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.

 

 

In a widely anticipated decision in the state tax world, the United States Supreme Court, in South Dakota v. Wayfair (June 21, 2018), has struck down the sales tax physical presence standard set forth in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), and National Bellas Hess, Inc. v. Department of Rev. of Ill., 386 U.S. 758 (1967). Under Quill, an out-of-state seller’s liability to collect and remit sales tax to the consumer’s state depended on whether the seller had a physical presence in the state. After Wayfair, there is no longer a physical presence standard.

 

In Wayfair, the underlying issue was a statute passed by South Dakota which required sellers that deliver more than $100,000 worth of goods or services into the state on an annual basis, or engage in 200 or more separate transactions for the delivery of goods and services into the state on an annual basis, to collect and remit sales tax. Top online retailers filed an action challenging the statute.

 

The Court, in a majority opinion authored by Justice Kennedy (and joined by Justices Thomas, Ginsburg, Alito and Gorsuch), found that the physical presence rule is unsound and incorrect. First, the Court found that the physical presence rule is not a necessary interpretation of the requirement that a state tax must be “applied to an activity with a substantial nexus with the taxing State.” Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977). Second, it found that Quill creates rather than resolves market distortions. Finally, the Court concluded that Quill imposes the sort of arbitrary, formalistic distinction that the Court’s modern Commerce Clause precedents disavow.

 

In the opinion, the Court noted that when the day-to-day functions of marketing and distribution in the modern economy are considered, it becomes evident that Quill’s physical presence rule is artificial, not just “at its edges,” Quill, 504 U.S. at 315, but in its entirety. Modern e-commerce, the Court reasoned, does not align analytically with a test that relies on the sort of physical presence defined in Quill. The Court concluded that it should not maintain a rule that ignores substantial virtual connections to the state.

 

On the policy front, the Court noted that the physical presence rule was an extraordinary imposition of the judiciary on the states’ authority to collect taxes and perform public functions. Bluntly, the Court stated that helping customers evade a lawful tax unfairly shifts the tax burden to customers who purchase items from an in-state seller. By giving online retailers an arbitrary advantage over their competitors who collect sales taxes, the Court reasoned, the physical presence rule has limited the states’ ability to seek long-term prosperity and has prevented market participants from competing on an even playing field. The majority rejected arguments that stare decisis should preclude the Court from overruling National Bellas Hess and Quill, reasoning that adherence to precedent should not support the Court’s prohibition of a valid exercise of the states’ sovereign power; in fact, the Court should be vigilant in correcting such an error.

 

Justice Roberts was blunt in his dissent, arguing that stare decisis should apply due to market participants making decisions on the decades-old physical presence test. Justice Roberts also warned that the majority decision could detract from e-commerce’s “significant and vibrant part of our national economy.” He reasoned that the Court should not act on this important question of current economic policy, solely to expiate a mistake it made over 50 years ago.

Many questions now exist going forward. How far can states now go under the first prong of Complete Auto, which requires a substantial nexus with the state before the state may impose a tax? Will states attempt any “look back” assessments? What dollar threshold, or number of transactions, will trigger nexus under Complete Auto? Will states offer vendor allowances/discounts for online retailers’ collection of tax?

The McNees State and Local Tax Team will continue to monitor developments and will keep you updated.

On October 13, 2017, the Pennsylvania Department of Revenue issued Sales and Use Tax Information Notice 2017-01, which is intended to help taxpayers engaged in timbering operations as a business operation and vendors selling property or services to such taxpayers.  Last year the General Assembly, under Act 84 of 2016, amended Article II of the Tax Reform Code of 1971 to exclude from sales and use tax the purchase or use of tangible personal property or taxable services predominately used directly in timbering operations, effective July 1, 2017.  The DOR’s Information Notice is intended to clarify the property or services that are considered to be directly used in timbering operations and therefore excluded from sales and use tax.

