The City’s Office of Property Assessment is planning to post the results of reassessments of all properties in Philadelphia by Monday, May 9, 2022.

The new values of more than 580,000 residential, commercial, industrial, and institutional properties in Philadelphia are to take effect for Tax Year 2023, with property taxes due on March 31, 2023. Citywide reassessments scheduled for Tax Years 2021 and 2022 were postponed due to issues posed by the COVID-19 pandemic.

The new values are not yet available online, but are expected to be posted at property.phila.gov by Monday, May 9, 2022. Written notices of the new values are scheduled to be mailed out by September 1, 2022 at the latest.

In Quality Driven Copack, Inc. v. Commonwealth of Pennsylvania, No. 879 F.R. 2013 (decided December 29, 2021) (opinion not reported), the Pennsylvania Commonwealth Court (the “Commonwealth Court”) held that for the Taxpayer to qualify under the manufacturing exclusion for sales and use tax purposes, there must be a physical change in form to the product or products. The Commonwealth Court also reversed the Board of Finance and Revenue’s (the “BFR”) determination that sales and use tax was properly assessed on the Taxpayer relative to the use of help supply services and subsequently remanded the matter back to the BFR.

The Taxpayer is a Pennsylvania corporation engaged in the business of assembling pre-cooked frozen ingredients into frozen sandwiches and other entrees to be sold at wholesale.  To create its finished product, the Taxpayer would purchase the food components, blend them together, and then freeze them to be sold as frozen meals.  The Taxpayer claimed that it was engaged in manufacturing and processing for sales and use tax purposes in Pennsylvania as is defined under 72 P.S. § Section 201(c) and (d) and 61 Pa. Code § 32.1.

Taxpayer vehemently argued that the materials utilized in its manufacturing process, while initially various food items, were transformed by its manufacturing process into a full meal, ready for quick preparation and consumption by the ultimate consumer. Taxpayer referenced the case of Edwin Bell Cooperage Co v. Pittsburgh, 112 A.2d 662 (Pa. Super. 1955), stating that the assembly of kegs and barrels from existing parts was determined to be manufacturing because the finished keg is a permanent structure with parts which are not interchangeable and cannot be taken apart and reassembled – thus a new product is made out of materials which in combination create an article with distinctive character and use.

The Commonwealth Court disagreed, finding the Taxpayer’s comparison to the Edwin Bell Cooperage Co. case unconvincing.  The Taxpayer was met with staunch disagreement from the Commonwealth Court, which argued that a physical change in form, composition or character is missing from the Taxpayer’s packaging operation. The Commonwealth Court instead paralleled the Taxpayer’s operations to that in Commonwealth v. Tetley Tea Co., 220 A.2d 832 (Pa. 1966), in which the separation of tea from foreign matter, blending it, and placing precise amounts in specifically designed bags was not manufacturing because the entire process started and ended with tea.  The Commonwealth Court emphasized that merely assembling pre-cooked frozen food ingredients in a package is not manufacturing under the strict and limited definition in the Tax Code.

In addition to its manufacturing arguments, the Taxpayer also claimed that use tax was erroneously assessed on expense transactions including certain services that it claims were erroneously characterized as help supply services.  The Commonwealth Court argued that the services provided by the staffing contractors hired by the Taxpayer are taxable help supply services because the Taxpayer retained control over the production operation and employed a plant manager to oversee all activities of the plant.  The Commonwealth Court looked closely at the degree of ground-level direction provided by the contractor versus that retained by the Taxpayer.  The Commonwealth Court concluded that evidence presented by the Taxpayer, including affidavits from a supervisor for one of the vendors that provided labor to the Taxpayer and the vice president of Taxpayer’s company, showed that the contractors worked independently on the plant floor with very little oversight by the Taxpayer and therefore, the Commonwealth Court could not say that the Taxpayer provided the requisite level of direction for the third party labor services to be considered taxable help supply services.

Ultimately, the Commonwealth Court reversed the BFR’s decision that sales and use tax was properly assessed on the Taxpayer relative to the use of help supply services but remanded the matter back to the BFR to determine what amount, if any, the Taxpayer was assessed in sales and use tax as it relates to the help supply services.  The Commonwealth did affirm the Orders of the BFR relative to whether the Taxpayer was engaged in manufacturing for purposes of a sales and use tax exclusion.

Many taxpayers are quick to jump on this manufacturing exclusion from sales and use tax – but as seen here, it is not an easy argument to make – the taxpayer must be able to meet the threshold set in the Tax Code calling for a physical change in form rather than a mere assembly of individual items into packaging and calling it manufacturing.

