This past summer under the Inflation Reduction Act, Congress enacted new Internal Revenue Code (“Code”) Section 4501, which imposes an excise tax on certain corporate redemptions or repurchases by a corporation of its own stock. Essentially, Section 4501 only applies to “Covered Corporations”, which more or less translates to corporations whose stock is publicly traded. The excise tax is calculated at 1% of the fair market value of the stock repurchased (the “Excise Tax”).

Interestingly, the Excise Tax is not limited solely to redemptions under Section 317(b) of the Code. Rather, the Excise Tax also applies to “transactions economically similar” to Section 317(b) redemptions and purchases from special affiliated corporations. Given the broad wording in the statute, many practitioners were concerned as to whether this new Excise Tax would apply to reorganizations under Section 368 or spin-offs under Section 355. The short answer? It depends.

Thankfully, on December 27, the IRS issued Notice 2023-02 (the “Notice”), which not only confirms the U.S. Treasury Department intends to issue proposed regulations under Section 4501, but also provides initial guidance on the Excise Tax’s application to other transactions. While the Notice offers some much-welcomed clarification, the answer, however, will vary on a case-by-case basis, even when the same Code section applies to two different transactions.

In the context of certain tax-free reorganizations and spins, corporations who furnish cash to shareholders in exchange for fractional shares will not trigger the Excise Tax, so long as: 1) the shareholder receiving the cash did not separately bargain for the consideration, 2) the payment was carried out for the sole purpose of administrative convenience, and 3) the amount of cash received does not exceed the value of one full share of stock. The Notice also makes clear that the new Excise Tax does not apply to deemed redemptions as well, such as those occurring pursuant to section 304 transactions. Liquidations under sections 331 and 332, generally will not be regarded as repurchases, so long as it is a complete liquidation.

However, as mentioned above, the statute also provides that the excise tax can also apply to transactions similar in economic substance to a redemption. Section 3.04(a) of the Notice gives what is (for now) an exhaustive list of such transactions:

  • Acquisitive reorganizations where the target corporation’s shareholders exchange their target corporation stock pursuant to the reorganization;
  • Certain recapitalizations under Section 368(a)(1)(E);
  • F reorganizations where the transferor corporation’s shareholders transfer their stock back to the corporation;
  • Split offs where the distributing corporation exchanges shares of controlled or boot with its shareholders in exchange for its own stock; and
  • Liquidations that are not complete liquidations as defined in the Section 331 regulations.

As with any initial guidance, the Notice may only be relied upon until the Treasury issues the proposed Section 4501 regulations. Practitioners with publicly traded clients contemplating transactions economically similar to a repurchase but not yet on the list above, may want to consider carrying them out before the new regulations are promulgated in the event the Treasury expands its list to other economically similar transactions.

If you have any questions, please feel free to contact Justin Abodalo (717-237-5362).

On September 27, 2022, the Pennsylvania Department of Revenue (“DOR”) issued a revision of Personal Income Tax Bulletin 2006-07 (the “Bulletin”), which confirms that recent Pennsylvania legislation reversed longstanding caselaw that disallowed deferral of gain recognition for like-kind exchanges. Under Act 53 of 2022, the Commonwealth now conforms with section 1031 of the Internal Revenue Code (“IRC 1031”) for Pennsylvania income tax purposes.

Under general income tax principles, when property is sold for a profit, the seller must pay tax on the gain recognized from the sale. IRC 1031 provides an exception to this general principle, however, when two parties exchange similar or “like-kind” real property that is used for business or held as an investment. For example, if Party A owns Building 1 and Party B owns Building 2, rather than selling the buildings and having to pay tax the year the sales occur, A and B can exchange the buildings to one another and defer the gain recognition and tax owed.

The DOR’s Bulletin provides that like-kind exchanges will now be given similar treatment in Pennsylvania for tax years beginning after December 31, 2022.

However, the Bulletin also makes clear that this deferral of gain applies only in the context of income tax. Pennsylvania taxpayers who engage in like-kind exchanges after 2022 will still be required to pay sales and use tax and transfer taxes, as applicable, for each transfer.

