or
				  landscape architects such as consultation, research, preparation of general or
				  specific design or detail plans, studies, specifications, or supervision, or
				  any other professional services or functions within the definition of the
				  practice of engineering or architecture. Landscaping services performed by
				  landscape designers or landscape architects are taxable.
(5) Lawn and yard maintenance--Mowing,
				  trimming, fertilizing, watering and any other treatment or service which may be
				  performed on private or commercial yards or lawns. It also includes maintenance
				  of trees and plants whether inside or outside a building. The term does not
				  include clearing land for buildings, power line rights-of-way, pipeline
				  rights-of-way, or maintenance on land belonging to a governmental entity when
				  the service is required by the governmental entity.
(6) Property management company--A person
				  who, for consideration, operates and manages all the activities at a property
				  held by the owner for purposes of rental, such as: an office building, mall or
				  other retail or office complex, an apartment complex, duplex, or home. In the
				  context of this rule, the responsibilities of a property management company
				  must include, but are not limited to, securing tenants, hiring and supervising
				  employees for operation or upkeep of the property, receiving and applying
				  revenues, and incurring and paying expenses derived from the operation of the
				  property as directed by the owner. The term does not include a person
				  performing taxable services at a manufacturing facility or at a property held
				  by the owner for purposes other than rental.
(7) Residential or nonresidential building or
				  grounds cleaning, janitorial, or custodial services--The activities of keeping
				  the inside and outside premises of a building clean, orderly, and functional,
				  including performing minor adjustments, maintenance, or repairs. Examples
				  include, but are not limited to: window washing; floor, wall, and ceiling
				  cleaning; collection of waste on the premises, whether from inside a building
				  or on the grounds; chimney or duct cleaning; lighting maintenance, such as bulb
				  and fuse replacement; the cleaning, disinfecting, and restocking of restrooms
				  or lounge areas; cleaning or washing sidewalks, parking garages, or parking
				  lots; and pool cleaning and maintenance. The term does not include activities
				  such as painting; wallpapering; or performing significant repairs; nor domestic
				  services such as those of a baby-sitter, maid or cook employed by a private
				  household to provide domestic services for the benefit of the
				  household.
(8) Structural pest
				  control services--Activities performed for the purpose of identifying,
				  preventing, controlling, or eliminating, by use of chemical or mechanical
				  means, infestation of any of the following:
(A) insects, spiders, mites, ticks, ants,
				  bees, and other related pests, wood infesting organisms, rodents, weeds,
				  nuisance birds, or any other obnoxious or undesirable animals which may infest
				  households, railroad cars, ships, docks, trucks, airplanes or other structures
				  or their contents;
(B) pests or
				  diseases of trees, shrubs or other plantings in a park or adjacent to a
				  residence, business establishment, industrial plant, institutional building, or
				  street; and
(C) the term
				  "structural pest control services" includes related activities, such as
				  inspection or evaluation concerning the nature or extent of an infestation;
				  reports; or performance of services to control pest or insect
				  infestation.
(9)
				  Surveying of real property--Activities performed to determine or confirm the
				  boundaries of real property, or to determine or confirm the location of
				  structures or other improvements in relation to the boundaries of the property
				  by the use of relevant elements of law, research, measurement, analysis,
				  computation, mapping and land description. Examples include, but are not
				  limited to, boundary recovery, residential surveying, lot surveying, title
				  surveying, as-built title surveying, and right-of-way surveying. The term does
				  not include activities performed after taxable surveying has been completed to
				  search the surveyed area for items of archaeological or historic
				  significance.
(10) Temporary help
				  service--An individual, company, or corporation covered by Industry Group 7363,
				  Group 736, Major Group 73 of the Standard Industrial Classification Manual,
				  1989, and includes an individual, company, or corporation that supplies
				  personnel on a temporary basis to supplement a customer's existing work force.
				  In the context of this section, such temporary personnel must perform a service
				  that is normally performed by the customer's own employees; the customer must
				  provide all supplies and equipment necessary; and the temporary personnel must
				  be under the direct or general supervision of the customer to whom the help is
				  furnished.