|(a) Definitions. The following words and terms, when
used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1) Clothing or footwear--An article of apparel that
the article manufacturer designs for wear on or about the human body.
Except as provided under paragraph (3) of this subsection, for the
purposes of this section, the term does not include accessories, such
as jewelry, handbags, purses, briefcases, luggage, wallets, watches,
and similar items that are carried on or about the human body, without
regard to whether the item is worn on the body in a manner that is
characteristic of clothing.
(2) Eligible item--For the purposes of this section,
an article of clothing or footwear, a school backpack, or school supplies
that are eligible for the sales tax exemption established under Tax
Code, §151.326 and §151.327.
(3) School backpack--A pack with straps that one wears
on the back, including a backpack with wheels (provided it may also
be worn on the back like a traditional backpack) or a messenger bag,
that is purchased for use by a student in a public or private elementary
or secondary school. The term does not include an item that is commonly
considered luggage, a briefcase, an athletic bag, a duffle bag, a
gym bag, a computer bag, or a framed backpack.
(4) School supply--The term "school supply" has the
meaning assigned by the Streamlined Sales and Use Tax Agreement adopted
November 12, 2002, including all amendments made to the Agreement
on or before December 14, 2006. The items set out in the following
all-inclusive list are school supplies for the purpose of this exemption:
binders, book bags, calculators, cellophane tape, blackboard chalk,
compasses, composition books, crayons, erasers, expandable folders,
pocket folders, plastic folders and manila folders, glue, paste, paste
sticks, highlighters, index cards, index card boxes, legal pads, lunch
boxes, markers, notebooks, loose leaf ruled notebook paper, copy paper,
graph paper, tracing paper, manila paper, colored paper, poster board,
and construction paper, pencil boxes and other school supply boxes,
pencil sharpeners, pencils, pens, protractors, rulers, scissors, and
writing tablets. School supply items not on this list, for example,
computers and textbooks, are not eligible for the exemption.
(b) Exempt sales.
(1) Sales or use tax is not due on the sale of an eligible
(A) the sales price of the eligible item is less than
(B) under Tax Code, §151.326, the sale takes place
during the period that begins at 12:01 a.m. on the Friday before the
eighth day preceding the earliest district-wide date on which any
school district, other than a district operating a year-round system,
may begin instruction for the school year under Education Code, §25.0811(a),
and ends at 12:00 a.m. (midnight) of the following Sunday.
(i) The earliest district-wide school starting date
under Education Code, §25.0811(a)(2), is the fourth Monday in
(ii) Using 2012 as an example, the fourth Monday in
August falls on August 27. The eighth day preceding August 27 is Sunday,
August 19. The Friday before August 19 is August 17. The sales tax
holiday will begin at 12:01 a.m. on Friday, August 17 and end at 12:00
a.m. (midnight) Sunday, August 19.
(iii) In 2013, the sales tax holiday will begin at
12:01 a.m. on Friday, August 16 and end at 12:00 a.m. (midnight) Sunday,
(iv) In 2014, the sales tax holiday will begin at 12:01
a.m. on Friday, August 15 and end at 12:00 a.m. (midnight) Sunday,
(2) The exemption applies to each eligible item that
sells for less than $100, regardless of how many items are sold on
the same invoice to a customer. For example, if a customer purchases
two shirts for $80 each, then both items qualify for the exemption,
even though the customer's total purchase price ($160) exceeds $99.99.
(3) The exemption does not apply to the first $99.99
of an otherwise eligible item that sells for more than $99.99. For
example, if a customer purchases a pair of pants that costs $110,
then sales tax is due on the entire $110.
(c) Taxable sales. The exemption under this section
does not apply to:
(1) any special clothing or footwear that the manufacturer
primarily designed for athletic activity or protective use and that
is not normally worn except when used for the athletic activity or
protective use for which the manufacturer designed the article. For
example, golf cleats and football pads are primarily designed for
athletic activity or protective use and are not normally worn except
when used for those purposes; therefore, they do not qualify for the
exemption. However, tennis shoes, jogging suits, and swimsuits are
commonly worn for purposes other than athletic activity and thus qualify
for the exemption;
(2) accessories, such as jewelry, handbags, purses,
briefcases, luggage, athletic bags, duffle bags, gym bags, computer
bags, framed backpacks, umbrellas, wallets, watches, and similar items
that are carried on or about the human body, without regard to whether
the item is worn on the body in a manner that is characteristic of
(3) school supplies and backpacks that are not purchased
for use by elementary or secondary school students;
(4) school supplies not listed in subsection (a)(4)
of this section;
(5) the rental of clothing or footwear. For example,
the exemption under this section does not apply to the rental of formal
wear, costumes, uniforms, diapers, or bowling shoes;
(6) taxable services that are performed on clothing
or footwear, such as repair, remodeling, or maintenance services,
and cleaning or laundry services. For example, sales tax is due on
alterations to clothing, even though the alterations may be sold or
invoiced, and the customer pays such invoice, at the same time as
the clothing is being altered. If a customer purchases a pair of pants
for $90 and pays $15 to have the pants cuffed, then the $90 charge
for the pants is exempt, but tax is due on the $15 alterations charge;
(7) purchases of items that are used to make or repair
eligible items, including fabric, thread, yarn, buttons, snaps, hooks,
(d) Articles normally sold as a unit. Articles that
are normally sold as a unit must continue to be sold in that manner;
they cannot be priced separately and sold as individual items in order
to obtain the exemption. For example, if a pair of shoes sells for
$150, then the pair cannot be split in order to sell each shoe for
$75 to qualify for the exemption. If a suit is normally priced at
$225 on a single price tag, the suit cannot be split into separate
articles so that any of the components may be sold for less than $100
in order to qualify for the exemption. However, components that are
normally priced as separate articles may continue to be sold as separate
articles and qualify for the exemption if the price of an article
is less than $100.