This is noteworthy because under IRC 1031, a like-kind exchange does not have to occur simultaneously if certain requirements are met (“Deferred Exchanges”). Said differently, taxpayers can acquire the replacement party before divesting the relinquished property, and vice versa, yet still qualify for IRC 1031’s tax-deferred treatment. Sometimes an additional party, such as a Qualified Intermediary or Exchange Accommodation Titleholder, can help facilitate like-kind exchanges (a “Facilitating Party”).

Use of Deferred Exchanges, Facilitating Parties, or both can be very useful for taxpayers interested in divesting old property and acquiring new property via a like-kind exchange, but cannot find a counterparty to conduct an exchange with.

Returning to our example, with A and B. Suppose A was not interested in Building 2, but B wanted to acquire Building 1. Through careful planning and implementation, A and B could conduct a Deferred Exchange with a Facilitating Party (“FP”) where A and B divest Buildings 1 and 2, respectively, to FP. Then, FP conveys Building 1 to B. FP continues to hold title of Building 2 until A finds desirable replacement property. This can still qualify as a like-kind exchange under IRC 1031, and now, the Bulletin.

Now suppose C owns Building 3 but wants to divest it in order to acquire Building 2. Under the right circumstances, FP can help structure an exchange where C transfers Building 3 to FP and FP transfers Building 2 to C, all the while still qualifying for tax-deferred treatment under IRC 1031. Also, if A wanted to acquire Building 3 from FP, this could possibly qualify as well upon satisfying particular requirements.

As mentioned above, Pennsylvania conforms to IRC 1031 only for income tax purposes. The Bulletin explains sales and use taxes and transfer taxes would still apply to scenarios with multiple transfers, such as the one described above. This further necessitates the use of careful planning with skilled professionals for anyone who is contemplating a like-kind exchange.

If you have any questions regarding like-kind exchanges for Pennsylvania income tax purposes, please contact any member of the McNees State and Local tax team to discuss.

In In Re: Appeal of the Coatesville Area S.D., et al., Nos.1130 & 1161 C.D. 2018 (Pa. Commw. Ct. Aug. 19, 2022), the Commonwealth Court decided cross-appeals of a taxing school district and a property owner regarding the owner’s entitlement to an exemption from real estate taxes as an institution of purely public charity on a parcel containing a preserved historic building.

The parcel at issue contained a 120-year-old building that originally served as the corporate headquarters for a steel company, which was the first producer of boiler plate in the United States.  The current owner, Huston Properties, Inc., is a 501(c)(2) non-profit corporation, wholly owned by a 501(c)(3) charitable trust, that was organized and operated “exclusively to hold property, collect income therefrom, and turn the entire income, less expenses, over to the . . . [t]rust . . . ,” which would receive all funds from the owner if it were liquidated.  The owner had received the property — which was entered in the National Register of Historic Places and located in a locally recognized historic district — under a deed restriction that the property “be used as a site of an office building and otherwise only for purposes consistent with the preservation and conservation of said tract of land as a historic structure.”  The owner had adhered to those restrictions.  The owner’s expenses on the property consistently exceeded its income by a yearly average of $39,000, with rents from tenants not covering operating expenses, and therefore requiring subsidies from the trust.  The tenants consisted of for-profit and non-profit entities (including a museum and a community band), with some of the non-profits paying only nominal or no rent.  The nonprofits rented approximately 89% of the usable space in the building.  All revenues received were used for the maintenance and preservation of the property.

The owner had applied for the purely public charity exemption to the assessment board, which granted a partial exemption of 72%.  The school district and the city appealed to the trial court, challenging the partial exemption.  A complicated series of appeals and remands followed, including an appeal on a procedural issue to the Pennsylvania Supreme Court, with the matter eventually returning to the Commonwealth Court on cross-appeals between the school district and the owner.  There, the school district argued that the trial court erred in concluding that:  (1) owner did not satisfy the requirements to be considered an institution of purely public charity set forth in Hospital Utilization Project v. Com., 487 A.2d 1306 (Pa. 1985) (“HUP”) and 10 P.S. § 375 (“Act 55”); (2) the property was precluded from a charitable tax exemption under the Consolidated County Assessment Law, 53 P.S. § 8812(b)(1)-(2); and (3) the record did not support a 72% partial exemption on the property.  The owner merely argued that it was entitled to a full (100%) charitable exemption on the property.

