They’re Off and Running….

 

On January 28-30, 2019 both the House and Senate were back to kick off the 2019/2020 legislative session and wasted no time to introduce bills, which are of interest to tax practitioners. I’ve grouped the legislation by type for ease of reference. As in the movie Groundhog Day, some legislation is back for a second or third round.

Corporate Net Income Tax (CNI)

The House introduced bills to reduce the CNI to:

5.99% (HB70; Rothman); and 3.07% (HB72; Rothman)

 

The Senate joined in with proposals to reduce the CNI:

to 6.99% by reductions of .5%/yr. through 2024 (SB32; Brooks)

 

Also, of note is the resurrection of last session’s trio of bills to conform PA law to the IRC: like-kind exchange bill (HB105; Cox), which will parallel IRC §1031. The Senate companion bill is SB 201 (DiSanto). The NOL bill (SB 202; J. Ward); and Section 179 bill (SB 203; Hutchinson)

 

Deferral of capital gains on sale of stock of a business to an ESOP (IRC §1042)(SB 179; Browne)

Deferral of capital gains on investments in QOZ (SB 180; Browne)

 

Personal Income Tax

Impacts on PIT may be the result of bills which:

authorize per diems to support necessary, ordinary and reasonable   business expense (HB 69; Ryan)

—repeal the 1099-MISC non-resident withholding requirement (HB34; Ryan)

—impose a statute of limitations of 10 years (HB17; Ryan)

— increase the poverty tax exemption by an annual index (HB123; D. Miller) and Senate companion increases the exemption to $10,500 and $34,00 (SB 220; Hughes)

— authorize a delinquent income tax grace period (HB25; Snyder)

—-establish a first responders’ tax credit; (HB 208; Deasy)

 

Other tax credits under consideration will be:

educational investments in economically depressed areas (HB 42; Snyder)

pediatric cancer research (HB174; Caltagirone)

REAP credit eligibility clarification to include “individuals filing jointly”  (HB 241; Pickett)

—film tax credit carry forward, carry back and assignment among a consolidated group (SB225; Killion)

—increases cap on Manufacturing Tax Credit from $4mm-12.5mm (SB 266; Hughes)

—50% of toll expenses (HB 329; Warren)

—Adoption ($1,000) and foster care ($500) (HB296; Toohil)

 

Inheritance Tax

The House will consider bills designed to:

—eliminate the inheritance tax in full (HB77; Rothman)

—eliminate the inheritance tax for children age 21 and under (HB262; Metzgar)

And on the Senate side:

—phase out over 8 years the inheritance tax for siblings (SB27; Brooks)

—reduce inheritance tax on non-sibling relatives and phase out to 0 by 7/1/29 (SB28; Brooks)

Sales and Use Tax

            Both the House and the Senate are attempting to provide some relief for  firefighters:

—exclusion for purchase of firefighting equipment from firefighters’ own DiSanto (SB121)  

funds (HB209; Deasy) with a similar bill authorizing a tax credit of up to $500 (HB 376; Owlettt)

—exemptions on sales of prepared foods by volunteer fire companies (SB 83; Martin)

Solar energy use encouraged via exemption from sales tax (SB 148; Hughes)

—exemption for equipment for the visually impaired (SB 175; Browne)

And the House is looking out for banks in clarifying the application of sales  and use tax on canned and customized software for financial institutions(HB 19; Sankey)

—exemption clarification for traffic signals to include foundations, posts and mast arms ((HB 304; Toohil)

Home safety and school safety are the focuses of a sales tax exemption and a news sales tax imposition:

—exemptions on gun safe and vault purchases (SB103; Hutchinson)

—imposes a new 10% sales tax on video games with adult only or mature ratings (HB109; Quinn)

Realty Transfer Tax

            —exemption for children or surviving spouse if family home is sold within 5  yrs. of death (HB269; Driscoll)

 

 

Property Tax

— imposes real estate tax on PASSHE, state-related colleges, community colleges and independent colleges (HB191; Cruz)

—Authorizes local taxation of natural gas hazardous liquids pipelines (SB 264; Dinniman)

—Requires school boards to calculate and disclose unfunded pension liability

—property tax clean up legislation (HB 330; Emrick)

Tax Increment Financing

            —Includes wage tax revenue (SB 171; Browne) and state and local sales tax  (SB 172; Brown) in tax increment.

