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).

The annual assessment appeal deadline of August 1, 2021 for assessed values effective for tax year January 1, 2022 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.

However, because August 1, 2021 falls on a Sunday, you will have until August 2, 2021 to timely file annual assessment appeals in the above-mentioned counties.

The annual assessment appeal deadline of September 1, 2021 for assessed values effective for tax year January 1, 2022 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, Wayne 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, 2021 and Wyoming County is August 31, 2021.  Philadelphia County is not a specific date, but instead the annual appeal deadline is the first Monday in October, which is the 4th 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, 2022 in Allegheny County is March 31, 2022.

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 2022.

The Pennsylvania Department of Revenue has extended its Voluntary Compliance Program (“Program”) for any business that has inventory or stores property in Pennsylvania but is not registered to collect and pay Pennsylvania taxes. The Program, which runs through June 8, 2021, offers a limited lookback period and penalty relief when the business becomes compliant.

Taxpayers that choose to participate in the Program will not be liable for taxes owed prior to January 1, 2019. Taxpayers who participate in the Program also will be given penalty relief for any non-compliance for past due tax returns that were not filed and taxes that were not paid.   If your company has inventory or stores property in Pennsylvania but is not registered to pay or collect Pennsylvania taxes, please contact one of our SALT attorneys (Paul R. Morcom, 717-237-5364; Sharon Paxton, 717-237-5393; or Adam Koelsch, 717-237-5305) to determine if the Program is right for your company.

The Pennsylvania Department of Revenue adjusted the Common Level Ratio (“CLR”) for Delaware County to reflect Delaware County’s countywide reassessment base change effective January 1, 2021.  Accordingly, for documents accepted between 7/1/2020 to 12/31/2020 the applicable Delaware County CLR is 2.00.  For documents accepted between 1/1/2021 to 6/30/2021 the applicable Delaware County CLR is 1.00.  See Pa. Bull. Doc. No. 21-339, Vol. 51, No. 10, 03/06/2021.

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) – if you have any questions pertaining to realty transfer tax in Pennsylvania.

On March 3, 2021, the Commonwealth Court in Mandler and Nuclear Imaging Systems, Inc. v. Commw., No. 483 F.R. 2014, overruled taxpayers’ exceptions to the Court’s decision affirming the denial of the taxpayers’ petition for refund of employer withholding taxes paid to the Pennsylvania Department of Revenue (the “Department”) in satisfaction of $180,000 in liens.  As part of a prior bankruptcy proceeding, a third-party purchaser had received approval to buy equipment from the taxpayers and had agreed to escrow the funds as payments to state taxing authorities.  The bankruptcy trustee, however, used the funds to pay other liabilities of the taxpayers.  Thus, the Department, which had filed proofs of claim for the taxes in the bankruptcy proceeding, was not paid and it thereafter filed liens against the taxpayers for the taxes owed.

As an initial matter, the Court held that the taxpayers had waived arguments asserting civil rights violations by the Department because they had failed to mention them in their original petition for review or Statement of Questions Involved and did not develop those arguments in their brief, and because they had not raised the arguments in their exceptions apart from “mere declarations without accompanying developed arguments, record citations, or legal authorities” in the supporting briefs.

The Court reaffirmed its holding in its prior opinion that the taxpayers had failed to satisfy their burden of proving their entitlement to refunds.  As Pennsylvania employers, the taxpayers were required under the Tax Code to withhold income taxes from their employees’ compensation and hold those funds in trust on behalf of the Commonwealth.  Trust fund taxes of that kind are not dischargeable in bankruptcy and therefore the bankruptcy proceeding did not relieve the taxpayers of their liabilities.  The taxpayers argued that the Department was barred from collecting the taxes because funds had been escrowed for the express purpose of paying the taxes and the Department failed to claim those funds during the bankruptcy proceedings.  But, although the third-party purchaser had agreed to escrow the funds to pay taxes, nothing in the bankruptcy proceeding specified that the funds were set aside for that purpose.  Moreover, the evidence showed the taxpayers knew that the escrowed funds did not satisfy their tax debt because only $66,215.19 was put into the account, and because documents filed during the bankruptcy proceeding showed that the taxpayers owed $300,000 in taxes to various states, including $180,000 to the Commonwealth.  Furthermore, there was no evidence the Department knew the funds existed, especially given that the Commonwealth was not a party to the bankruptcy settlement.