The Commonwealth Court held that the owner satisfied all four of the disputed prongs of the overlapping HUP/Act 55 tests.

First, the Court concluded that the owner “advanced a charitable purpose.”  The owner had preserved and maintained the building as a historic structure, which, contrary to the school district’s argument, is a purpose recognized as important and beneficial to the public and advances educational, moral, and social objective under the Environmental Rights Amendment (Pa. Const. art. I, § 27) (ERA) and the Pennsylvania History Code, 37 Pa.C.S. § 102.  Furthermore, contrary to the school district’s argument, the owner’s purpose was not to generate income for the trust as an unrelated business entity, because the deed restrictions required the building to be used consistent with is preservation as a historic structure, and because the property was consistently operated at a loss, requiring subsidies from the trust.

Second, the Court concluded that the owner “[d]onated or renders gratuitously a substantial portion of its services,” by providing for the preservation of a historic structure at a consistent loss.  Contrary to the school district’s argument, the Court concluded that nothing in Act 55 requires that goods and services be “tangible” to determine whether a substantial portion of them have been donated or gratuitously rendered.

Third, the Court concluded that the owner “benefitted a substantial and indefinite class of persons who are legitimate subjects of charity.”  The property was accessible to members of the general public through a museum and a community band, and its historic and architectural features could be viewed and appreciated by the general public.  Contrary to the school district’s argument, nothing required that the tenants be legitimate subjects of charity or that the entire property be open to entry by the public in order to qualify.

Fourth, and lastly, the Court concluded that the owner “relieved the government of some burden.”  Relying on Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, 714 A.2d 397 (Pa. 1998), the Court recognized that a government burden may be either “obligatory or discretionary in origin,” and that the Commonwealth had voluntarily assumed the burden of preserving historic structures, as evidenced by the rights to “preservation of the natural, scenic, historic and esthetic values of the environment” in the ERA and the legislative policies for mandating and funding historic preservation in the Pennsylvania History Code.

The Court also concluded that the property was not precluded from a charitable tax exemption under the Consolidated County Assessment Law.  The property satisfied 53 P.S. § 8812(b)(1) — allowing exemption, except for property from which any income or revenue is derived other than from recipients of the bounty of the institution or charity — because the rent-paying tenants benefited from the owner’s preservation activities, in that the rents were insufficient to cover the costs to maintaining the property, which were subsidized by the trust.  The property also satisfied 53 P.S. § 8812(b)(2) — requiring actual and regular use by the owner — because the record showed that the owner maintained its office in the building.

Finally, the Court concluded that the property should be 100% exempt because, just as in Alliance Home of Carlisle v. Board of Assessment Appeals, 919 A.2d 206 (Pa. 2007), the income-producing portion of the property subsidized the charitable component, in that the rents offset some of the expense of preserving the property and the property was operated at a deficit.

This Decision represents an example of the more liberal interpretation the Commonwealth Court has given to public charity exemption for so-called “cultural institutions” than the school districts have been willing to concede.

If you have any 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.

Governor Wolf and other Pennsylvania lawmakers recently passed the state budget for FY22-23 (the “Budget”). Coming in at $45.2 billion, the negotiations entailed to finalize the Budget appear to be worth the effort by having the best of both worlds- increased revenue placing Pennsylvania in a strong fiscal position without having to increase any taxes.

In fact, as part of the Budget’s tax policy, Pennsylvania is lowering its corporate net income tax (“CNIT”) rate from 9.99% to 8.99% for the 2023 tax year. From there, the CNIT rate will continue to decrease by 0.5% each year until the CNIT reaches a baseline 4.99% rate in 2031.