If you have any questions about this Decision or any state tax matter, please feel free to contact Meghan Holjes (717-237-5390) or any member of the McNees State and Local tax team.

In February, the City of Philadelphia published FAQs regarding expiration of the temporary nexus waiver that had been in place during the COVID-19 pandemic.  During the pandemic, the City had temporarily waived its legal nexus threshold that considers the presence of employees working temporarily from home within the City as sufficient to establish nexus for businesses located outside the City for purposes of the City’s Business Income and Receipts Tax.  The waiver had applied when an employee worked from home solely as a result of the pandemic.  The City reminds employers that its temporary waiver policy ended on June 30, 2021.  Therefore, a business located outside the City that continues to have Philadelphia resident employee(s) working from home after June 30, 2021 will be considered to have nexus in 2021 based on the activities of those remote worker(s).  The determination of what constitutes a “remote workforce” in Philadelphia is based on the facts and circumstances, considering factors such as official company policies regarding remote work arrangements and the nature and regularity of business activity in Philadelphia.

For any questions regarding nexus in the City of Philadelphia, please contact Sharon Paxton, Esquire (717-237-5393), Paul R. Morcom, Esquire (717-237-5364), or Adam Koelsch, Esquire (717-237-5305).

As a result of changes in federal and state laws related to stormwater management, municipalities across the Commonwealth have been forced – in order to comply with the new laws – to seek new funding sources and to regulate businesses located within the municipality.  The deadline for compliance for municipalities is quickly approaching – September 30, 2022.  Not only are municipalities required to comply with new measures, but often the resulting new municipal regulations and ordinances are then challenged in court.  One such challenge, for the City of Chester, concluded in December of 2021 by a decision from Judge Covey in the Commonwealth Court of Pennsylvania.

In the unreported memorandum decision of Appeal of Best Homes DDJ, LLC, 239-40 C.D. 2020 (Pa. Cmwlth. Ct. Dec. 23, 2021), Judge Covey affirmed the decisions made by the Delaware County Court of Common Pleas and held that the City of Chester Stormwater Authority’s (“Authority”) Municipal Separate Storm Sewer System (“MS4”) fees were not an impermissible tax.

In Appeal of Best Homes DDJ, LLC, the Appellants are Authority rate/fee-payers.  Some of those Appellants, including the lead Appellant, Best Homes DDJ, LLC, have removed itself from the litigation since the filing of the initial case.  On January 17, 2018 (and later, in an amended action), Appellants filed the case in the trial court seeking injunctive relief from the Authority’s new stormwater user fee.  In their complaint, Appellants claimed that the Authority was assessing Appellants an illegal tax for stormwater management, repairs, and maintenance. Specifically, Appellants’ allegations included:

  1. The Authority was improperly formed because the Authority was created in October 2016, and the first public meeting was not held until February 2017, approximately four months passed before the Authority even attempted to comply with Section 704 of the Sunshine Act;
  2. The Authority was improperly run;
  3. The services for which the Authority are charging are duplicative of the services performed by the Delaware County Regional Water Authority (“DELCORA”);
  4. The monies the Authority is assessing City of Chester property owners are an illegal tax;
  5. The Authority’s services are duplicative, unnecessary, and unreasonable;
  6. The Authority’s fee scheme is not reasonably related to the services provided; and
  7. The fee scheme is unreasonable and arbitrary.

On December 13, 2019, the trial court denied the request for injunctive relief, later denied Appellants’ Post-Trial Motions, and then Appellants filed an appeal to the Commonwealth Court of Pennsylvania.

The following issues were raised on appeal:

  1. Whether the trial court erred or abused its discretion by denying Appellants’ Post-Trial Motion;
  2. Whether the trial court erred or abused its discretion by denying Appellants’ Petition;
  3. Whether the trial court erred or abused its discretion by concluding that the Authority was properly formed and did not violate Section 704 of the Sunshine Act or Sections 5607(b)(2) and (d)(9) of the Municipality Authorities Act (“MAA”);
  4. Whether the trial court erred or abused its discretion by basing its determination solely on the finding that the Authority did not violate the MAA; and
  5. Whether the trial court erred or abused its discretion by failing to enter any findings of fact or conclusions of law regarding the additional issues of law and fact on which Appellants’ case was predicated.

Judge Covey affirmed the trial court’s decision for the following reasonings:

For Issues One and Two, Appellants failed to develop the issues in the argument section of its brief, which constituted waiver of the issues.