The Court also reaffirmed its holding in its prior opinion that the doctrine of laches did not bar the Department from collecting the taxes through the liens.  Laches, as applicable to a Commonwealth agency, has three requirements:  (1) the agency intentionally or negligently misrepresented a material fact; (2) the agency knew or had reason to know the other party would justifiably rely on the misrepresentation; and (3) the misrepresentation induced the other part to act to its detriment.  In their exceptions, the taxpayers relied on the decision of In re Estate of Leitham, 726 A.2d 1116 (Pa. Cmwlth. 1999) for the proposition that laches can preclude the Commonwealth from collecting past taxes due.  In response, the Court pointed to its decision nine years later in Borough of Braddock v. Sullivan Plumbing Inc., 654 A.2d 672 (Pa. Cmwlth 2008).  The Braddock court held that laches precluded a borough from collecting interest and penalties because those amounts resulted from the borough’s delay in attempting to collect the tax principal.  But the Braddock court also held that the borough could collect the tax principal because the borough’s delay did not change the fact that the taxpayer owed the tax.  Thus, in the current case, the Court held that the taxpayers had failed to establish laches from the Department’s failure to claim the funds during the bankruptcy because:  (1) the Department had not intentionally or negligently misrepresented any material fact that induced the taxpayers to act to their detriment; (2) the escrowed funds had not been set aside specifically for taxes and therefore the Department could not have necessarily claimed them; (3) the taxpayer’s conclusory statement that “there was prejudice” was insufficient to show it; and (4) the taxpayers, quite simply, owed the taxes.

Finally, the taxpayers claimed, for the first time in their exceptions, that the doctrine of collateral estoppel barred the Department from collecting the taxes.  Collateral estoppel requires, among other things, that “the issue decided in the prior adjudication was identical with the one presented in the later action,” and that “there was a final judgment on the merits.”  The taxpayers had not offered a specific argument on the issue in their exceptions.  But, in any event, the Court concluded that the Department was not estopped because the issues in the current case differed from the issues in the bankruptcy proceedings, and because there was no final judgment on the merits since the tax liens were not satisfied in the bankruptcy proceedings.

If you are considering bankruptcy and know that you have outstanding Pennsylvania tax issues, 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) to ensure that all of your outstanding Pennsylvania tax issues are addressed properly.

The deadline for filing a real estate tax assessment appeal for the 2021 tax year is fast approaching in Allegheny County.  The deadline is March 31, 2021.  Property owners of hotels, restaurants, bars or any property type that has been affected by the government restrictions due to COVID 19 should be taking a close look at their assessed values for 2021 and possibly filing assessment appeals for the 2021 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 November 9, 2020, the Pennsylvania Department of Revenue issued guidance relating to telecommuting and related tax implications.  If an employee is working from home temporarily due to the COVID-19 pandemic, the Department does not consider that as a change to the sourcing of the employee’s compensation.  For non-residents who were working in Pennsylvania before the pandemic, their compensation would remain Pennsylvania-sourced income for all tax purposes, including PA-40 reporting, employer withholding and 3-factor business income apportionment purposes for S corporations, partnerships and individuals.  Conversely, for Pennsylvania residents who were working out-of-state before the pandemic, their compensation would remain sourced to the other state and they would still be able to claim a resident credit for tax paid to the other state on the compensation.  For a Pennsylvania employer with a non-resident employee temporarily working from home due to the COVID-19 pandemic in a state that does not have a reciprocity agreement with Pennsylvania, the Department advises that the employee’s compensation remains Pennsylvania sourced, and the employer is required to withhold on the compensation.  This guidance will be in effect until the earlier of June 30, 2021, or 90 days after the Proclamation of Disaster Emergency in Pennsylvania is lifted (“end date”).  As of that end date, the guidance is rescinded and all prior tax rules are applicable. (Telework During the COVID-19 Pandemic, PA Department of Revenue, 11/09/2020.)

The Pennsylvania State Tax Equalization Board (“STEB”) has released the Common Level Ratio (“CLR”) real estate valuation factors for 2019.  The common level ratio is the ratio of assessed value to market value used to value properties in a particular county for property tax purposes, and is used for purposes of appealing property tax assessments effective for tax year 2021.  Click here 2019 STEB Ratios (A7555681) to see the 2019 CLR list.  To determine if your property is currently over-assessed – take the properties current assessed value and divide it by the CLR listed for your county.  This will give you your property’s current implied fair market value.  If you know that your property’s current fair market value is for example $100,000 (based on a recent appraisal value) and the current implied fair market value is $200,000, then your property is over-assessed and an annual assessment appeal should be filed to lower your assessed value and consequently your real estate taxes.  If you have any questions regarding the CLR and how to determine if your property is over-assessed, please call Paul Morcom (717-237-5364) to discuss.

