1. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

   1. (1) Complimentary alcoholic beverage--Those alcoholic beverages served without any charge whatsoever to the person served.
   2. (2) Invoice--An instrument issued by the seller of alcoholic beverages to a permittee.
   3. (3) Permittee--A holder of one of the following permits and the agents, servants and employees of such permit holder: a mixed beverage permit, a mixed beverage late hours permit, a daily temporary mixed beverage permit, a private club registration permit, a private club late hours permit, a private club exemption certificate permit, or a caterer's permit.
2. (b) Records. A permittee shall keep any record required by any rule of the commission or by the Alcoholic Beverage Code for a period of two years on his licensed premises unless written permission to keep them elsewhere be granted by the administrator pursuant to §202.13 of the Alcoholic Beverage Code, and shall make any such record available to a representative of the commission upon request within a reasonable time. Provided, however, that after an audit has been made of the records of a permittee by a representative of the commission, the permittee may with the written consent of the administrator or one of his designated representatives remove such records from the licensed premises and store them at an approved location unless prohibited by the Alcoholic Beverage Code.

3. (c) Consumption on premises.

   1. (1) A permittee shall not serve any alcoholic beverages to any person except for consumption on the licensed premises of such permittee.
   2. (2) A permittee shall not permit any person to remove any alcoholic beverage from its licensed premises except as provided by §28.01 and §28.10 of the Alcoholic Beverage Code.

4. (d) Source records.

   1. (1) Source record as used herein means:

      1. (A) a dated customer service check or ticket;
      2. (B) a dated cash register tape, if coded to reflect all required information; or
      3. (C) an equivalent of the above in some other form subject to approval by the administrator.

   2. (2) Each permittee shall record on a source record the following information in a manner in which makes such information clearly evident or by a system of symbols (code) if such symbols and their meaning are printed on the source record or maintained on the licensed premises:

      1. (A) each individual separate serving of an alcoholic beverage and the price charged therefor;
      2. (B) for an alcoholic beverage not served as an individual separate serving, the unit of the serving used, and the price charged therefor;
      3. (C) each separate serving or other unit shall be clearly identified as to the kind of drink (daiquiri, Tom Collins) or class of beverage (beer, wine, whiskey) as the case may be;
      4. (D) the date of the transaction. For this purpose the "date" as of 3 a.m. one day continues until 3 a.m. the next day;
      5. (E) a gratuity which is charged to the customer or person served, which does not exceed 20% of the sales price or service charge, will not be taxable if it is recorded on a service check as an identifiable item and is in due course disbursed to the proper employee or employees who customarily and regularly receive gratuities. Gratuities will not be allowed unless they are accounted for separately in payroll account records, and these records establish that the actual gratuities are disbursed back to the employees responsible for the sale or service; or
      6. (F) complimentary alcoholic beverages shall be recorded on service checks only. A check should be prepared for each individual or party served. The check should be prepared as if it was a normal sale and then clearly marked as being complimentary. The service checks should be grouped daily and filed with the daily summary showing the information on the summary as required by subsection (e)(2) of this section. A serving of an alcoholic beverage shall not be a complimentary alcoholic if it is served under conditions which include, but are not limited to the following: the alcoholic beverage is served in conjunction with food or any other thing sold to the recipient, or if any entertainment or entry fee is charged. Any alcoholic beverage served under the above or similar conditions is subject to the gross receipts tax, computed on the basis of the normal charge for sale or service of such alcoholic beverage by the permittee.
   3. (3) Source records shall be maintained in sequence by date.

5. (e) Daily summary. Each permittee shall prepare a daily summary of the following:

   1. (1) all information required to be recorded on source records, including the sale or service of alcoholic beverages (proper identifiable symbols or codes may be used);
   2. (2) complimentary alcoholic beverages dispensed, showing the number of servings, type of service, kind of drink, and normal selling price.

6. (f) Gross receipts tax liability.

   1. (1) In examining the tax account of any permittee, the commission may compute and determine the amount of gross receipts tax liability upon the basis of reports filed with the commission, but if such reports are found not satisfactory, the computation and determination of the gross receipts tax liability may be based upon any records or information which is available, or is obtained from the permittee or any seller who furnished alcoholic beverages to the permittee.
   2. (2) In examining the tax account of each permittee, if the commission finds that the permittee has failed to maintain or make available the records required by any regulation of the commission or by the Alcoholic Beverage Code, the commission may compute and determine the amount of gross receipts tax liability from any available source or records, and estimates of the tax liability may be made by use of any available record for any period for which the permittee has failed to maintain records or file a report with the commission.
   3. (3) In examining the tax account of any permittee to establish its gross receipts liability, the commission presumes that the disposition of all alcoholic beverages purchased by the permittee is taxable until the contrary is established. The burden of proving the contrary shall be upon the permittee and must be established through authentic records.
   4. (4) In examining the tax account of a permittee to establish its gross receipts tax liability, the commission may examine all books, papers, records, documents, supplies and equipment of the permittee and may also investigate the character and operation of the permittee's business.

7. (g) Concerning alcoholic beverages which are lost through theft or disaster, the permittee shall prepare a written report outlining the number of containers lost by size, brand, and class.

   1. (1) A theft of alcoholic beverages shall be reported to the proper police or sheriff's department and must be substantiated by the report of such police or sheriff's department.
   2. (2) A disaster causing a loss of alcoholic beverages shall be reported to the commission and must be substantiated by an affidavit of the investigating employee of the commission.

8. (h) Invoices.

   1. (1) An invoice shall be issued an original and one copy in consecutive numbered order, showing the date of the sale or distribution, the purchaser and his address, the quantity, brand and class of alcoholic beverages sold and the total price of each brand and class shown thereon. Such invoices or a copy thereof shall be delivered to the permittee and a copy of such invoice shall be kept by the seller making same.
   2. (2) A permittee shall not possess or permit to be possessed on his licensed premises any alcoholic beverage which is not covered by an invoice from the supplier from whom the alcoholic beverage was purchased by the permittee. Each invoice shall be kept on the licensed premises for a period of two years and shall be made available to a representative of the commission upon reasonable request.
9. (i) If any permittee, in computing and paying the gross receipts tax due, through mistake, error or miscalculation, has paid more gross receipts tax than is legally due, the permittee who paid such excess gross receipts tax shall be entitled to a refund, and a claim for such refund may be made at the time and in the manner prescribed by the administrator, and such excess gross receipts tax shall be refunded to the permittee who has paid the same or credit may be allowed on future gross receipts tax payments. Refunds for overpayments of gross receipts tax may be made by the commission from the mixed beverage clearance fund before the same has been allocated.

Source Note:The provisions of this §41.50 adopted to be effective January 1, 1976; amended to be effective September 18, 1978, 3 TexReg 3093.