For Issue Three, the trial court did not err or abuse its discretion by concluding that the Authority did not violate Section 704 of the Sunshine Act or Sections 5607(b)(2) and (d)(9) of the MAA, for the following reasons:

Sunshine Act Claim

Section 704 of the Sunshine Act requires:

Official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under [S]ection[s] 707 (relating to exceptions to open meetings), 708 (relating to executive sessions)[,] or 712 (relating to General Assembly meetings covered) [of the Sunshine Act, 65 Pa.C.S. §§ 707, 708, 712].

65 Pa.C.S. § 704.  As noted above, Appellants assert that because the Authority was created in October 2016, and the first public meeting was not held until February 2017, approximately four months passed before the Authority even attempted to comply with Section 704 of the Sunshine Act.  However, Section 713 of the Sunshine Act provides:

A legal challenge under this chapter shall be filed within 30 days from the date of a meeting which is open, or within 30 days from the discovery of any action that occurred at a meeting which was not open at which this chapter was violated, provided that, in the case of a meeting which was not open, no legal challenge may be commenced more than one year from the date of said meeting. The court may enjoin any challenged action until a judicial determination of the legality of the meeting at which the action was adopted is reached. Should the court determine that the meeting did not meet the requirements of this chapter, it may in its discretion find that any or all official action taken at the meeting shall be invalid. Should the court determine that the meeting met the requirements of this chapter, all official action taken at the meeting shall be fully effective.

65 Pa.C.S. § 713.

Moreover, Judge Covey found that there is no record evidence establishing the existence of closed Authority meetings, let alone whether official action was taken, and/or whether the action was cured by later open meetings. Notwithstanding, because Appellants allege that the private meetings occurred before October 2016, i.e., the date the letters of incorporation were received, and Appellants did not file the Complaint until January 17, 2018, Appellant’s claims as to the Authority’s Sunshine Act violations are beyond the required one-year filing period, and thus, untimely.

Section 5607(b)(2) of the MAA

Section 5607(b) of the MAA provides, in relevant part:

Limitations.–This section is subject to the following limitations:

. . .

 (2) The purpose and intent of this chapter being to benefit the people of the Commonwealth by, among other things, increasing their commerce, health, safety and prosperity and not to unnecessarily burden or interfere with existing business by the establishment of competitive enterprises, none of the powers granted by this chapter shall be exercised in the construction, financing, improvement, maintenance, extension or operation of any project or projects or providing financing for insurance reserves which in whole or in part shall duplicate or compete with existing enterprises serving substantially the same purposes. . . .

63 Pa.C.S. § 5607(b).

The Appellants argue the Authority’s services duplicate and compete with DELCORA’s services in violation with this section of the MAA.  That argument, however, according to the court, is without merit.  DELCORA’s Director of Operations and Maintenance testified that DELCORA has absolutely no control over Chester’s stormwater inlets and pipes into the combined sewer system, and further that DELCORA has absolutely no control over any MS4 stormwater infrastructure whatsoever.  The trial court concluded, as a result, that the Authority’s services do not duplicate or interfere with DELCORA’s services.  Thus, no error by the trial court.

Section 5607(d)(9) of the MAA:

Section 5607(d) of the MAA provides, in relative part:

Every authority may exercise all powers necessary or convenient for the carrying out of the purposes set forth in this section, including, but without limiting the generality of the foregoing,  the following rights and powers:

 . . . .

 (9) To fix, alter, charge and collect rates and other charges in the area served by its facilities at reasonable and uniform rates to be determined exclusively by it for the purpose of providing for the payment of the expenses of the authority, the construction, improvement, repair, maintenance and operation of its facilities and properties . . . . Any person questioning the reasonableness or uniformity of a rate fixed by an authority or the adequacy, safety and reasonableness of the authority’s services, including extensions thereof, may bring suit against the authority in the court of common pleas of the county where the project is located . . . .

 53 Pa.C.S. § 5607(d).  When the reasonableness of a fee is challenged, Pennsylvania courts have determined that the party challenging the fee bears the burden of proving its unreasonable.  Appellants contend that the Authority failed to adopt a proper budget and the Authority failed to reveal any of the analytical process or computations that support the Authority’s final fee determination.  This argument, however, failed, according to the court, because the Authority had an expert testify at trial as to how the Authority initiates the implementation of its fees and how the fees are reasonably related to services or projects that the Authority will produce and execute.  The trial court found the expert’s testimony credible and the Authority’s fees, thus, were reasonable.  Accordingly, the Commonwealth Court found no errors on trial court’s part.

