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.

Tax Practitioners and Finance VPs should keep an eye out this week  for significant activity coming out of the Pennsylvania  legislature  that will  align the PA tax structure with that of the feds—in some areas.

The House Finance Committee will vote on  June 19 on SB 1056, which will align PA bonus depreciation with the feds for property placed in service after September 27, 2017.

The recently enacted Federal Tax Cuts and Jobs Act makes major changes to corporate income taxes, one of which is that C-corporations will be able to deduct 100% of the cost of their capital investments (e.g. plant and equipment) immediately, for the next five years. The federal 100% bonus depreciation rule applies through 2022 and then will be phased down over the succeeding five years. In response to the new federal bonus depreciation rules, the Pennsylvania Department of Revenue issued Corporation Tax Bulletin 2017-02. The bulletin interprets certain sections of Pennsylvania tax law as requiring the amount of a 100% deduction under federal rules to be added back to Pennsylvania taxable income and provides no additional mechanism for cost recovery with respect to the qualified property until it is either sold or disposed of in some other manner. The bulletin not only “decouples” Pennsylvania from the federal rules, but it denies businesses the ability to claim depreciation deductions indefinitely. By disallowing this important deduction indefinitely, Pennsylvania would be unique among states and would create a business climate that discourages investment and spawns economic contraction rather than opportunity and expansion.

The House Finance Committee will vote on June 20 on  HB 2303, which would permit the executor or administrator of a decedent’s estate to elect to file a combined annual income tax return for an estate and revocable trust during the period the estate is open. Under federal law, the estate of a decedent who dies with a revocable trust in place can elect to file a single annual income tax return (Form 1041) that reports income earned by both entities (the estate and trust). Pennsylvania does not permit this practice so that a decedent’s estate and revocable trust are required to file separate income tax returns (Form PA 41) to report income earned by each during the year.

 

The Pennsylvania State Tax Equalization Board has released the Common Level Ratio (“CLR”) real estate valuation factors for 2017.  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.  Click on the following link A6383603 to see the 2017 CLR list.  To determine if your property is currently over-assessed – take the properties current assessed value and divide it by the CLR.  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) or Randy Varner (717-237-5464) to discuss.

 

Lancaster, Pa. – (February 13, 2018) Nissin Foods topped the list of over 5,200 Lancaster County property owners that successfully appealed their assessed values.  The Nissin plant on Hempland Road in East Hempfield Township originally had an assessed value of $15,686,900 after the county-wide reassessment and due to a successful appeal, the new assessed value is $9,390,000 – a reduction of $6,290,900.  Representing Nissin in this appeal was Paul Morcom of McNees Wallace & Nurick LLC.

Paul has more than fifteen years of experience in state and local tax litigation.  Although Paul has significant experience in all state and local taxes such as sales/use, corporate net income, franchise, PURTA, gross receipts, gross premiums, realty transfer and personal income, most of his practice focuses on real estate tax.  Paul has successfully represented clients in real estate tax matters in 28 of Pennsylvania’s 67 counties.

Paul’s other recent real estate tax successes are as follows:

●   negotiated a $5,837,000 reduction in assessed value for a retail store in Allegheny County in December 2017, saving company $233,000 of real estate taxes per year;

●   received exempt status for non-profit in Cumberland and Lancaster Counties in November 2017, saving company $2,500,000 of real estate taxes per year;

●   negotiated an $84,609,800 reduction in assessed value for an industrial property in Blair County in March 2017, saving the company $1,100,000 of real estate taxes per year;

●   negotiated an $85,862,500 reduction in assessed value for a retail store in downtown Philadelphia in August 2016 saving the company $1,150,000 of real estate taxes per year; and

●   negotiated exempt status for two properties owned by a nursing home in Montgomery County in December 2016, resulting in $981,000 of refunds for real estate taxes paid in years deemed exempt and $337,400 of tax savings per year going forward.

