Texas Proposes to Stop Taxing Marketplace Fees as Data Processing. What It Covers for AI Agent Marketplaces, and What It Leaves Taxed.

Key Takeaway: On September 30, 2026, Texas Comptroller Don Huffines announced an executive order directing his office to remove marketplace and platform fees from taxable data processing under Rule 3.330. The proposed amendment was published in the Texas Register on October 16, and comments are due November 15. If it is adopted as reported, the commission an AI agent marketplace charges its sellers stops being taxable in Texas. The marketplace's charge for running the seller's agent does not, and neither do fees charged to the buying agent. Until the amendment is adopted, the current rule applies.

What changed, and what has not changed yet

Since October 1, 2025, Texas has said in writing that marketplace fees can be taxable data processing. The current text of 34 Tex. Admin. Code § 3.330(b)(5) reads: "Effective October 1, 2025, marketplace provider services may be included in taxable data processing services when they involve the computerized entry, retrieval, search, compilation, manipulation, or storage of data or information provided by the purchaser or the purchaser's designee." Its example is the one every agent marketplace recognizes: services "that store product listings and photographs, maintain records of transactions, and compile analytics are taxable data processing services."

The Comptroller's September 30 release calls this a hidden double tax. It says the 2025 reading reached fees paid to selling platforms, delivery apps, short-term rental sites, ride-hailing and pet-care apps, while the customer's underlying purchase was often taxed as well. The release directs staff to propose an amendment to Rule 3.330 and promises a 30-day public comment period. It says nothing about refunds, retroactivity or an effective date.

I could not read the proposal itself. The Texas Register archive does not load from our systems. What follows on its text comes from the McDermott Will & Schulte alert of October 23, which quotes it. The amendment would delete (b)(5) and add a new subsection (j), "Platforms and Platform Provider facilitation fees." Under proposed (j)(2), a "fee, commission, or other charge imposed by a platform provider, upon a platform seller" is not a taxable data processing service or a taxable information service. That holds "without regard to how the charge is calculated, whether a sale occurs, or whether the charge is collected directly or netted against amounts owed to the platform seller." According to the alert, the new subsection "becomes effective on the date this amendment is adopted." It also reports that the proposed "platform provider" definition is broader than the statutory marketplace provider definition, so it reaches platforms whose sellers offer items that are not taxable. I have not read those definitions, and the analysis below does not depend on their wording.

Why AI agent marketplaces should read this closely

Texas taxes data processing, and Rule 3.330(a)(1) defines it broadly: "the computerized entry, retrieval, search, compilation, manipulation, or storage of data or information." A marketplace for agents, tools, skills or model endpoints does every one of those things for its sellers. Under (b)(5), a Texas-based agent developer paying a 15% take rate to a listing platform was buying a taxable service. Under subsection (c)(4), 20% of a data processing charge is exempt, so the tax ran on the other 80%.

As reported, proposed (j)(2) is written well for this business. Agent marketplaces rarely charge a flat listing fee. They charge per call, per task, per token, or a share of revenue taken out of the seller's payout. "Without regard to how the charge is calculated, whether a sale occurs" covers per-call pricing and listing fees with no conversions. "Netted against amounts owed to the platform seller" covers the usual payout model, where the developer never sees an invoice and simply receives less.

There is a quieter point in the current rule. Subsection (a)(4) excludes the settling of an electronic payment transaction from data processing, but it states that the term "does not include charges by a marketplace provider." A marketplace cannot turn its commission into a nontaxable payment-processing charge by relabelling it. The proposal reaches the same result by a different route. The commission is out because it is a commission, not because it looks like payment processing. The Comptroller's preamble, as quoted in the alert, puts it plainly: "The transaction fees charged by the marketplace providers are commissions, not data processing services."