 

Property Tax and Rent Rebate Program

Amends the Taxpayer Relief Act of 2006 to:

—increase the income cap from $35,000 to $40,000

—prohibit assignment of rent rebates to a landlord (HB207; Deasy).

—exclude Medicare Part B payments from income(SB 272; J. Ward)

 

State Long-Term Leases

—requires legislative approval of state long-term leases which appear to have been used to circumvent legislative or voter approval of state  debt issuances. (HB 363; Lawrence)

Collection of Delinquent Taxes

—creates independent authority to act as clearinghouse for all state and local delinquent taxes

Constitutional Amendments

            —limits growth in state spending to the lower of two indices: avg. change in personal income for the 3 preceding calendar yrs. OR the avg. inflation rate plus the avg. percentage change in the state population over the  preceding 3 yrs. (SB116; Bartolotta)

—requires a 2/3 vote of the legislature to increase taxes. (SB121; DiSanto)

—exempts 100% disabled vets without the “injury due to war service” (HB 287; Simmons)

— eliminates all property taxes as of 7-1-26 (HB 382; Diamond)

 

Fasten your seat belts and call the State and Local Tax group or the Government Relations practice group at McNees Wallace & Nurick LLC for more information.

The McNees State and Local Tax Group will be presenting two upcoming webinars.  The first, on Thursday, January 31, 2019 from 12:00 p.m. until 12:45 p.m., will be presented by Randy L. Varner and Paul R. Morcom and will cover reverse audits and how they can help your bottom line.  More information, including instructions to register, can be found here:  https://www.mcneeslaw.com/reverse-audits-prnnsylvania/

The second, covering the Pennsylvania 2019-2020 tax proposals and budget, will be held on Thursday, February 7, 2019 from 12:00 p.m. until 12:45 p.m., and will be presented by Randy L. Varner and Sharon R. Paxton.  More information, including instructions to register, can be found here:  https://www.mcneeslaw.com/pennsylvania-tax-outlook-webinar/

We hope that you are able to join us for one or both of these webinars.  Please hurry and register because space is limited!

 

On January 8, 2019, in Sales and Use Tax Bulletin 2019-01, the Pennsylvania Department of Revenue has provided nexus guidance in the post-Wayfair environment.  The provisions of the bulletin apply to transactions on or after July 1, 2019.

Current Law:

The Tax Reform Code requires every person maintaining a place of business in the Commonwealth to sell tangible personal property, or perform taxable services, to be licensed to, and collect, sales tax from its customers.  72 P.S. § 7202, 7208.  “Maintaining a place of business in the Commonwealth,” includes “[h]aving any contact with this Commonwealth that would allow the Commonwealth to require a person to collect and remit tax under the Constitution of the United States.”  Id.

Post-Wayfair:

In the bulletin, the Department states that in light of the United States Supreme Court’s decision in Wayfair that physical presence is not required by the United States Constitution, and that an economic nexus, such as that set forth in the South Dakota statute, is sufficient to past constitutional muster, that a substantial economic nexus satisfies the Tax Reform Code’s definition of maintaining a place of business, requiring a taxpayer to collect and remit Pennsylvania sales tax.

Vendor Protections:

The bulletin provides that economic nexus applies only to those persons who, in the previous twelve months, made more than $100,000 worth of taxable sales into the Commonwealth.  There is no minimum number of transactions provided as an alternative, unlike the South Dakota statute in Wayfair.

A marketplace facilitator with no physical presence in Pennsylvania should use both facilitated and direct sales to determine whether the $100,000 threshold is met.  A marketplace seller with no physical presence in Pennsylvania should use only its direct sales and those sales made through a marketplace facilitator that does not collect sales tax on its behalf, to determine whether it has met the $100,000 threshold.

The Department will certify service providers that will offer software and perform services that when relied upon by a vendor to determine whether or not the sale of a particular product or provision of a particular service is subject to sales tax will relieve the vendor of liability upon audit.  The certified service provider will also aid in the registration, collection, reporting, and remittance of sales tax.