In addition, Appellants argued that the Authority’s assessed fee is an impermissible tax. Specifically, Appellants contend that the charges are a tax because it generates revenue and are a burden placed upon property owners to raise money for public purposes.  Appellants assert that the Authority has raised and used revenue for projects unrelated to stormwater.  Judge Covey reasoned that the Commonwealth Court has held:

[I]n determining whether a levy under a municipal ordinance is a tax or a true fee, “[t]he common distinction is that taxes are revenue-producing measures authorized under the taxing power of government; while fees are regulatory measures intended to cover the cost of administering a regulatory scheme authorized under the police power of government.”

 Rizzo v. City of Phila., 668 A.2d 236, 237 (Pa. Cmwlth. 1995) quoting City of Phila. v. Se. Pa. Transp. Auth., 303 A.2d 247, 251 (Pa. Cmwlth. 1973).  Moreover, Judge Covey cited the reasoning in Borough of W. Chester v. Pa. State Sys. of Higher Educ.:

whether the [Authority’s] [s]tormwater [c]harge constitutes a tax or a fee depends upon whether the [s]tormwater [s]ystem provides a discrete benefit to [Appellants], as opposed to generally aiding the environment and the public at large; whether the value of the [s]tormwater [s]ystem to [Appellants] is reasonably proportional to the amount of the stormwater charge; and, apart from general operation, maintenance and repair of the [s]tormwater [s]ystem, how exactly [] the [Authority] utilize[s] the funds generated by the [s]tormwater [c]harge.

Pa. Cmwlth. No. 260 M.D. 2018, filed July 15, 2019, slip op. at 11.  And the reasoning from the Rizzo case, which provided:  “[T]he party challenging a fee on the ground that it constitutes an unlawful tax bears the initial burden of establishing that the fees were not in fact used to reimburse the municipality for . . . providing a service.” 668 A.2d at 237.

Judge Covey found no record evidence that the Authority’s collected fees were unrelated to stormwater.  Furthermore, Judge Covey found that the Appellants did not establish that the Authority does not provide a discrete benefit to Appellants or that the value of the Authority to Appellants is not reasonably proportional to the amount of the fees.  Accordingly, Appellants failed to meet its burden of proving the fees are, in actuality, revenue-raising taxes rather than valid fees.  Thus, the trial court did not err.

For Issues Four and Five, the trial court did not err or abuse its discretion by basing its determination solely on the finding that the Authority did not violate the MAA or by failing to enter any findings of fact or conclusions of law regarding the additional issues of law and fact on which Appellants’ case was predicated.  This is so because the trial court concluded that Appellants did not establish a clear right to relief since they failed to meet their burden of proving the allegations set forth in their complaint.  As a result, given that the trial court clearly explained the reasons for its conclusion in its opinion, there was no reason for the trial court to enter any findings of fact or conclusions of law regarding the additional issues.

In conclusion, the Authority’s stormwater user fees were found to be acceptable.  Appeal of Best Homes DDJ, LLC makes it clear that it will take significant fact evidence in order to overturn a new stormwater user fee.  It is incumbent upon the rate payer to develop the facts, which in this specific case, are nearly non-existent.  Reasonableness, in comparison to the benefits gained from the ratepayer will be critical for the court, as will proportionality.  Finally, courts will be looking to see whether the new fee is revenue-raising, which would make it more likely a tax.

If you have questions about Appeal of Best Homes DDJ, LLC or matters related to the new implementations of stormwater fees and stormwater authorities, please contact Ryan Gonder (717-237-5340 or rgonder@mcneeslaw.com) or any member of the McNees State and Local Tax team.

There has been a flurry of litigation in recent years involving taxpayer challenges to the constitutionality of Pennsylvania’s statutory cap on net loss carryover (“NOL”) deductions for tax years prior to 2017.  First came the Pennsylvania Supreme Court’s decision in Nextel Communications of the Mid-Atlantic, Inc., 171 A.3d 682 (Pa. 2017), in which the Court ruled that the Commonwealth’s 2007 NOL provision – which limited the NOL deduction to 12.5% of taxable income or $3 million, whichever was greater – violated the Uniformity Clause of the Pennsylvania Constitution.  The flat dollar cap was found to be unconstitutional because one class of corporate taxpayers (those with taxable income of $3 million or less) could employ the NOL deduction to reduce their taxable income (and tax) to zero.  However, corporate taxpayers with income over the NOL dollar cap were entitled to offset only a portion of their taxable income for a given year through the NOL deduction, regardless of the amount of unused losses incurred in prior years that were otherwise available to be carried forward for Corporate Net Income Tax (“CNI”) purposes.  The Court in Nextel remedied the Uniformity Clause violation by severing the flat dollar portion of the NOL cap, but retaining the percentage limitation.  The end result was that Nextel did not receive a refund.