The term “timbering” is statutory defined under  72. P.S. § 7201(K)(8)(b), (o)(4)(b)(ii) as including the business enterprise of producing or harvesting trees from forests, woodlots or tree farms for the purpose of the commercial production of wood, paper, or energy products derived from wood by a company primarily engaged in the business of harvesting trees.  The term does not include the harvesting of trees for the purpose of clearing land for access roads, but includes all operations prior to the transport of the harvested product necessary for:

  • Removal of timber or forest products from the site;
  • In-field processing of trees into logs or chips;
  • complying with environmental protection and safety requirements applicable to the harvest of forest products;
  • loading of forest products onto highway vehicles for transport to storage or processing facilities; and
  • postharvest site reclamation including those activities necessary to improve timber growth or ensure natural or direct reforestation of the site.

The DOR provided a non-exhaustive list of the property and services that do or do not qualify for the timbering exclusion.  Those that do qualify are as follows:

  • Machinery and equipment used to harvest logs and trees, or to transport the harvested product to the log landing site, including but not limited to : axes; shovels; chainsaws or manual saws; forwarders; harvester-processors; feller-bunchers; mulchers/masticators; brush cutters; shovel loggers; skidders; brush piling shovels’ brush-rake piling cats; log loader attachments and yarders (truck/trailer-mount, small swing, mobile, tower, etc.); cable yarding carriage; swing machines; loaders; heavy-lift and aerial truck helicopters.
  • Lighting equipment and supplies used to light timbering operations.
  • Machinery and equipment used to process harvested trees and logs at the roadside log landing site, including but not limited to:  tracked log loaders, sorters, shovels and processers; tree delimbers and log cutters; on-site wheel log loaders; delimber/debarker/chipper machines; grinders to convert waste wood into useable wood biomass.
  • Machinery and equipment used to transport production personnel or equipment during the timbering operation, other than motor vehicles required to be registered under the Vehicle Code, including but not limited to utility helicopters or utility trailers.
  • Machinery, equipment, and materials used in postharvest site reclamation, including but not limited to: fertilizer hopper tanks or trailers used to haul or transport fertilizer; hydro-seeder trailers; dozers or graders; fill; fertilizer; seedlings; grass seed; shrubs; stone; concrete; soil nutrients.
  • Machinery, equipment , and supplies designed and used to control, abate, or prevent air, water, or noise pollution generated in the timbering operation, regardless of whether the pollutants are recycled or used in any manner.
  • Property used to test and inspect the timber products during actual timbering operations or before the product is loaded onto highway vehicles for transport away from the timbering site.
  • Wrapping equipment and supplies, including internal packing materials and returnable containers, used in packaging which passes to the ultimate consumer.
  • Property which is used directly in research activities, provided that the object of the research is the production of a new or improved product or method of producing a product.
  • Machinery and equipment used for environmental or safety requirements, other than motor vehicles required to be registered under the Vehicle Code, including but not limited to:  protective devices worn by production personnel in their work such as harnesses, gloves, goggles, etc.; firefighting water tanks; fire dozers; slip-on fire pumpers and forwarders; fire trailers; fire-retardant bombers and lead airplanes.
  • Replacement or repair parts (e.g., motors, belts, screws, bolts, cutting edges, air filters or gears)  which are installed and become an integral part of machinery or equipment directly used in timbering operations.
  • Operating supplies (e.g. fuel, gasoline, oil, lubricants, paint and compressed air) which are actively and continuously used in the operation of directly used machinery and equipment.
  • Maintenance or repair services to machinery or equipment directly used in timbering operations.

Purchases that do not qualify for the timbering exclusion:

  • The following services: lobbying services; adjustment, collection, or credit reporting services; secretarial or editing services; disinfecting or pest control services, or building maintenance or cleaning services; employment agency services; help supply services; lawn care services; self storage services.
  • Motor vehicles required to be registered under the Vehicle Code, regardless of their purpose.  This includes, but is not limited to:  water tenders; fire trucks and water tankers; fertilizer hopper trucks; trucks or motor vehicles used to transport production personnel; line spool trucks; low boy trucks; pilot cars.
  • Replacement or repair parts (e.g., motors, belts, screws, bolts, cutting edges, air filters or gears)  or operating supplies (e.g., fuel, gasoline, oil, lubricants, paint and compressed air)  for vehicles required to be registered under Vehicle Code.
  • Materials,  supplies, or equipment used to construct, reconstruct, alter, remodel, service, repair, maintain, or improve real estate or real estate structures, even though they may house or otherwise contain equipment or machinery used directly in timbering operations.  This includes, but is not limited to:  dozers; excavators; dump trucks; graders; compactors used to compact subgrade and rock surfacing; backhoes and ditch hoes: rock crushers and conveyors; loaders; rock drills; bridge cranes.
  • Machinery, equipment, tools or supplies used to support, clean, service, fuel, repair, or perform maintenance upon directly used machinery or equipment, including but limited to: chain, hoists, tire spreaders, welding equipment, drills, sanders, wrenches, paint brushes and sprayers, oilers, absorbent compounds, dusting compounds, air blowers, wipers, trailers, or tankers.
  • Property used in timbering recordkeeping and other administrative or managerial work, including but not limited to:  office furniture; supplies and equipment; textbooks and other educational materials; books and records; supplies used to record the quality or quantity of work in production, goods in storage, the flow of work, or the results of inspection; property used to instruct workers in routing work or in other production activities.
  • Property used in advertising harvested products for sale, in marketing or transporting the products to a market or to customers, in selling the products, or for the exhibition of harvested products.
  • Property used for personal comfort, convenience or use of employees.
  • Property including machinery, equipment, fuel, or power used for building ventilation buildings, general illumination, air conditioning and other space cooling, space heating and similar purposes.  However, such property may qualify if it is established that the use of the property bears an active causal relationship to the timbering operation.
  • Property used to transport personnel or to collect, convey or transport the property, and storage facilities or devices used to store the property, prior to the actual timbering operation.
  • Property used for waste handling and disposal of pollutants other than in the course of timbering operations, unless the property is used for postharvest site reclamation including those activities necessary to improve timber growth or ensure natural or direct reforestation of the site.
  • Property which is used after the harvested product is loaded onto highway vehicles for transport away from the harvesting site, including but not limited to log loaders and other machinery or equipment used at timber mills or production facilities, and wood transport machines used to deliver harvested product from the timbering site to other locations such as long and short log trucks or trailers, chip van trucks, log railcars, cargo ships or barges.
  • Property which is used for the purpose of clearing land for access roads, including but not limited to:  dozers; excavators; dump trucks; graders; compactors used to compact subgrade and rock surfacing; backhoes and ditch hoes; rock crushers and conveyors; loaders; rock drills; bridge cranes.

The Department also notes that a purchaser of property directly used in timbering operations should complete a Pennsylvania Exemption Certificate (REV-1220) in order to forego paying sales and use tax on the purchase.

Please contact the author of this article or another member of the McNees SALT Group if you have questions regarding what machinery, equipment, supplies or services fall within the “timbering” exclusion under Pennsylvania’s sales and use tax.

Please join the McNees SALT Group on October 20, 2017 at the Hollywood Casino in Grantville, Pennsylvania for “A Day on Sales and Use Tax for Pennsylvania Businesses.”  Full Agenda Here  The seminar, which will begin at 8:30 a.m. with breakfast and conclude at 4:25 p.m., will feature two distinguished guest speakers, Lauren A. Zaccarelli, Chair of the Department of Revenue Board of Appeals, and Karen M. Gard, Acting Chief Deputy Attorney General, Tax Litigation Unit.  The price of the seminar, which includes, breakfast, lunch, cocktail hour, electronic course manual and CPE credits is only $99!

Please REGISTER NOW 

In Green Acres Contracting Company, Inc. v. Commonwealth, 81 F.R. 2013 (6/13/2017), the Commonwealth Court, en banc, reversed a decision issued by a three-judge panel of the court in August 2016 regarding the scope of the term “guardrails” in the statutory definition of exempt “building machinery and equipment” (“BME”).  The panel had determined that nuts, bolts, washers and guardrail blocks used to attach guardrail panels to guardrail posts did not qualify as tax-exempt BME, and that the exemption was limited to nuts, bolts and washers used to connect horizontal guardrail panels.  In responding to Exceptions filed by the taxpayer, the court ruled that these items are exempt BME when transferred pursuant to a contract performed for a tax-exempt entity.  The rationale in the court’s recent decision was that the term “guardrails” refers to the entire guardrail system installed along a road or highway.  Since “guardrail posts” are the only guardrail components carved out from the statutory exemption for “guardrails,” only the posts are ineligible for exemption as BME.  The Commonwealth filed a Notice of Appeal with the Pennsylvania Supreme Court on July 11.