Coordination with the Marketplace Sales Act:

These new economic nexus rules do not replace or provide an alternative to the Marketplace Sales Act.  The provisions of that act remain applicable to vendors that have neither physical presence nor economic nexus with the Commonwealth.  One important point: if economic nexus exists, facilitators and sellers may not elect to simply provide notice–they must collect and remit sales tax.  Also, if a marketplace facilitator has economic nexus, it will now be required to collect the sales tax on all sales into Pennsylvania, even if the sale is on behalf of a marketplace seller that does not individually have any nexus.

The provisions of the Bulletin shall apply to transactions that occur on or after July 1, 2019.

The Department will be adding procedural and technical guidance, as well as the certified services providers, to its website as they become available.

It is likely that much of this bulletin will become part of a legislative package.  Please keep following this blog for more information and updates.

 

In In Re: Consolidated Appeals of Chester-Upland School District and Chichester School District v. Board of Assessment Appeals of Delaware County, 633 C.D. 2017 (12/27/18), the Commonwealth Court (“Court”) vacated the trial court’s April 27, 2017 Order ruling that Chester-Upland School District and Chichester School District (“Appellants”) may not consider the presence of an outdoor advertising sign on a property when determining its fair market value for the purposes of a real estate tax assessment.

The Consolidated County Assessment Law (“CCAL”) excludes signs and sign structures from real estate taxation as follows:

No sign or sign structure primarily used to support or display a sign shall be assessed as real property by a county for purposes of the taxation of real property by the county or a political subdivision located within the county or by a municipality located within the county authorized to assess real property for purposes of taxation, regardless of whether the sign or sign structure has become affixed to the real estate.

53 Pa. C.S. § 8811(b)(4).

On appeal to Court, Appellants acknowledged that a billboard and the structure that supports it are not to be considered as part of an assessment of property pursuant to Section 8811(b)(4), but the sign-and-sign-structure exclusion does not preclude assessment of the land on which a billboard sits and the consideration of income derived from a lease of that land for the purpose of erecting and operating a billboard.

The Court found that Section 8811(b)(4), like other exclusions of that subsection, plainly requires by its text only that the physical billboard sign and the structure that supports the sign be excluded from the valuation, but this provision does not have any effect on a taxing authorities valuation of the land and other non-excluded or non-exempt taxable real estate situated on that land.

The Court looked to Tech One Associates v. Board of Property Assessments, Appeals and Review of Allegheny County, 53 A.3d 685 (Pa. 2012) to determine that when real estate is subject to a long-term lease, the portions of the property subject to a leasehold interest cannot be disregarded in valuing the property.

Accordingly, the Court held that the trial court erroneously interpreted the sign-and-sign-structure exclusion of Section 8811(b)(4) to foreclose any consideration of any potential income that a property owner may receive from the placement of a billboard on the property in arriving at a fair market value. Thus, the Court remanded the matter back to the trial court for further proceedings consistent with its holding.

Please contact Paul Morcom (717-237-5364) or Randy Varner (717-237-5464) if you have any questions regarding this decision.

In Betters, et. al. v. Beaver County, 152 C.D. 2018 (12/18/18), the Commonwealth Court affirmed the trial court’s determination that Beaver County’s (“County”) base-year method of property valuation violated the Uniformity Clause of Article VIII, Section 1 of the Pennsylvania Constitution and the Consolidated Assessment law and mandated the County to complete a countywide reassessment by 2020. The County appealed the trial court’s order claiming that the trial court erred by refusing to exclude objected-to expert testimony and in determining that the Taxpayers were entitled to relief despite the fact they did not introduce any evidence that they have suffered a specific harm to their particular properties.