The Pennsylvania Department of Revenue has announced additional relief from tax enforcement and collection activities due to the COVID-19 pandemic.  A complete list of newly announced relief for taxpayers is available at https://www.revenue.pa.gov/Pages/Relief-For-Taxpayers.aspx.  Some of the highlights are summarized below.

Pause Payments for Existing Payment Plans

Taxpayers with existing installment payment agreements may request that payments be suspended without canceling the agreement by emailing a request to RA-RV-CEC-DPP@pa.gov. The department will not default any payment plans during this limited timeframe, even if new delinquencies or non-filed periods arise. However, interest will continue to accrue on any unpaid tax balances.

Flexible Terms for New Payment Plans

The Department will revise general payment plan guidelines to permit greater flexibility on payment amounts and the duration of installment payment agreements. Taxpayers will have the ability to request payment plans for outstanding liabilities without the Department imposing a lien. Also, the Department will not require financial disclosure documentation for payment plans that are under $12,000 and can be resolved within 12 months.

Collections and Enforcement Activities

Certain automatic enforcement actions will be temporarily reduced or suspended.  There will be a significant reduction in the number of tax liens filed by the Department and license inspections, revocations and citations will be limited.  In addition, no wage garnishment or bank attachment actions will be taken for new tax debts, and tax clearances and compliance checks will be conducted consistently with the more lenient debt collection/resolution approach.

Assessed Penalties

During this limited period, the Department will generally abate penalties provided that taxpayers have remitted all outstanding trust fund taxes that they have collected.

Desk Review and Field Audit

During this period, the Department, through its Bureau of Desk Review & Analysis and Bureau of Audits, will not initiate new desk reviews or field audits in most cases. There may be exceptions if it is deemed necessary to protect the Commonwealth’s interest in preserving the applicable statute of limitations or as it relates to refund claims..

The Bureau of Audits will continue to work with taxpayers to complete audit work that is in process through correspondence where possible and avoid in-person meetings until at least July 15, 2020. The Department of Revenue will continue to take the steps necessary to protect applicable statutes of limitations. In instances where statute expirations might be jeopardized during this period, taxpayers are encouraged to cooperate in extending such statutes and the Department will also be flexible with taxpayers in granting requests to provide more time.

Audit Penalty Abatement and Interest Relief

The Department will broaden existing audit penalty abatement parameters for audits that are completed during the remainder of 2020.  Additionally, to take into account the impact of halting field work, currently in-progress sales tax, fuels tax, and IFTA audits that are completed and assessed prior to December 31, 2020 will include up to 90 days of interest relief to address delays in fieldwork.

Sales Tax Prepayments

The PA Department of Revenue has announced that businesses that collect Pennsylvania sales tax will not have to make accelerated sales tax prepayments in April, May or June. Businesses that normally have a monthly prepayment requirement will not be charged penalties for missing the prepayment deadline during this three-month period.

Under this new scenario, the Department is asking businesses to simply remit the sales tax that they collected during the prior month. The due dates to remit sales tax will be April 20, May 20 and June 22, which follows the standard due dates for monthly filers who have no prepayment requirement.

Tax Impact of Employees Temporarily Working from Home

As reflected in Q&A’s available in its Online Customer Service Center, the Department of Revenue has indicated that, when making Corporate Net Income Tax and Sales Tax nexus determinations, it will not consider employees that are temporarily required to telework due to COVID-19.  That is, the presence of employees temporarily working at home in Pennsylvania due to the pandemic will not create nexus for businesses that otherwise do not have nexus with Pennsylvania.

The Department also provided information regarding the tax treatment of those employees temporarily working at home in other states.  If an employee who normally works from home in Pennsylvania and receives Pennsylvania-sourced compensation works from home in another state temporarily due to the COVID-19 pandemic, the Department will not consider that as a change to the sourcing of the employee’s compensation.  That is, according to the Department, the employee’s income would remain Pennsylvania-sourced income for all tax purposes, including PA-40 reporting, employer withholding tax and three-factor business income apportionment purposes for S corporations, partnerships and individuals.