The sales tax statute does not specifically include “guardrail systems” in the definition of BME.  Rather, the statute specifically provides that “guardrails” are BME (presumably as a traffic control system or part thereof) and specifically excludes “guardrail posts” from the BME exemption.  The panel had interpreted this to mean that the exemption for “guardrails” applies only to the “horizontal rail itself,” including fasteners connecting horizontal guardrail panels to each other.   Since the taxpayer was unable to quantify the amount or percentage of nuts, bolts and washers used to connect guardrail panels, as opposed to those used to attach panels to posts, the panel had denied the taxpayer’s refund claim.

The Commonwealth took the position that all nuts, bolts, washers and guardrail blocks should be excluded from the statutory exemption for “guardrails.”  Significantly, even the panel that initially considered the case agreed that, while fittings “do not become exempt simply because they are used in installing equipment defined as BME or are used in conjunction with BME,” there was no legislative intent to “break down the internal components of equipment [such as guardrail] expressly defined as BME and designate some of those internal components as taxable.”

The court relied on relevant dictionary definitions and an evaluation of common usage of the term “guardrails,” including Federal and state publications, as support for its conclusion that the term “guardrails” in the sales tax statute refers to the entire guardrail system.  Assuming the court’s recent decision is upheld on appeal, the rationale should benefit taxpayers claiming an exemption for components of other types of BME.

 

 

 

 

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On October 20, 2017, the McNees State and Local Tax team will present a full-day seminar on Pennsylvania Sales and Use Tax.  Always a popular offering, this seminar will offer CPE credits and will be held at the Hollywood Casino in Grantville, Pa.  Don’t gamble with your knowledge of Pennsylvania tax; rather, let the McNees team present the hottest information and answer any questions you may have.  More specific details will follow.  For now, however, reserve October 20, 2017 on your calendar.  See you at the casino!

In Sales & Use Tax Bulletin 2017-01 (April 10, 2017), the Pennsylvania Department of Revenue announced major changes in its procedures for the handling of sales and use tax refund petitions. The Bulletin provides that “large” refund requests may be addressed through the field audit process. This will be accomplished by allowing the Board of Appeals to “dispose of” a refund petition by issuing a decision and order requiring a field audit. The Department will have discretion as to whether to conduct a field audit in a particular case, but noted that “in general, refund petitions requesting in excess of $100,000, or multiple petitions in one year exceeding that threshold in the aggregate, are more likely to be referred for a field audit.”

The Board of Appeals also has introduced two new appeal schedules for Sales and Use Tax refund petitions, as well as detailed “supporting documentation” requirements for Sales and Use Tax appeals, which are available on the Board’s website. First, the existing REV-39 Appeal Schedule form has been revised to require more information, and the Board has stated a preference that the schedule be submitted in an electronic format for ease of processing. In addition to detailed transaction information for each contested transaction, the instructions for the updated REV-39 form purport to require submission of proof of tax payment “for every transaction in which the refund of tax is requested.” Historically, the Board had required the submission of detailed proof of payment information only for a sample of the transactions included in a refund claim, unless the taxpayer was unable to provide satisfactory proof of payment for the selected sample transactions. The instructions further state that the “[f]ailure to provide any of the information requested . . . may result in the dismissal of [a] petition.”