In December of 2015, a group of taxpayers (the “Taxpayers”) filed a complaint in mandamus to compel the County to perform a countywide reassessment. The Taxpayers alleged that the last countywide reassessment was in 1982, and that the County has been applying insufficient and outdated methods for valuing properties, which are grossly inequitable and non-uniform. During a nonjury trial, the Taxpayers offered testimony from two expert witnesses regarding expert conclusions pertaining to data that was compiled by two of their colleagues that did not testify.  That data was used to determine that the County had a coefficient of dispersion of 34.5%, thus indicating that the system of tax assessment employed by the County was not uniform. The County and Green Township (“Township”) objected to the conclusions during trial arguing that they were hearsay because the data collectors did not testify and thus there was not a proper foundation for the expert’s conclusions. However, the trial court overruled the objections and ultimately found that the base-year method of valuation employed by the County violates the Uniformity Clause and the Assessment Law because it does not reflect, uniformly and accurately, the proper assessed values of the 96,000 parcels in the County.

At Commonwealth Court, the County argued that the trial court erred by admitting the expert conclusions into evidence over the County and Township’s objections because the facts upon which the expert relied were not articulated or made part of the record pursuant to Rule 705 of the Pennsylvania Rules of Evidence. The Commonwealth Court noted that in Commonwealth v. Thomas, 282 A.2d 693 (Pa. 1971), the Pennsylvania Supreme Court permitted an exception to the rule allowing experts to rely upon reports of others not in evidence, i.e., inadmissible hearsay, provided the reports were of a type customarily relied on by the expert in the field in forming opinions. Additionally, the Commonwealth Court mentioned that Pennsylvania Rules of Evidence 104 allows the rules of evidence to not apply when the judge is the fact finder. Accordingly, the Commonwealth Court determined that the trial court did not err or abuse its discretion by admitting the expert testimony over the objections because the County and Township chose not to subpoena the data gatherers and because the County offered no basis upon which to conclude that the data gathered and relied upon by the experts was unreliable.

The County also argued that the trial court erred by denying the County’s motions for nonsuit where the Taxpayers failed to introduce any evidence of a harm or damage personal to them. The Commonwealth Court quickly dispatched this argument by concluding that the Taxpayers here challenged the entire statutory scheme of valuation in the County as violative of the Uniformity Clause and thus under Clifton v. Allegheny County, 969 A.2d 1197 (Pa. 2009), evidence of a harm or damage personal to them was not required.

Please contact Paul Morcom (717-237-5364) or Randy Varner (717-237-5464) if you have any questions regarding this decision.

Nonprofit entities that own Pennsylvania real property are under relentless attack from local taxing jurisdictions regarding the exempt status of property used for charitable purposes, and thus must be ever vigilant in fighting back to either maintain a property’s exempt status or gain exempt status for a newly built or acquired property.

To be successful, nonprofit entities need to fully understand the constantly evolving landscape of the real estate tax “purely public charity” exemption in Pennsylvania.

A summary of the current legal standard for Pennsylvania’s “purely public charity” exemption:

To qualify for an exemption from tax as a “purely public charity,” an entity must meet both constitutional and statutory requirements. Mesivtah Eitz Chaim of Bobov, Inc. v. Pike Cnty. Bd. of Assessment Appeals, 44 A.3d 3 (Pa. 2012).

First, an entity must prove it is a “purely public charity” under Article VIII, Section 2(a)(v) of the Pennsylvania Constitution, which provides:

(a) The General Assembly may by law exempt from taxation:

(v) Institutions of purely public charity, but in the case of any real property tax exemptions only that portion of real property of such institution which is actually and regularly used for the purposes of the institution.

CONST. art. VIII, § 2(a)(v).

Unfortunately, the Pennsylvania Constitution does not define the term “purely public charity.” For over a hundred years the courts in Pennsylvania were left to determine what was a “purely public charity.” In 1985, the Pennsylvania Supreme Court decided Hospital Utilization Project v. Commonwealth, 487 A.2d 1306 (Pa. 1985) (commonly known as “HUP”), which set forth the following five criteria that an organization must satisfy to be considered an “institution of purely public charity:”

  1. Advance a charitable purpose;
  2. Donate or render gratuitously a substantial portion of its services;
  3. Benefit a substantial and indefinite class of persons who are legitimate subjects of charity;
  4. Relieve the government of some of its burden; and
  5. Operate entirely free from private profit motive.

This five-prong test for “purely public charity” status has become known as the “HUP test.” All five-prongs must be met. If an organization does not meet just one prong, it is not a “purely public charity,” and thus its property is not entitled to a tax exemption. By satisfying the HUP test, the applicant demonstrates that it meets the minimum constitutional qualifications for being an appropriate subject of a tax exemption.

