Can an independent contractor working for a Texas customs broker sign export certifications, and can an export certification just reference an attached invoice instead of listing item descriptions?

Plain-English summary

A licensed Texas customs broker asked the Comptroller's office whether an outside party could act as the broker's "signing and verifying agent" for export certification purposes at the "point of no return" on bridges between Texas and Mexico, under an independent contract arrangement.

The Comptroller's office said no, not under the rule as it existed at the time. Rule 3.360 (Customs Brokers) limited export certification functions to the licensed broker and the broker's own "employees." The letter explains that an employee, for this purpose, is someone who holds the broker's power of attorney, works under the broker's direct or general supervision, is paid a regular salary or wages by the broker, and has federal taxes actually withheld from that pay by the broker. Because the proposed arrangement was with an independent contractor or agent rather than a true employee, it did not qualify — even though the office noted it was in the process of amending Rule 3.360 and intended to incorporate aspects of the broker's proposal into the amended rule once finalized.

The letter also answered a second, separate question: whether an export certification form could simply state "As per attached invoice" rather than listing an item description directly on the form. The Comptroller's office said this was acceptable, provided the attached invoices describe the product, copies of the invoices are attached to the export certification form, and the broker or an authorized employee signs each attached page.

What this means for you

Customs brokers and freight/export businesses

If you are a licensed customs broker, this letter reflects the Comptroller's 1993 position that only you or your actual employees (not independent contractors, agents, or outside firms under contract) may sign and verify export certifications. If you want to delegate that authority more broadly, check whether the amended version of Rule 3.360 referenced in this letter was ultimately adopted and what it currently allows — this letter itself only describes the rule as it stood in early 1993 and notes an amendment was in progress.

Accountants and tax professionals advising exporters

When reviewing a client's export certification paperwork, note that this letter confirms it is acceptable to reference an attached invoice ("As per attached invoice") in lieu of writing out item descriptions on the certification form itself, so long as the invoices describe the goods, are physically attached, and each attached page carries the broker's or an authorized employee's signature.

Common questions

Q: Could an independent contractor sign export certifications on behalf of a licensed customs broker under this ruling?
A: No. The letter states that as an independent contractor or agent, the proposed signer would not qualify as the broker's "employee," and Rule 3.360 at the time limited export certification functions to the broker and the broker's own employees.

Q: How did the letter define "employee" for this purpose?
A: As a person who holds the broker's power of attorney, works under the broker's direct or general supervision, is compensated by the broker with a regular salary or wages, and from whose pay the broker actually withholds applicable federal taxes.

Q: Was a rule change being considered?
A: Yes. The letter says the Comptroller's office was in the process of amending Rule 3.360 and intended to incorporate aspects of the broker's proposal into the amended rule, with a copy to be sent to the broker for comment once ready. This letter does not confirm whether or how that amendment was ultimately adopted.

Q: Can an export certification just say "As per attached invoice" instead of describing the item on the form?
A: Yes, according to this letter, as long as the attached invoices describe the product, copies are attached to the export certification form, and the broker or an authorized employee signs each attached page.

Citations and references

Rules cited:

• 34 Tex. Admin. Code Rule 3.360 (Customs Brokers) — cited as the rule limiting export certification signing authority to the broker and the broker's employees, and as the rule then being amended.

Source

• STAR search: https://star.comptroller.texas.gov/search?doc_type_code=L&tax_type_code=SST
• Opinion: https://star.comptroller.texas.gov/view/9302L1222A11

Original ruling text

February 15, 1993

Dear *****:

Thank you for your letters and for meeting with me. We are in the process
of amending Rule 3.360 (Customs Brokers). We will incorporate into the
amended rule aspects of your proposal to contract, independently, with
**, to certify exports on your behalf at the "point of no
return" on bridges between Texas and Mexico.

Until the effective date of the rule change, however, we cannot approve
your proposal to use ** as your signing and verifying agent for
Texas tax purposes. Right now, the rule specifically limits export
certification functions to the licensed broker and his or her authorized
employees. An "employee is a person who has the broker's power of
attorney, works under the direct or general supervision of the broker, is
compensated by the broker with a regular salary or wages, and from whose
salary or wages the broker is required to and actually does withhold
applicable federal taxes. As an independent contractor or agent,
** would not qualify as your employee. As soon as we get the
rule together, I will send you a copy for your comments.

Next, you asked whether you could write "As per attached invoice" on an
export certification form, instead of putting an item description on the
form. This is acceptable as long as the invoices describe the product,
copies are attached to the export certification form, and you or your
authorized employee signs each attached page.

If you have further questions or problems, please feel free to write or
call John Christian of the Tax Administration Division, at
1-800-531-5441, extension 3-3889.

Sincerely,

Mike Doyle, Director
Tax Administration