This phased reduction is a change welcomed by both sides of the aisle, with the hope that Pennsylvania will become more attractive for businesses. Comparatively, the current 9.99% CNIT is one of the highest in the country. Set against Pennsylvania’s neighboring states- except for Ohio since it has no corporate income tax- New York, New Jersey, and Maryland, have current corporate tax rates of 7.25%, 11.5% and 8.25%, respectively. It stands to reason that the 4.99% rate by 2031 has the potential to incentivize more commercial activity in Pennsylvania.

By increasing revenue for Pennsylvania while simultaneously lowering the CNIT and not increasing individual income taxes or the sales and use tax, the Budget’s tax reforms might seem almost magical at first glance. However, this is not the case, for two reasons.

First, Pennsylvania is widening the scope of income sourced to Pennsylvania via intangible assets.  The Commonwealth will now cast a wider net on intangibles in general by pivoting from the current Cost-of-Performance method sourcing, to Market-based sourcing for tax years beginning after January 1, 2023. The implications of this transition are too numerous to discuss at length here and the DOR has been specifically instructed to draft new regulations to implement this new tax base. Essentially, the difference between the two methods is implied in the names. Cost-of-Performance looks to where the services are performed whereas the Market method looks to the location of the customers.

Second, even though the CNIT rate is lower, the threshold for corporations becoming subject to the CNIT and creating nexus within Pennsylvania has become easier. Bolstered by the U.S. Supreme Court’s Wayfair decision, corporations with sales in Pennsylvania exceeding a $500,000 threshold are now subject to the CNIT, irrespective of whether or not the corporation has any physical presence within the Commonwealth.

It is easy to see how the two prongs work hand-in-hand together to expand the tax base- customers purchasing intangible assets for customers within Pennsylvania as opposed to intangibles created in Pennsylvania casts a wider net, pulling non-Pennsylvania based corporations in closer to establish nexus with a lower dollar benchmark.

If you have any questions about Pennsylvania’s budget or any Pennsylvania state tax matter, please feel free to contact any member of the McNees State and Local tax team.

 

 

 

With historical drops in common level ratios throughout Pennsylvania’s 67 counties from last year to this year, commercial or industrial property owners should be reviewing their assessed values for potential reductions for the 2023 tax year.

The annual assessment appeal deadline of August 1, 2022 for assessed values effective for tax year January 1, 2023 is quickly approaching for the following Pennsylvania Counties:

Adams, Bucks, Butler, Cambria, Chester, Dauphin, Erie, Fayette, Franklin, Indiana,  Lackawanna, Lancaster, Lawrence, Lehigh, Luzerne, Monroe, Montgomery, Northampton and York.

The annual assessment appeal deadline of September 1, 2022 for assessed values effective for tax year January 1, 2023 is on the horizon for the following Pennsylvania Counties:

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

There are a few oddball counties that have to be different and thus the annual assessment appeal deadline for Berks County is August 15, 2022 and Wyoming County is August 31, 2022.  Philadelphia County is not a specific date, but instead the annual appeal deadline is the first Monday in October, which is the 3rd 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 assessed values effective for tax year January 1, 2023 in Allegheny County is March 31, 2023.

Wayne County is going through a countywide reassessment, effective for January 1, 2023 and thus all property owners in Wayne County will have 40-days to file a formal appeal with the Wayne County Board of Assessment Appeals from the mailing date on the Notice of Assessment stating the new assessed value effective for January 1, 2023.

Each county has its own separate set of local rules pertaining to assessment appeals that need to be navigated in order to successfully file an annual assessment appeal.  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 Paul Morcom at 717-237-5364 to determine if an appeal is warranted for tax year 2023.

This past May, the Pennsylvania Department of Revenue issued REV-717, an updated guide for retailers on the Commonwealth’s State and Local Sales, Use and Hotel Occupancy Tax.

Interestingly, the portion of REV-717 discussing computer hardware and software specifically enumerated non-fungible tokens (“NFTs”) as being subject to Pennsylvania’s sales and use tax.