Once the Constitutional HUP test is satisfied, an entity seeking a “purely public charity” exemption must satisfy the five statutory requirements of the Institutions of Purely Public Charity Act, codified at 10 P.S. §§ 371-385 (“Act 55”). The purpose of Act 55 was to legislatively clarify the five-point test for exemption adopted by the HUP test in a way that would eliminate inconsistent application of standards by providing uniform grounds for exemption. 10 P.S. § 372(b).   However, the Pennsylvania Supreme Court in Mesivtah Eitz Chaim of Bobov, Inc. v. Pike Cnty. Bd. of Assessment Appeals, 44 A.3d 3 (Pa. 2012) held that before ever getting to Act 55’s test, an institution must pass constitutional muster by clearing the five-prong HUP test. Thus, instead of replacing the HUP test, Act 55 just became another test a charitable organization must satisfy to qualify for tax exemption.

Finally, an entity must also prove it merits an exemption under the applicable county assessment law. The Consolidated County Assessment Law, 53 Pa.C.S. § 8812, provides tax exemptions for second class A through eight class counties, which accounts for 65 of the 67 counties in Pennsylvania. Exemptions for first class (Philadelphia County) and second class (Allegheny County) counties are still governed by the General County Assessment Law, 72 P.S. § 5020-204.

Accordingly, an entity will be considered a “purely public charity” and its property will be exempt from real estate taxes only after it satisfies the five criteria of the HUP test, the five criteria of Act 55 and the specific criteria in each relevant county assessment law .

Current “Purely Public Charity” Exemption Landscape in Pennsylvania:

The current landscape for the “purely public charity” exemption in Pennsylvania is filled with landmines. The local taxing jurisdictions (schools, municipalities and counties) in Pennsylvania are looking for revenue sources wherever they can find them with the ever-increasing pension issue, shrinking tax bases and rising administration costs. Thus, taxing jurisdictions are appealing “purely public charity” exempt property classifications at an alarming rate with a “nothing to lose attitude.”

The heavy burden to prove it is entitled to exemption is on the organization seeking exemption. Four Freedoms House of Philadelphia, Inc. v, Philadelphia, 279 A.2d 155 (Pa. 1971 ). This principle is not overruled even if the taxing authority is seeking to remove the exemption from the exempt realty. School District of City of Erie v. Hamot Medical Center, 602 A.2d 407 (Pa. Cmwlth. 1992). Accordingly, the cards are affirmatively stacked in favor of the taxing jurisdictions because an organization seeking exemption only must not satisfy one of the criteria under the HUP test, Act 55 or the county assessment law to not be considered a “purely public charity.”

Since the HUP decision was handed down in 1985, many charitable institutions have lost their exempt status because the appellate courts took a strict application of the mandated criteria. When Act 55 was enacted, the appellate courts took a more liberal approach of the mandated criteria at the expense of the taxing jurisdictions. However, the appellate courts have now gone back to a strict application of the mandated criteria since Mesiztah Eitz Chaim held that an institution must pass constitutional muster by satisfying the HUP test before ever getting to Act 55’s test.

Accordingly, recent case law coming out of the appellate courts regarding the “purely public charity” exemption is very inconsistent and relies heavily on the facts of each specific case. These inconsistencies have led to nonprofit entities having to expend considerable financial resources to fight for “purely public charity” exemption – resources that could be used instead for furthering the nonprofit entity’s charitable mission.

Payment in Lieu of Taxes:

In recent years, many nonprofit entities are entering into a payment in lieu of taxes agreement (“PILOT”) with the taxing jurisdictions in order to forego the costs and risks of litigation as to whether or not it is a “purely public charity.” Unfortunately, taxing jurisdictions in Pennsylvania are using every means possible to pressure nonprofit entities into entering these types of agreements in order to forego costs of litigation. Specifically, taxing jurisdictions have been known to use the media (i.e. television, social media or newspaper) to call out a nonprofit entity for seeking exempt status on a property and thus removing much needed tax revenues from a struggling school district or municipality. There have also been instances where taxing jurisdictions have publicly announced what one nonprofit entity was paying in a PILOT with the expectation that another nonprofit entity seeking a PILOT would agree to pay the same amount.  Undoubtedly, a PILOT will have an adverse financial impact on nonprofit entities that agree to pay them, and as stewards of tax-exempt donor funds, nonprofit entities may be coerced into making payments that do not necessarily fall within its particular charitable purpose. Consequently, nonprofit entities must walk a fine line between being “good corporate citizens” and fulfilling its charitable mission.