In the most recent litigation development, in General Motors Corporation v. Commonwealth, No. 12 MAP 2020 (Dec. 22, 2021), the Pennsylvania Supreme Court considered an appeal filed by General Motors Corporation challenging the constitutionality of the NOL cap in place for tax year 2001.  Both General Motors and the Commonwealth agreed that the dollar-based cap on NOL deductions for tax year 2001 violated the Uniformity Clause.  However, they disagreed on whether Nextel should be applied retroactively and, if so, on the proper remedy to be applied.  Unlike the 2007 tax year at issue in Nextel, when the NOL cap had both a flat-dollar and a percentage limitation, there was only a flat-dollar cap of $2 million in place during the tax year at issue in General Motors. The Court rejected the Commonwealth’s argument that the Nextel decision should apply only on a prospective basis because it established a new principle of law.  Instead, the Court determined that Nextel “‘steadfastly adhered’ to a century of case law interpreting the Uniformity Clause to invalidate tax ‘classifications based solely upon the quantity or value of the property being taxed.’”  Having concluded that Nextel applies retroactively, the Court had to consider the proper remedy to be applied to cure the constitutional violation.

Since the Court did not have the option of severing the flat dollar cap and leaving the percentage limitation in place, as it did in Nextel, its options for addressing the Uniformity Clause violation in General Motors were limited to severing only the flat-dollar cap, resulting in unlimited NOL deductions for taxpayers, or severing the NOL deduction in its entirety, resulting in no NOL deductions.  The Court concluded that severance of the NOL deduction in its entirety was more consistent with legislative intent, as evidenced by the history of the NOL deduction provision.  Accordingly, the Court reversed the Commonwealth Court’s decision severing only the flat-dollar cap, and instead severed the NOL deduction for the 2001 tax year in its entirety.

Notwithstanding the Court’s decision to strike the NOL deduction for the 2001 tax year, it ultimately awarded relief to General Motors on the basis that the Due Process Clause of the U.S. Constitution requires the Commonwealth to provide “meaningful backward-looking relief” to rectify the inequality suffered by General Motors in comparison to corporate taxpayers that were permitted to use the NOL deduction to offset all of their taxable income for 2001.  It is too late for the Commonwealth to remedy that inequality by assessing corporate taxpayers that previously utilized the 2001 NOL deduction to fully offset their Pennsylvania taxable income.  The Court therefore determined that the only way to equalize the actual tax positions of corporate taxpayers for tax year 2001is to refund the tax paid by General Motors as a result of the cap on its NOL deduction.  The Court affirmed the order of the Commonwealth Court to the extent it remanded the case to the Board of Finance and Revenue to recalculate General Motors’ 2001 CNI without capping its NOL deduction and to issue a refund based upon that recalculation.

The deadline for the Commonwealth to request review of the Pennsylvania Supreme Court’s decision in General Motors by the United States Supreme Court has not yet expired, so it is unclear whether this is a final decision.  In any event, unanswered questions remain that likely will be addressed in future Pennsylvania court decisions.  For example, Pennsylvania’s courts will be tasked with determining whether the Due Process Clause of the U.S. Constitution requires that unlimited NOL deductions be granted to taxpayers with pending appeals for tax years when the NOL cap included both dollar-based and percentage-based limitations.  That precise issue likely will be addressed in Alcatel-Lucent USA Inc. v. Commonwealth, No. 803 F.R. 2017, which involves the 2014 NOL provision.  Like the year at issue in Nextel, the 2014 provision included both a flat dollar cap and a percentage limitation.  The Commonwealth Court issued a decision in September 2021 in Alcatel-Lucent, holding that the Department of Revenue’s policy of applying Nextel only prospectively did not violate the state and Federal constitutions.  The Commonwealth Court also rejected the taxpayer’s arguments that it was entitled to relief under the Due Process Clause of the U.S. Constitution.  The taxpayer filed Exceptions to the Commonwealth Court’s initial decision and briefing on those Exceptions is ongoing.