NFTs have recently grown in popularity due to publicity from high profile purchases by celebrities like Steph Curry and Eminem. NFTs are essentially digital assets that can consist of anything from art, to music, or videos, which can then be financially secured using the blockchain system, similar to cryptocurrencies such as Bitcoin. As the name suggests, NFTs are usually unique, one-of-a-kind items which generates their value.

As of today, several other states and jurisdictions are contemplating whether to have NFTs subject to their sales and use taxes, such as Washington and Puerto Rico. The Multistate Tax Commission and the Streamlined Sales Tax Governing Board are also considering whether NFTs should be classified as digital assets for sales tax purposes.

The trouble with taxation of NFTs, however, derives from their unique nature. By virtue of no two NFTs being the same, the tax treatment could also vary from NFT to NFT, depending on whether it is tangible, intangible, or some combination of the two. Simply stated, there may not be a “one size fits all” solution, and proper tax treatment may depend on the underlying asset of the NFT.

To make matters more complex, the IRS has yet to issue any guidance on the tax treatment of NFTs in any notices or bulletins, other than issue warnings of the money laundering risks NFTs pose due to using the anonymous blockchain system.

In short, if the popularity of NFTs is here to stay, then an interesting set of tax issues is likely to follow to determine the proper tax treatment of NFT sales, whether they occur in Pennsylvania or anywhere else on the earth.

If you have any questions about non-fungible tokens or any state tax matter, please feel free to contact Justin Abodalo (717-237-5362) or any member of the McNees State and Local tax team.

 

In Circle of Seasons Charter School v. Northwestern Lehigh School District, 273 A.3d 23 (Pa. Cmwlth. 2022), the Pennsylvania Commonwealth Court reversed the trial court decision, and the matter was remanded to the common pleas court to transfer the matter to the County of Lehigh Board of Assessment Appeals via a nunc pro tunc appeal in order to consider the merits of Circle of Seasons Charter School’s (“Circle of Seasons”) challenge to Lehigh County’s (“County”) assessment notices and the Northwestern Lehigh School District’s (“School District”) tax invoices.

In May of 2017, Circle of Seasons acquired two parcels of land from Penn State’s Lehigh Valley campus to be exclusively used for charter school activities. At the time of the purchase, the properties were tax exempt because they were part of the Lehigh Valley campus of Pennsylvania State University.  On or around June 5, 2017, County issued property assessment notices that revised the tax status of these properties from “non-taxable assessed” to “taxable assessed,” effective January 1, 2018.  The assessment notices were undated, but stated that any appeal of the assessment revision had to be filed by July 17, 2017 or an “annual appeal” could be filed by August 1, 2017.

In July of 2017, the School District issued two invoices to Circle of Seasons for the 2017 and 2018 tax years, totaling nearly $112,000. Circle of Seasons asserted the invoices were unlawful because the properties’ tax status did not change until January 1, 2018 and it never received a proper notice from the County revising the tax status of the properties because the notices were not dated, making it difficult to decipher the deadline to file an appeal of the assessments.

On June 15, 2018, Circle of Seasons refinanced the properties and at closing paid $125,000 for “delinquent taxes” to the School District. A month later Circle of Seasons filed an appeal to the County of Lehigh Board of Assessment Appeals (the “Board”).  A hearing was held before the Board on September 20, 2018 which agreed the properties were non-taxable effective June 1, 2019, but made no decision on the taxes due to be paid at the end of 2018.

On June 6, 2019, Circle of Seasons filed a formal demand for a refund with the School District. After the School District failed to respond, Circle of Seasons filed a complaint with the trial court on December 17, 2019 asserting the Tax Refund Law and unjust enrichment. The School District filed preliminary objections arguing that Circle of Friends failed to exhaust its statutory remedies under the Consolidated County Assessment Law and thus the trial court lacked subject matter jurisdiction over Circle of Seasons’ complaint.  The trial court agreed and dismissed the complaint with prejudice.