The one main advantage to a PILOT is that they are contracts between the nonprofit entity and the taxing jurisdiction and thus could be structured in any way that the parties agree. Accordingly, a PILOT should be looked at with an “outside the box” mentality. A PILOT doesn’t have to be exclusively about money changing hands from the nonprofit entity to the taxing jurisdiction. In fact, a nonprofit entity can donate its services or facilities in exchange for the taxing jurisdiction not disputing its tax-exempt status.

One of the main issues when dealing with a PILOT is whether the property at issue is a newly created property that could now be taxed or is one that was taxed and could now be nontaxable. A PILOT should be easier to agree to when dealing with a property that was never taxed and could now possibly be taxed because the taxing jurisdictions were never financially dependent on any tax revenue from that property. It is a whole other ball game when a large taxable property is sold to a nonprofit entity and could possibly be deemed exempt going forward because the taxing jurisdictions need to figure out how to fill that budget gap. In these instances, I find that a stepped down payment plan works best so that the taxing jurisdictions can adjust their budgets accordingly going forward.

There has not been a lot of litigation regarding PILOTs in Pennsylvania. However, a recent Commonwealth Court decision upheld a trial court order granting a petition to enforce a PILOT agreement. In re Appeal of Springfield Hosp., 179 A.3d 632 (Pa. Cmwlth. 2018). The relevant facts in that case were as follows: taxing authorities sought to impose property taxes upon a nonprofit entity that operated a hospital after the health campus was expanded to include medical office buildings, a sports club and a parking garage which the taxing authorities asserted were not entitled to an exemption. The matter was resolved through the parties entering into a PILOT agreement. The PILOT agreement specified that the hospital and its successors and assigns would not be subject to real property tax so long as the existing hospital building is used solely for hospital purposes by the taxpayer, or by another tax-exempt entity. When the property was sold to a for-profit entity, the taxing authorities sought to impose property tax effective on the date of transfer.

The trial court found, and the Commonwealth Court agreed, that the plain language of the PILOT agreement provided that the property would become taxable on transfer to a non-exempt entity. The Commonwealth Court further found that making the assessment of taxes effective as of the date of transfer under the PILOT agreement did not violate the tax assessment day rule as the change in taxation is not pursuant to a reassessment. The rationale being that the parties agreed in the PILOT that tax was due on the property when and if the property was not owned by a hospital that was exempt from federal taxation.

This decision is troublesome because the rule in Pennsylvania (the tax assessment day rule) has always been that if a property is tax exempt on the day of assessment, it remains tax exempt for the entire year. Accordingly, if a property is tax exempt on January 1, it is exempt until December 31. Likewise, if a property is taxable on January 1, it is taxable until December 31. The rationale being that the taxing jurisdictions could budget accordingly if they knew that a property was taxable or nontaxable the entire year, instead of only part of the year.

Pursuant to this decision, nonprofit entities should be careful how they address the sale of an exempt property in a PILOT. Because a PILOT is a contract, the parties to a PILOT can agree that a property will be taxable January 1, the year after the property is sold to a for-profit entity. Thus, ensuring a for-profit buyer certainty of future local real estate tax liabilities that potentially could help close the sale.

Conclusion:

In sum, nonprofit entities need to be vigilant in understanding the “purely public charity” exemption laws in Pennsylvania to properly contest increased scrutiny on their properties from local taxing jurisdictions. Additionally, nonprofit entities need to be creative when negotiating PILOT terms with a taxing jurisdiction and should come to the negotiation table with an “outside the box” mentality.

 

Please contact Paul Morcom, Esq. at 717-237-5364 or Randy L. Varner, Esq. at 717-237-5464 if you have any questions regarding the “purely public charity” exemption or PILOTs in Pennsylvania.