Based on the rationale of the Pennsylvania Supreme Court’s decision in General Motors, it appears that the Commonwealth Court will be required to reconsider the analysis in its initial decision in Alcatel-Lucent.  First, the Pennsylvania Supreme Court determined in General Motors that Nextel applies retroactively, which is inconsistent with the Commonwealth Court’s initial decision in Alcatel-Lucent.  It remains to be seen whether the courts will determine that the Due Process Clause of the U.S. Constitution requires that Alcatel-Lucent be granted an unlimited NOL deduction for tax year 2014.  However, in General Motors, the Pennsylvania Supreme Court observed in a footnote that “Nextel did not present this Court with a robust due process argument based upon McKesson . . ., as does GM in the case at bar.”  And, Justice Saylor, in a dissenting opinion in General Motors noted that “the majority’s present due process analysis, if applied in Nextel, would seem to require a different result in that matter.”

We will provide additional updates as new developments occur.  If you have questions regarding these cases, please contact Sharon Paxton, Esquire (717-237-5393), or any member of the McNees State and Local Tax team.

Recently, in O’Donnell v. Allegheny County North Tax Collection Committee, et al., No. 8 WAP 2021 (Dec. 27, 2021), the Pennsylvania Supreme Court held that whistleblower payments constituted compensation subject to local earned income taxes.

In 2014, the taxpayer had filed an action alleging that his employer violated the federal False Claims Act (“FCA”).  After a “whistleblower,” such as the taxpayer, files an action under the FCA (known as a “qui tam action”), the government choses whether to pursue the claim, let the whistleblower pursue the claim, or seek dismissal of the claim.  Despite this control by the government, the FCA provides the whistleblower with “an interest in the lawsuit,” specifically, an entitlement to part of any settlement the government obtains in the action.    Thus, the whistleblower’s monetary incentive drives the initiation of the lawsuit.  Here, the taxpayer received an award equal to 16% of the settlement, amounting to $34,560,000, later the same year.

Later, in 2017, the tax collector for the School District and the Borough in which the taxpayer resided discovered that the taxpayer had not filed a local earned income tax return for 2014, and assessed him approximately $437,000 in tax, interest, penalties, and costs based on the award.

The School District and the Borough derive their authority to impose an earned income tax on their residents, such as the taxpayer, from the Local Tax Enabling Act (“LTEA”).  The LTEA defines “earned income” as “[t]he compensation as required to be reported to or as determined by the [Pennsylvania Department of Revenue] under section 303 of the . . . Tax Reform Code of 1971, and rules and regulations promulgated under that section.”

Section 303 defines “compensation” for state Personal Income Tax purposes, in relevant part, as:  “All salaries, wages, commissions, bonuses and incentive payments whether based on profits or otherwise, fees, tips, and similar remuneration received for services rendered whether directed or though and agent and whether in cash or in property . . . ”  72 P.S. § 7303(a)(1)(i).

In addition, the Department’s regulations provide, in relevant part:

Compensation includes items of remuneration received, directly or through an agent, in cash or in property, based on payroll periods or piecework, for services rendered as an employee or casual employee, agent or officer of an individual, partnership, business or nonprofit corporation, or government agency. These items include salaries, wages, commissions, bonuses, stock options, incentive payments, fees, tips, dismissal, termination or severance payments, early retirement incentive payments and other additional compensation contingent upon retirement, including payments in excess of the scheduled or customary salaries provided for those who are not terminating service, rewards, vacation and holiday pay, paid leaves of absence, payments for unused vacation or sick leave, tax assumed by the employer, or casual employer signing bonuses, amounts received under employee benefit plans and deferred compensation arrangements, and other remuneration received for services rendered.

61 Pa. Code 101.6(a) (emphasis added).

The question for the Supreme Court was whether the qui tam award was taxable in Pennsylvania as “compensation” under Section 303.  Qui tam awards are not explicitly listed in the statutory definition of “compensation.”  Therefore, the Court was required to determine whether the award fell within any of the other enumerated categories of compensation in the statute, which necessitated an analysis of qui tam actions and their purpose.  The Court noted that the FCA aims to prevent fraud upon the government by incentivizing private citizens to act “‘for the person and for the United States Government’ against the entity perpetrating the fraud.”  Thus, the Court concluded that qui tam awards fit within the listed category of “incentive payments.”  In a footnote to its decision, the Court also concluded that the award met the definition of compensation for “similar remuneration for services rendered,” as remuneration for the taxpayer’s services in providing useful information to the federal government about his employer’s fraud and for initiating the qui tam action.