On appeal, the Commonwealth Court began its analysis with the statutory definition and purpose of charter schools and noted that real property used by a charter school for any purpose is exempt from all types of real estate tax and that once a charter school demonstrates it is using its property for purposes consistent with the charter school law, the burden of proof shifts to the school district to showcase otherwise.

The Commonwealth Court then proceeded to explain Pennsylvania’s Assessment Law and the Tax Refund Law.  Under these laws, a defective notice received does not automatically void the assessment. Rather, the aggrieved party has a right to a hearing.  In instances where the aggrieved party pays the taxes in dispute and subsequently seeks a refund, and if the school district refuses to refund the money paid, the right to a hearing converts to a right to file suit in the court of common pleas in the county the school district resides.

As applied to Circle of Seasons, the notices were defective because they were not dated, and the School District refused to refund the money paid for the 2017 and 2018 tax years, even though Circle of Seasons’ properties were deemed non-taxable in 2019.  The School District argued Circle of Seasons waived its right to challenge the defective notice because it paid the real estate taxes.  The Commonwealth Court held that the trial court erred in dismissing the action with prejudice and should have considered whether Circle of Seasons should have been able to file an appeal nunc pro tunc due to the County’s administrative error.

Due to the fact the notices were not dated, this gave rise to a level of administrative negligence on the County’s part that warranted a nunc pro tunc hearing.  As such, the proper resolution for the trial court was to transfer the matter to the appeals board, rather than dismiss it with prejudice. Accordingly, the Commonwealth Court reversed the trial court’s dismissal with prejudice and remanded to the trial court with specific directions to transfer the matter to the appeals board for the tax years in dispute.

The take away: Circle of Seasons serves as an important reminder to both taxpayers and taxing authorities alike. Administrative procedures are put in place to preserve taxpayers’ rights.  Whether sending an assessment or receiving one, it behooves one to be cognizant of administrative layouts to either avoid years of litigation or assert your rights, respectively, from the onset of a potential tax dispute.

 

On June 8, 2022, the Pennsylvania Supreme Court denied the City of Philadelphia’s (the “City”) Petition for Allowance of Appeal from the decision of the Commonwealth Court in Duffield House Assocs., L.P. v. City of Phila., 260 A.3d 329 (Pa. Cmwlth. 2021) (“Duffield House”).  In that case, the Commonwealth Court had affirmed the trial court’s order, striking of the property owners’ tax year 2018 real estate tax assessments as unconstitutional and ordering a refund of any tax increase over the prior year assessments.  The City claimed at trial, and on appeal, that it had not chosen to reassess the property owners’ properties because of their commercial nature — which would have violated the Uniformity Clause of the Pennsylvania Constitution, according to the Pennsylvania Supreme Court’s landmark holding in Valley Forge Towers Apts. N, LP v. Upper Merion Area Sch. Dist. & Keystone Realty Advisors, LLC, 163 A.3d 962 (Pa. 2017).  Rather, the City claimed that it has reassessed only commercial properties because ratio studies performed by the City’s Office of Property Assessment (“OPA”) showed that commercial properties were the “most underassessed” properties in the City and had been “grossly underassessed’ for several years.  Duffield House, 260 A.3d at 344.  But the evidence at trial established otherwise.  Id.  Expert testimony showed that “there was no gross disparity between the accuracy of assessments of commercial and non-commercial properties which would render the assessment of residential properties for 2018 unnecessary.”  Id.  In addition, the City’s own expert testified that the OPA’s ratio studies were “seriously flawed” and “unreliable.”  Id. 344-45.  The record was also replete with evidence — including official statements in public press releases — establishing that the City intentionally targeted commercial properties, and only commercial properties, for reassessment in tax year 2018.  Id.  345-46.  The Commonwealth Court concluded that the trial court had appropriately exercised its discretion in awarding refunds to the property owners.  Id.  346-48.  After the Supreme Court’s denial of the City’s Petition, the City no longer has any remaining avenue of appeal.  The City is now stuck having to pay substantial refunds of both real estate taxes and use and occupancy taxes, plus interest.

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.