 

On October 1, 2018, the Pennsylvania Department of Revenue (“DOR”) revised its Tax Bulletin – Sales and Use Tax 2018-02 to be effective July 1, 2019 instead of the previous effective date of January 1, 2019.  This change gives manufacturers of malt or brewed beverages an extra 6-months to become compliant with collecting and remitting sales tax to the DOR on its sales of malt or brewed beverages.  Please read our previous blog post from August 3, 2018 that explains the details of Tax Bulletin – Sales and Use Tax 2018-02.

If you have any questions regarding Tax Bulletin – Sales and Use Tax 2018-02, please contact Paul Morcom (717-237-5364), Sharon Paxton (717-237-5393) or Randy Varner (717-237-5464) to discuss.

 

On August 20, the Pennsylvania Department of Revenue issued Corporation Tax Bulletin 2018-04, which announces the Department’s position regarding the scope of taxable and nontaxable telecommunications receipts for Gross Receipts Tax (“GRT”) purposes based on the Pennsylvania Supreme Court’s decision in Verizon Pennsylvania, Inc. v. Commonwealth, 127 A.3d 745 (Pa. 2015), and Act 52 of 2018, which provides a statutory exclusion for receipts from certain equipment and accessories (“Equipment”).  Act 52, which took effect on June 28, 2018, excludes receipts from “the sales of telephones, telephone handsets, modems, tablets and related accessories, including cases, chargers, holsters, clips, hands-free devices, screen protectors and batteries” from the tax base and applies retroactively to gross receipts from transactions occurring on or after January 1, 2004.  Act 52 further provides that “no claim for refund or credit for a tax paid prior to [June 28, 2018]” shall be based on the Act, which creates a potential uniformity issue.

The Bulletin provides the following non-comprehensive sample of sales of services and equipment generating taxable receipts:

(1) End user charges, including costs, fees, and surcharges itemized on a customer’s bill (e.g., subscriber line charges and gross receipts tax surcharges).

(2) Directory Assistance.

(3) Late payment fees.

(4) Non-recurring charges, including termination, installation, repairs, moves and changes to service.  Non-recurring charges include any charges for wires, switches, connectors, or similar property provided as part of the termination, installation, repairs, moves and changes to service.

(5) Enhanced telecommunications receipts, including voicemail, call forwarding, call waiting and custom ringtones.

(6) Receipts from sales of service using voice over Internet protocol (VOIP).

(7) Receipts from paging services.

(8) Receipts from sales and leasing of private lines and private networks, including dark fiber.

(9) Receipts from sales and leasing of equipment and property, except for excluded Equipment charges (see below).

The following is a comprehensive list of authorized GRT deductions per the Department:

(1) Receipts from sales of internet service to the ultimate consumer and sales of service exempt under the Internet Tax Freedom Act.

(2) Resale receipts from persons subject to GRT on the resale of the telecommunications.

(3) Sales tax collected by the taxpayer.

(4) Distributions to a telecommunications provider from the USF authorized by USAC.

(5) The uniform 911 surcharge.

(6) Bad debt, provided the taxpayer satisfies the conditions established in Corporation Tax Bulletin 2011-02.

(7) Receipts from sales and leasing of telephones, telephone handsets, modems, tablets and related accessories, including cases, chargers, holsters, clips, hands-free devices, screen protectors and batteries.

 

 

 

 

 

 

 

On July 27, 2018, the Pennsylvania Department of Revenue (“Department”) issued Tax Bulletin – Sales and Use Tax 2018-02 regarding taxpayers engaged in the manufacture and sale of malt or brewed beverages.  The Bulletin is intended to help clarify when a manufacturer of malt or brewed beverages must collect sales tax on the sale of malt or brewed beverages.  Unlike a retail liquor licensee or retail dispenser, a manufacturer of malt or brewed beverages is required under the Tax Reform Code of 1971 to collect sales tax on its sales of malt or brewed beverages to any person for any purpose except sales to importing distributors or distributors.  72 P.S. § 7201(k)(10).  The Department realized that confusion will occur since a manufacturer is required to collect sales tax on each individual sale of its own product to the public for on-premise or off-premise consumption, while other licensees, not selling their own product but in all other respects acting in a similar capacity, do not collect sales tax.  Accordingly, the Department will provide manufacturer’s the following two options for collecting and remitting sales tax:

1.  Include the sales tax in the advertised price of their product; or

2.  Separately state and charge sales tax on each individual sale.

Under Option #1, the sales tax shall be computed by the following formula:  (Total receipts from the sale of its own products ÷ 1.06) X .06 = Sales Tax Due.  Please note that a manufacturer that elects to collect tax using this method must display a sign at the location where its prices are displayed noting that the displayed purchase price includes sales tax.  Additionally, a manufacturer must pay sales tax when it purchases products other than its own to sell to the public for consumption on-premises.  The Department will not require a manufacturer to collect sales tax on sales of other manufacturers’ products to the public (similar to how a bar or restaurant operates).

Under Option #2, the manufacturer must collect and remit sales tax on each individual sale of its own product, whether the sale is for on-premises or off-premises consumption.  Additionally, if a manufacturer sells the products of other manufacturers, it must collect the sales tax on the purchase price of those sales as well.  The manufacturer should provide the other manufacturer with an exemption certificate claiming a sale for resale exemption.  A manufacturer claiming the resale exemption must collect sales tax when its sells the property to its customers.  If the manufacturer does not provide an exemption certificate to the other manufacturer when making a purchase and pays sales tax on items that it later resells to customers and charges sales tax, the manufacturer may claim a Taxes-Paid-Purchases Resold credit on  its sales tax return.

For manufacturers that sell its malt or brewed beverages under a retail license there are special rules because sales tax is not charged on the sale to the ultimate consumer of the malt or brewed beverage.  In these type of situations, the Department requires the manufacturer to use a constructive purchase price for its own products in order to determine the proper tax base upon which to remit sales tax to the Commonwealth.  The Department considers the actual retail price of the malt or brewed beverages sold to consumers to best reflect the constructive purchase price.  In this scenario, the Department will allow a manufacturer to calculate its tax owed using the Option #1 method mentioned above.

Please note that the Department’s guidance is applied prospective only, beginning with the effective date of January 1, 2019.

If you have any questions regarding this Tax Bulletin, please call Paul Morcom (717-237-5364), Sharon Paxton (717-237-5393) or Randy Varner (717-237-5464) to discuss.

 

 

The annual assessment appeal deadline for tax year 2019 real estate taxes just passed on August 1, 2018 for 19 of Pennsylvania’s 67 counties.  The next annual assessment appeal deadlines are as follows:

  • Berks County – August 15, 2018
  • Wyoming County – August 31, 2018

The majority (44 out of 67) of Pennsylvania’s counties have an annual assessment appeal deadline of September 1, 2018 for tax year 2019.  Those counties are:

  • Armstrong
  • Beaver
  • Bedford
  • Blair
  • Bradford
  • Cameron
  • Carbon
  • Centre
  • Clarion
  • Clearfield
  • Clinton
  • Columbia
  • Crawford
  • Cumberland
  • Elk
  • Forest
  • Fulton
  • Greene
  • Huntington
  • Jefferson
  • Juniata
  • Lackawanna
  • Lebanon
  • Lycoming
  • McKean
  • Mercer
  • Mifflin
  • Montour
  • Northumberland
  • Perry
  • Pike
  • Potter
  • Schuylkill
  • Snyder
  • Somerset
  • Sullivan
  • Susquehanna
  • Tioga
  • Union
  • Venango
  • Warren
  • Washington
  • Wayne
  • Westmoreland

The appeal deadline for Philadelphia County is the first Monday of October, which is October 1, 2018 this year.

Allegheny County is the only county that has a deadline, March 31, that is actually during the year that you are appealing. Thus, the appeal deadline for tax year 2019 in Allegheny County is March 31, 2019.

If you own or lease commercial or industrial properties in Pennsylvania, please make sure that you are aware of these appeal deadlines. Additionally, if you are not sure if you should file an appeal on your property, please contact either Paul Morcom at 717-237-5364 or Randy Varner at 717-237-5464 to determine if an appeal is warranted for tax year 2019.