Second, the Board has introduced a new Summary Appeal Schedule, which must be submitted with petitions seeking a refund of $100,000 or more, other than refund requests for sales tax attributed to bad debts. For purposes of determining whether a petitioner has requested a refund of $100,000 or more, the Board may consider all petitions filed within one year as a single refund request. The Summary Appeal Schedule “may be filed to determine if the Department intends to refer the refund request for a field audit review prior to submission of all of the evidence supporting the claim.” The Schedule requires a list of the substantive issues (e.g., resale exclusion, computer services, direct use in manufacturing, etc.), the estimated number of transactions per issue, the estimated dollar amount per issue, and the calendar year in which the disputed transactions occurred. The total dollar amount in the Summary Appeal Schedule must match the total refund amount requested in the petition. Otherwise, a complete appeal schedule will be requested by the Board.

If a taxpayer is referred for a field audit, the Department will consider both underpayments and overpayments of tax through the audit process. The audit conducted by the Department “will encompass at least the same periods within the 3-year refund window, and may extend to additional periods if the taxpayer agrees to a waiver of the statute of limitations on assessments.” The Bulletin lists the use of a “stratified random sample of liabilities and overpayments . . . to limit the number of transactions required to be reviewed at all appellate levels” as one of the advantages of addressing refund requests through a field audit. Other stated advantages include potential reductions in the amount of interest and penalty due on audited underpayments and the fact that “[c]onsolidating the liability and overpayment issues into a field audit would allow the appellate process to handle both issues simultaneously.”

The Bulletin clarifies that a taxpayer may file a subsequent refund petition pursuant to 72 P.S. § 10003.1(b) after completion of the field audit to contest any “refunds not granted in the audit.” The Bulletin appears to contemplate that such a petition would cover only the specific refund transactions that were reviewed in the audit, as opposed to all refund transactions originally identified by the taxpayer. That is, in the case of a test audit for expense purchases, only tax overpayments on transactions that were selected as part of the test sample would be included in the subsequent refund claim.

Various issues will need to be addressed as the Department moves forward with the new procedures. For example, does the Board of Appeals have statutory authority to “dispose of” a refund petition without considering the merits of the claim? And, can a taxpayer seek refunds or credits for tax paid on transactions that were not included in a test sample, but were included in the sampled population, when a refund claim is filed after a field audit, on the basis that the test audit did not adequately capture tax overpayments made by the taxpayer?

 

As discussed in prior posts, Sales and Use Tax Ruling No. SUT-17-001, issued by the Pennsylvania Department of Revenue in February, raised concerns that the Department’s interpretation of the term “support” in Act 89 of 2016 exceeded the scope of the taxing statute.  In response to complaints that its original ruling was overbroad, the Department retracted its original ruling and issued a revised ruling on April 4, 2017.  The revised ruling (A5700684) defines software support to include “identifying the source of problems affecting the usability” of the software and/or attempting to restore it to a useable state, as well as troubleshooting and providing direction as to the implementation or use of the software (i.e., help desk and call center support, whether delivered verbally or online).

“Training” services and certain “consulting” services were removed from the scope of “support” services subject to tax under current law. Since the term “consulting” can be used to describe various types of activities, the ruling states, however, that it “may not be interpreted as a definitive determination of the taxability of what taxpayers may describe as consulting.” That is, if services described as “consulting” fall within the definition of “support” contained in the ruling, the Department would view such services as taxable “support” services.

 

As discussed in prior blog posts, Ruling No. SUT-17-001 issued by the Pennsylvania Department of Revenue in February raised concerns that the Department’s interpretation of the term “support” in Act 89 of 2016 exceeded the scope of the statute.  Act 89 imposed tax on digital products, and on “maintenance, updates and support” for such products, as of August 1, 2016.  In Ruling No. SUT-17-001, the Department characterized certain “consulting” and “training” services as taxable “support” services.  The Department has since removed Ruling No. SUT-17-001 from its website – presumably because it is reconsidering the scope of taxable “support” services for computer software under current law.

Less than six months ago the Pennsylvania Supreme Court in Mount Airy #1, LLC v. Pennsylvania Dep’t of Revenue, 2016 Pa. Lexis 2174 (Pa. Sept. 28, 2016), held that the Pennsylvania Race Horse Development and Gaming Act’s “local share assessment” (a tax imposed upon slot machine revenue) violated the Uniformity Clause of the Pennsylvania Constitution. As a result of the Mount Airy decision, more than $140 million in tax payments to host municipalities are in limbo. The Court initially gave state lawmakers 120 days from its decision to find a proper solution. The legislators, however, failed to meet the 120 day deadline. Consequently, a group of state senators filed a petition for an extended stay on January 12, 2017 and on January 20, 2017, the Court gave lawmakers an additional four months -until May 26th- to fix the tax on casino slot revenue.