(e) Sales of pre-packaged combinations containing both
exempt and taxable items.
(1) When an eligible item is sold together with taxable
merchandise in a pre-packaged combination or single unit and the predominant
cost of the set or unit is taxable, then the full price is subject
to sales tax unless the price of the eligible item is separately stated.
For example, if a boxed gift set that consists of a French-cuff dress
shirt, cufflinks, and a tie tack is sold for a single price of $95,
the full price of the boxed gift set is taxable if the cufflinks and
tie tack are the predominant cost and the price of the shirt and tie
are not separately stated.
(2) When an eligible item is sold in a pre-packaged
combination that also contains taxable merchandise as a free gift
and no additional charge is made for the gift, the eligible item may
qualify for the exemption under this section. For example, a boxed
set may contain a tie and a free tie tack. If the price of the set
is the same as the price of the tie sold separately, the item that
is being sold is the tie, which is exempt from tax if the tie is sold
for less than $100 during the exemption period. Note: When a retailer
gives an item away free of charge, the retailer owes sales or use
tax on the purchase price that the retailer paid for the item.
(f) Discounts and coupons.
(1) A retailer may offer discounts to reduce the sales
price of an item. If the discount reduces the sales price of an item
to $99.99 or less, the item may qualify for the exemption under this
section. For example, a customer buys a $150 dress and a $100 blouse
from a retailer who offers a 10% discount. After application of the
10% discount, the final sales price of the dress is $135, and the
blouse is $90. The dress is taxable (its price is over $99.99), and
the blouse is exempt (its price is less than $100.00).
(2) When retailers accept coupons as a part of the
sales price of any taxable item, the value of the coupon is excludable
from the tax as a cash discount, regardless of whether the retailer
is reimbursed for the amount that the coupon represents. Therefore,
a coupon can be used to reduce the sales price of an item to $99.99
or less in order to qualify for the exemption under this section.
For example, if a customer purchases a pair of shoes priced at $110
with a coupon worth $20, the final sales price of the shoes is $90,
and the shoes qualify for the exemption.
(g) Buy one, get one free or for a reduced price. The
total price of items that are advertised as "buy one, get one free,"
or "buy one, get one for a reduced price," cannot be averaged in order
for both items to qualify for the exemption under this section. The
following examples illustrate how such sales should be handled.
(1) A retailer advertises pants as "buy one, get one
free." The first pair of pants is priced at $120; the second pair
of pants is free. Tax is due on $120. Having advertised that the second
pair is free, the store cannot register the charge for each pair of
pants at $60 in order for the items to qualify for the exemption.
However, if the retailer advertises and sells the pants for 50% off,
and sells each pair of $120 pants for $60, each pair of pants qualifies
for the exemption. Note: When a retailer gives an item away free of
charge, the retailer owes sales or use tax on the purchase price that
the retailer paid for the item.
(2) A retailer advertises shoes as "buy one pair at
the regular price, get a second pair for half price." The first pair
of shoes is sold for $100; the second pair is sold for $50 (half price).
Tax is due on the $100 shoes, but not on the $50 shoes. Having advertised
that the second pair is half price, the store cannot ring up each
pair of shoes for $75 in order for the items to qualify for the exemption
under this section. However, if the retailer advertises the shoes
for 25% off, and thereby sells each pair of $100 shoes for $75, then
each pair of shoes qualifies for the exemption.
(h) Rebates. Rebates occur after the sale and do not
affect the sales price of an item purchased. For example, a customer
purchases a sweater for $110 and receives a $12 rebate from the manufacturer.
The retailer must collect tax on the $110 sales price of the sweater.
(i) Layaway sales. A layaway sale is a transaction
in which merchandise is set aside for future delivery to a customer
who makes a deposit, agrees to pay the balance of the purchase price
over a period of time, and, at the end of the payment period, receives
the merchandise. An order is accepted for layaway by the retailer
when the retailer removes the goods from normal inventory or clearly
identifies the items as sold to the customer. The sale of an eligible
item under a layaway plan qualifies for exemption when either:
(1) final payment on a layaway order is made by, and
the merchandise is given to, the customer during the exemption period;
(2) the customer selects the eligible item and the
retailer accepts the order for the item during the exemption period,
for immediate delivery upon full payment, even if delivery is made
after the exemption period.
(j) Rain checks. Eligible items that customers purchase
during the exemption period with use of a rain check will qualify
for the exemption regardless of when the rain check was issued. However,
issuance of a rain check during the exemption period will not qualify
an eligible item for the exemption if the item is actually purchased
after the exemption period.
(1) If a customer purchases an eligible item during
the exemption period, but later exchanges the item for an item of
a different size, different color, or other feature, no additional
tax is due even if the exchange is made after the exemption period.
(2) If a customer purchases an eligible item during
the exemption period, but after the exemption period has ended, the
customer returns the item and receives credit on the purchase of a
different item, the appropriate sales tax is due on the sale of the
newly purchased item.
(3) If a customer purchases an eligible item before
the exemption period, but during the exemption period the customer
returns the item and receives credit on the purchase of a different
eligible item, no sales tax is due on the sale of the new item if
the new item is purchased during the exemption period.
(A) A customer purchases a $35 shirt during the exemption
period. After the exemption period, the customer exchanges the shirt
for the same shirt in a different size. Tax is not due on the $35
price of the shirt.