Relying on the Department’s regulation — which states that compensation must be for “for services rendered as an employee or casual employee, agent or officer” — the Commonwealth Court had previously held that the taxpayer was required to be (but was not) an employee or agent of the federal government for the qui tam award to be taxable.  But the Supreme Court disagreed, holding that there is nothing in the plain language of the statutory definition of “compensation” suggesting that an employment nexus is a prerequisite for a payment to constitute compensation.  In fact, according to the Supreme Court, there are several categories of compensation mentioned in the statute that are routinely provided outside of an employment relationship, such as commissions, fees, and tips.  Moreover, contrary to the Commonwealth Court’s view, the Supreme Court concluded that the regulation does not limit the definition of compensation to require an employment relationship, but rather provides a non-exhaustive, illustrative list of common items that the Department believes qualify as compensation.  In any event, the Supreme Court noted that a regulation cannot conflict with a statute and the statute here clearly did not require the existence of an employment relationship.

The Supreme Court further held — contrary to a dissenting opinion — that, although a whistleblower possesses a private interest in a qui tam action, the qui tam award nevertheless satisfies the statutory requirement that a compensation is for “services rendered,” because a whistleblower renders a service to the government as its representative in bringing the action.

This result is unsurprising, because, as the Supreme Court ultimately noted, the federal government and almost all other states tax qui tam awards.  That said, Pennsylvania’s personal income tax is unique in that it taxes eight enumerated classes of income, rather than simply taxing all federal taxable income.  Consequently, there is some additional room for interpretation when determining what is subject to tax in Pennsylvania.

If you have questions about this Decision or any state tax matter, please feel free to contact Adam Koelsch (717-237-5305) or any member of the McNees State and Local Tax team.

Wayne County is currently going through a countywide reassessment whereby the county is going to reassess ever property within its border.  The last time Wayne County performed a countywide reassessment was in 2004.  Wayne County started the countywide reassessment process back in January 2021 and has since held public meetings, mailed out data mailers to property owners and analyzed the data. Now one year later, the County is gearing up to mail out tentative new assessed values to all property owners in March. Property owners and lessees who pay the real estate taxes will have the opportunity to request an informal review of the tentative values in April and May.  After the informal appeal process, Wayne County will mail 2023 Assessment Notices to all property owners containing the final assessed values before July 1, 2022.  Property owners and lessees who pay the real estate taxes will then have 40-days from the mailing date of the 2023 Assessment Notice to file formal appeals with the Wayne County Board of Assessment Appeals (“Board”) if they don’t agree with the new assessed value.  All formal appeals shall be heard and acted upon by the Board not later than October 31, 2022.  The new assessed values will be effective January 1, 2023 for county and municipal real estate taxes and July 1, 2023 for school district real estate taxes.

Commercial property owners or lessees of commercial property in Wayne County should contact our office to speak with our experienced assessment law attorneys, Paul Morcom (717-237-5364), Adam Koelsch (717-237-5305), or Ryan Gonder (717-237-5340) if they have any questions pertaining to the countywide assessment appeal process or how to determine if the new assessed value is correct.  Our assessment law attorneys have successfully appealed countywide reassessments in Adams County, Allegheny County, Bedford County, Blair County, Cumberland County, Delaware County, Lancaster County, Lehigh County,  Luzerne County, Monroe County, Philadelphia County and Washington County.

The deadline for filing a real estate tax assessment appeal for the 2022 tax year is fast approaching in Allegheny County.  The deadline is March 31, 2022.  Property owners of hotels, restaurants, bars or any property type that has been affected by COVID 19 should be taking a close look at their assessed values for 2022 and possibly filing assessment appeals for the 2022 tax year.   Allegheny County is the only county out of the 67 counties in Pennsylvania whereby you appeal the assessed value when the assessed value is already effective.

If you have any questions about appealing your real property in Allegheny County, please contact Paul Morcom (717-237-5364).

On February 1, 2022, the Pennsylvania Supreme Court granted a Petition for Allowance of Appeal in GM Berkshire Hills LLC and GM Oberlin Berkshire Hills LLC v. Berks County Board of Assessment and Wilson School District, 16 MAP 2022.  The issues are limited to the following:

a.  Do a school district’s selective real estate tax assessment appeals violate the Uniformity Clause of the Pennsylvania Constitution when the school district chooses only recently-sold properties for appeal, leaving most properties in the district at outdated base-year values?

b.  Do a school district’s selective real estate tax assessment appeals violate the Uniformity Clause of the Pennsylvania Constitution when the school district chooses only certain recently-sold properties that would generate a minimum amount of additional tax revenue for appeal, leaving most properties in the district at outdated base-year values?