Now with the looming dark cloud deadline of May 26, 2017 as a backdrop, the Pennsylvania Supreme Court is going to hear oral arguments on two more tax cases involving Uniformity. On March 8 and April 5, 2017, the Pennsylvania Supreme Court will be hearing oral arguments in Valley Forge Towers Apts., et. al. v. Upper Merion Area School District, No. 49 MAP 2016 and Nextel Communications of the Mid-Atlantic, Inc. v. Commonwealth, Pa., No. 6 EAP 2016, respectively.

In Valley Forge Towers Apts. N, LP v. Upper Merion Area School District, 124 A.3d 363, 365 (Pa. Cmwlth. 2015), the Pennsylvania Commonwealth Court held that a school district does not violate the Uniformity Clause when it has reasonable financial considerations of increasing its revenue by appealing certain high-valued properties within its district. On April 26, 2016, the Pennsylvania Supreme Court granted allocator in Valley Forge Towers v. Upper Merion Area School District, 49 MAP 2016. The Supreme Court phrased the issue presented for review, as follows: “[i]s a school district’s decision to appeal property assessment insulated from review because, inter alia, the school district has a statutory right to file appeals and can identify an economic reason for its appeals?” The taxpayers claimed in their suit that the Upper Merion Area School District (“School District”) violated the Uniformity Clause by appealing only commercial properties and not appealing any of the thousands of under assessed single-family properties within the School District.

If the Supreme Court determines that the School District’s selection process in determining which properties to appeal in a given tax year violates the Uniformity Clause, it could take away school districts’ ability to file assessment appeals, drastically change the way school districts select properties to appeal, or it could give property owners a guide map on how to successfully fight school district-initiated assessment appeals. All of those outcomes could be financially devastating not only to the school districts that initiated the appeals, but also for the local municipality and county that piggy backed on any assessment increase. Unfortunately, many local taxing jurisdictions have grown accustomed to balancing their yearly budgets using real estate tax revenue generated from school district -initiated assessment appeals. If and when that ability to appeal is altered in any way, the local taxing jurisdictions are going to have to come up with more creative and hopefully constitutional ways to make up any lost revenue.

In Nextel Communications of the Mid-Atlantic, Inc. v. Commonwealth, 129 A.3d 1 (Pa. Cmwlth. 2015), the Commonwealth Court held that Pennsylvania’s cap on the use of net operating loss carryforwards to the greater of a fixed dollar amount of $3 million or a percentage of taxable income of 12.5 percent of taxable income for the 2007 tax year violated the Uniformity Clause. The Commonwealth Court reasoned that, while the Uniformity Clause does not require absolute equality and perfect uniformity in taxation, if no legitimate distinction exists between the classes subject to differing tax treatment, and a substantial unequal tax burden is imposed on similarly-situated taxpayers, the tax violates the Uniformity Clause. The court found that the only factor that distinguishes between those taxpayers who paid no corporate net income tax as a result of the 2007 net operating loss deduction limitation and those that paid some, was the amount of their taxable income – a classification that cannot withstand the scrutiny afforded under the Uniformity Clause.

Accordingly, the Commonwealth Court granted the taxpayer in Nextel full use of its net operating loss carryforwards, which resulted in a $3.94 million dollar refund. Although the Commonwealth Court decision specifically stated that it only applied to Nextel and the 2007 tax year, other similarly situated taxpayers filed refund appeals that could ultimately cost the Commonwealth hundreds of millions of dollars if the Pennsylvania Supreme Court upholds the Commonwealth Court’s analysis.

If you are subject to a school district initiated assessment appeal, or if you are not able to utilize your full net operating loss carryforwards, please contact Paul Morcom, or any member of McNees’ state and local tax group, to discuss.