Paul also coauthors the leading assessment treatise in Pennsylvania – Assessment Law & Procedure in Pennsylvania, which is published by The Pennsylvania Bar Institute every two years.  Be on the lookout for the 16th Edition, which will be out in the Spring of 2018.

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McNees is a full-service law firm based in central Pennsylvania with more than 130 attorneys representing corporations, associations, institutions and individuals. The firm serves clients worldwide from offices in Harrisburg, Lancaster, State College and Scranton, PA; Columbus, OH; Frederick, MD; and Washington, D.C. McNees is also a member of the ALFA International Global Legal Network.

www.mcneeslaw.com | @McNeeslaw | LinkedIn

 

On December 22, 2017, the Pennsylvania Department of Revenue (“Department”) issued Corporation Tax Bulletin 2017-02, which announced that Pennsylvania will no longer allow the 100% deduction for depreciation of qualified property under IRC § 168(k) for property placed in service after September 27, 2017.  Accordingly, any taxpayers who take advantage of the 100% bonus deduction for federal purposes must, when computing its Pennsylvania corporate net income tax, add the 100% bonus deduction to income.  Additionally, the Bulletin notes that the taxpayer may take an additional deduction when the qualified property is sold or otherwise disposed of during a taxable year to the extent the amount of depreciation claimed has not been fully recovered.

On January 22, 2018, Representative Francis Ryan, realizing that the Department’s approach to bonus depreciation is not necessarily business friendly at a time when Pennsylvania is trying everything possible to attract businesses to invest in Pennsylvania, introduced House Bill 2017.  That bill changes the definition of taxable income to include the deduction for depreciation of qualified property equal to the depreciation on the qualified property for the taxable year and determined in accordance with sections 167 and 168 of the Internal Revenue Code of 1986 (26 U.S.C. §§ 167 and 168) without regard to section 168(k) of the Internal Revenue Code of 1986 (26 U.S.C. § 168(k)).

If you are in favor of House Bill 2017, please contact Representative Francis Ryan and let him know.  We will follow the progress of that bill and update you as necessary.

On October 30, 2017, Act 43 of 2017 reduced the period of time a taxpayer has to file an appeal at the Board of Appeals (“BOA”) and the Board of Finance and Revenue (BF&R) from 90 days to 60 days, effective after December 29, 2017.

On December 4, 2017, the BOA advised that for any petitions filed with the BOA on or before December 29, 2017, the Department’s decision and order will indicate a 90 day appeal period to the BF&R.  For any petitions filed with the BOA on of after January 1, 2018, the Department’s decision and order will indicate a 60 day appeal period to the BF&R.  The BOA is in the process of updating its forms and computer system accordingly, and hopes for a January 1, 2018 completion.  Any questions should be directed to Lauren Zaccarelli, the Chair of the BOA, at 717-787-4916, or lzaccarell@pa.gov.

Additionally, on December 7, 2017, the BF&R issued guidance which states,”[t]ax appeals originally filed at the BOA after December 29, 2017 must be filed with the BF&R no later than 60 days after the mailing date of the decision and order from the BOA, rather than the current 90 days.  The BF&R guidance goes on to note that this change does not apply to appeals of tax types that have specific appeal periods established in a statute outside of the general administrative tax appeal statute of 72 P.S. § 9704(b).  For any questions regarding the BF&R guidance, please call the BF&R at 717-787-2974 or email the BF&R at bfr@patreasury.gov.

 

On November 16, 2017, the Pennsylvania Department of Revenue (“Department”) issued Corporation Tax Bulletin 2017-01 in order to clarify the Department’s stance on the net operating loss deduction.  The Department will revise its forms and procedures to implement the Pennsylvania Supreme Court’s decision in Nextel Communications of the Mid-Atlantic, Inc. v. Commonwealth of Pennsylvania, Dkt. No. 6 EAP 2016 (10/18/2017), which found that the $3 million cap on the net operating loss deduction (“NOL”) violated the Uniformity Clause of the Pennsylvania Constitution. The decision left in place the portion of the statute that limits the NOL deduction at 12.5% of taxable income for the 2007 tax year at issue.