It will be interesting to see what the Court does with these issues, especially in light of Chief Justice Saylor’s recent retirement and the addition of Justice Brobson.  Chief Justice Saylor wrote the landmark Valley Forge Towers opinion in 2017 that gave property owners a leg to stand on when fighting the selection process of properties in school district initiated appeals.  Justice Brobson is a Republican that is coming right from being the President Judge at Commonwealth Court, a court that has consistently sided with school district’s selection processes before and after Valley Forge Towers. Stay tuned to see how this one plays out.

On September 13, 2021, the Commonwealth Court held in Alcatel-Lucent USA Inc. v. Com., No. 803 F.R. 2017 (“Alcatel”), that the Pennsylvania Department of Revenue’s policy of applying the Pennsylvania Supreme Court’s landmark decision in Nextel Communications of the Mid-Atlantic, Inc. v. Com., 171 A.3d 682 (Pa. Oct. 18, 2017), only prospectively did not violate the state and federal constitutions.

Before 2017, the Commonwealth’s Corporate Net Income Tax statute had limited a taxpayer’s net operating loss deduction to the greater of a flat cap amount of the taxpayer’s taxable income or a percentage of the taxpayer’s apportioned income, both of which varied by year.  For tax year 2007, the limit was the greater of 12.5% of taxable income or $3 million.  In Nextel, the taxpayer argued that the statute discriminated against corporations with more than $3 million in taxable income (“large corporations”), because taxpayers with $3 million or less in taxable income (“small corporations”) paid no tax while large corporations could reduce their taxes by only 12.5%.  The Supreme Court held that the flat cap violated the Uniformity Clause of the Pennsylvania Constitution but it preserved the percentage cap.  Subsequently, the Department issued Corporation Tax Bulletin 2018-02, stating that it would not apply the Nextel decision to taxable years beginning prior to January 1, 2017.

In Alcatel, the taxpayer — who, in 2014, had applied the percentage cap and paid tax on its remaining income — sought a refund, arguing that the Department’s policy was unconstitutional because it continued to apply the percentage cap to large corporations before 2017 but not to the small corporations who had originally applied the now-unconstitutional flat cap.  The taxpayer argued that it was therefore entitled to an unlimited deduction for 2014, just as the small corporations had effectively obtained.

According to the taxpayer, the Department’s policy violated the Uniformity Clause of the Pennsylvania Constitution because it systematically applied the percentage cap to large corporations but not to small ones.  Thus, the question was whether the Department had been under a duty to retroactively apply Nextel to recalculate the deductions of small corporations under the percentage cap.  The Commonwealth Court held that, under the three-pronged test of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), Nextel did not apply retroactively.  Under that test, a court may apply a decision retroactively if:  (1) the decision does not establish a new principle of law; (2) retroactive application will further the operation of the decision; and (3) the “relevant equities” are in favor of retroactive application.  The Court agreed that, under the first prong, Nextel did not establish a new principal of law, because it had relied on long-standing legal precedent.  But the Court concluded that, under the second prong, applying Nextel to retroactively remove the percentage cap on large corporations would not further that decision, which had explicitly upheld the percentage cap.  The Court further concluded that, under the third prong, the prospect of “[r]etroactively assessing thousands of taxpayers that justifiably relied upon the legality of the flat-dollar deduction prior to the Nextel decision would produce a substantially inequitable result.”  The Court distinguished its decision in General Motors Corp. v. Com., 222 A.3d 454 (Pa. Cmwlth. 2019), which had retroactively applied Nextel under the Chevron test, on the basis that the deduction for the tax year in that case (tax year 2001) was limited to the unconstitutional flat cap and not the percentage cap upheld in Nextel.  Accordingly, the Court held the Department was not required to apply Nextel retroactively and therefore its policy did not violate the Uniformity Clause.

In addition, the Court held that the Department’s policy did not violate the federal Due Process Clause, which protects against the deprivation of property without due process of law, because the taxpayer had merely paid the correct tax due under the (constitutional) percentage cap and was therefore not deprived of property.  The Court further held that the taxpayer did not suffer any discrimination prohibited under the federal Equal Protection Clause because the Supreme Court in Nextel had eliminated the relevant discrimination by removing the flat cap.  Finally, the Court held that the taxpayer had received its “remedy by due course of law” as required by the Remedies Clause of the Pennsylvania Constitution because it had exercised its right to pursue its refund claim at the administrative boards and in the courts (despite the fact that the claim was ultimately unsuccessful).

If your company has received an assessment for Pennsylvania Corporate Net Income Tax or is pursuing a refund, please contact one of our state and local tax attorneys – Adam Koelsch (717-237-5305), Sharon Paxton (717-237-5393) or Paul Morcom (717-237-5364).