What the proposal does not reach

Running the seller's agent. Many agent platforms do two things for one price: they list the agent, and they host and execute it. The hosting and execution are data processing in their own right. Nothing in the reported text of (j) touches the definition in (a)(1), the internet-hosting example in (b)(6), or the computer-time language in (a)(1)(A)(iv). A platform that charges its seller one blended rate for both may find that the taxable half stays taxable. Rule 3.330(e)(2) adds another problem: where a single charge combines nontaxable and taxable services and the taxable portion is "more than 5.0% of the total charge, the total charge is presumed to be taxable." Read with the proposal, my view is that a blended take rate that covers hosted inference is exposed to that presumption. The way out the rule offers is "separately stating to the customer a reasonable charge for the taxable services." This is my reading of how the two provisions fit together. It is not a position the Comptroller has taken.

Fees charged to the buyer. Proposed (j)(2) is about charges imposed "upon a platform seller." Agent marketplaces increasingly charge the buying agent too: a per-call platform fee added to an x402 payment, or a service fee on top of the listed price. The reported text does not address those. Whether they are part of the taxable price of the underlying service or a separate service is left where it is today.

Tools sold separately to sellers. The deleted example named analytics. Deleting an example does not exempt the activity. A seller dashboard that compiles the seller's own call logs into usage reports still fits the (a)(1) definition, and the ancillary test in (a)(1)(C) puts the burden on the taxpayer "to demonstrate that the data processing service does not have a separate value." A tool billed on its own line has a separate value by construction. The McDermott alert flags this area as unresolved too.

The last thirteen months. As reported, the amendment applies from adoption. Fees paid between October 1, 2025 and adoption remain under the current rule, and the release does not address them. The Eversheds Sutherland note of October 1 suggests marketplace providers that paid tax on these fees may have a refund claim. I would not plan around that until the Comptroller says something. I would keep the records that would support one.

What AgentTax users should do now

• Keep collecting or accruing under the current rule. Adoption cannot come before November 15, and the final text may differ from the proposal. Our Taxpayer First Project post said a published Rule 3.330 amendment would be the first real test of the new Comptroller's promise to make policy through rulemaking. This is that test, and it has not finished.

• Split your take rate on the invoice if your platform also runs the agent. Facilitation in one line and hosted execution in another. If the final rule follows the proposal, the first line leaves the base and the second stays in it. One blended number invites the 5% presumption.

• If you operate an agent marketplace, consider commenting. Comments are due November 15, and the alert names Robin Robinson, Associate Deputy Comptroller for Tax, as the recipient. The questions worth putting on the record are how a blended listing-and-hosting charge is treated, and whether a per-call platform fee charged to the buying agent sits inside (j) or outside it.

• Know what our engine does today. Verified this morning with a $1,000 B2B buyer call to Austin ZIP 78701: marketplace_fee returns $66.00, which is 8.25% applied to 80% of the charge, following the current rule. payment_processing_fee without a declared payment_provider_type returns the same $66.00, with an advisory asking for the provider type. We will not change the Texas marketplace_fee answer until the amendment is adopted. After adoption, the engine will need to tell a fee charged to the seller from one charged to the buyer, which marketplace_fee does not do today.

What to watch

Whether the adopted text keeps "netted against amounts owed" and "whether a sale occurs." Those two phrases do most of the work for agent marketplaces. Whether the adoption preamble answers the bundling question or leaves it to audits. Whether the Comptroller says anything about the October 2025 to adoption period. And whether this is the first of several Rule 3.330 revisions. The September 30 release says the office may propose more changes to how the data processing tax is read, and the 2025 amendment that added (b)(5) also rewrote the ancillary test that decides most agent cases.

For how Texas treats SaaS, APIs and compute generally, read our Texas SaaS guide. For a state where platform charges stay out of the base for a different reason, see our post on Missouri LR 8408. To see how the hosted-execution side of a Texas platform charge computes, run it in the playground, or start with the AI agent sales tax guide.

This analysis is for informational purposes only and does not constitute legal or tax advice. This post reflects AgentTax's current interpretation of evolving law. Consult a licensed tax professional for compliance decisions.