On November 1, 2017, Nextel filed an Application for Reargument with the Court regarding the appropriate remedy to apply to the 2007 tax year. Accordingly, while this NOL issue remains open, the Department is taking a proactive approach to provide clarity to corporate taxpayers. Taxpayers are therefore advised that the flat-dollar cap on the NOL, currently at $5 million, will not be available for taxable years beginning in 2017 and thereafter. However, the NOL limitation of 30% of taxable income will continue to be effective for taxable years beginning in 2017.

Please contact a member of the McNees SALT Group if you have questions regarding the Pennsylvania NOL deduction or the Nextel case.

 

In an opinion released today, the Pennsylvania Supreme Court found the Commonwealth’s 2007 net loss carryover cap scheme–which limited the amount of loss a taxpayer cold carry over to 12.5% or $3 million, whichever was greater–unconstitutional. Nextel Communications of the Mid-Atlantic, Inc. v. Commonwealth of Pennsylvania, No. 6 EAP 2016 (October 18, 2017). The taxpayer in Nextel had argued that the statute was unconstitutional “as applied” to its situation, and had requested a refund of nearly $4 million.

 

The Court held that the cap, found in 72 P.S. §7401(3)4.(c)(1)(A)(II), had the effect of creating different effective tax rates and classifications in violation Article 8, Section 1 of the Pennsylvania Constitution, commonly known as the “Uniformity Clause.” The Court agreed with Nextel’s argument that the cap allowed “smaller” taxpayers to use deductions up to the $3 million limit that would result in no tax liability if the taxpayer had $3 million or less of income. On the other hand, the cap scheme would not permit the same treatment of large taxpayers with income of over $3 million. The “smaller” taxpayer base with 98.8% of all Pennsylvania taxpayers in 2007. As a result of this differential treatment, the Court found the cap unconstitutional.

 

The Court then turn its attention to the remedy. Nextel had argued that the only appropriate remedy would be for the court to award it the requested refund. The Court undertook a “severability analysis” which is required when addressing an “as applied” rather than “facial” challenge to a statute. Ultimately, the Court disagreed with Nextel’s remedy argument and instead severed the flat $3 million piece of the cap from the statute. Nextel was denied its requested $4 million refund.

 

The ramifications of this case are many and will severely impact small businesses that have heretofore relied on the flat dollar piece of the cap to offset most, if not all of their income. This will likely result in the General Assembly revisiting this topic to address important concerns like that one in a constitutionally permissible way. We will keep you updated on developments springing from this decision.

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.

We are writing to update you on the status of budget negotiations in the Pennsylvania General Assembly that no longer includes the potential storage tax that we wrote about earlier this week but does include a new hotel tax. The idea of a hotel tax developed rapidly from closed door negotiations and caught the hotel and tourism industries by surprise.  As indicated in our McNees Client Alert and media coverage, there was a proposed storage tax in a revenue proposal circulating earlier in the week.  The opposition to this tax voiced significant concern about the broadly written language that would be detrimental to the logistics and warehousing industry as well as economies in Pennsylvania.  As a result, the idea lasted no more than a few days because there was not enough support for the revenue plan.  It came apart by Tuesday afternoon.  

 

After it emerged, the hotel tax idea and related revenue plan moved fast yesterday and was included in an omnibus amendment to the Tax Code.   Today House leaders continue their work to secure support to pass the new revenue plan including this hotel tax.  However, we expect this tax proposal to receive significant opposition much like the warehousing tax.  So, its future remains unseen. Meanwhile, expanded gambling remains part of the House revenue package. It is not clear if the Governor supports the hotel tax and other items in the revenue package.  

 

We are monitoring developments in the capitol today and will be reviewing language of the amendment to the Tax Code as well as other pieces of legislation that will be filed with respect to the budget. Please contact us should you have any questions.