PRIOR PRINTER'S NOS. 3302, 3422 PRINTER'S NO. 3681
No. 2363 Session of 2002
INTRODUCED BY CORNELL, RUBLEY, M. WRIGHT, STABACK, FICHTER,
SATHER, SAYLOR, HERSHEY, HORSEY, CREIGHTON, NAILOR,
E. Z. TAYLOR, TIGUE, THOMAS, GRUCELA, CLARK, TRICH, MUNDY,
BELFANTI, ALLEN, TRELLO, MELIO, BUNT, CAPPELLI, PISTELLA,
YOUNGBLOOD, WOJNAROSKI, WASHINGTON, SOLOBAY, MARSICO, JAMES,
GABIG, WILT, G. WRIGHT, B. SMITH, McGILL, ADOLPH, CLYMER,
STEELMAN, PERZEL, ZUG, ARMSTRONG, CORRIGAN, DAILEY, PICKETT
AND BARD, FEBRUARY 12, 2002
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
APRIL 15, 2002
AN ACT
1 Amending the act of March 4, 1971 (P.L.6, No.2), entitled "An
2 act relating to tax reform and State taxation by codifying
3 and enumerating certain subjects of taxation and imposing
4 taxes thereon; providing procedures for the payment,
5 collection, administration and enforcement thereof; providing
6 for tax credits in certain cases; conferring powers and
7 imposing duties upon the Department of Revenue, certain
8 employers, fiduciaries, individuals, persons, corporations
9 and other entities; prescribing crimes, offenses and
10 penalties," further providing for the definition of
11 "maintaining a place of business in this Commonwealth," for
12 collection of tax and for seizure of property; PROVIDING FOR <--
13 THE SITUS FOR IMPOSITION OF SALES AND USE TAX RELATED TO THE
14 PENNSYLVANIA INTERGOVERNMENTAL COOPERATION AUTHORITY FOR
15 CITIES OF THE FIRST CLASS; FURTHER PROVIDING FOR SETTLEMENT
16 AND RESETTLEMENT OF THE CORPORATE NET INCOME TAX; AND MAKING
17 A REPEAL.
18 The General Assembly of the Commonwealth of Pennsylvania
19 hereby enacts as follows:
20 Section 1. Section 201(b) of the act of March 4, 1971
21 (P.L.6, No.2), known as the Tax Reform Code of 1971, amended
22 August 4, 1991 (P.L.97, No.22) and June 30, 1995 (P.L.139,
1 No.21), is amended to read:
2 Section 201. Definitions.--The following words, terms and
3 phrases when used in this Article II shall have the meaning
4 ascribed to them in this section, except where the context
5 clearly indicates a different meaning:
6 * * *
7 (b) "Maintaining a place of business in this Commonwealth."
8 (1) Having [or], maintaining or using within this
9 Commonwealth, directly or by [a] an agent or subsidiary, an
10 office, distribution house, sales house, warehouse, service
11 enterprise or other place of business, or any agent of general
12 or restricted authority irrespective of whether the place of
13 business or agent is located here permanently or temporarily or
14 whether the person or subsidiary maintaining such place of
15 business or agent is authorized to do business within this
16 Commonwealth; or
17 (2) The engaging in any activity as a business within this
18 Commonwealth by any person, directly or by [a] an agent or
19 subsidiary, in connection with the lease, sale or delivery of
20 tangible personal property or the performance of services
21 thereon for use, storage or consumption or in connection with
22 the sale or delivery for use of the services described in
23 subclauses (11) through (18) of clause (k) of this section,
24 including, but not limited to, having, maintaining or using any
25 office, distribution house, sales house, warehouse or other
26 place of business, any stock of goods or any solicitor,
27 canvasser, salesman, agent or representative under its
28 authority, at its direction or with its permission, regardless
29 of whether the person or subsidiary is authorized to do business
30 in this Commonwealth.
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1 (3) Regularly or substantially soliciting orders within this
2 Commonwealth in connection with the lease, sale or delivery of
3 tangible personal property to or the performance thereon of
4 services or in connection with the sale or delivery of the
5 services described in subclauses (11) through (18) of clause (k)
6 of this section for residents of this Commonwealth by means of
7 catalogues or other advertising, whether such orders are
8 accepted within or without this Commonwealth.
9 (3.1) The entering of this Commonwealth on a regular basis
10 by any person to provide assembly, service or repair for
11 tangible personal property, either directly or indirectly
12 through an agent or subsidiary.
13 (3.2) Delivering tangible personal property to residences,
14 places of business or other locations within this Commonwealth
15 on a regular basis when such delivery also includes the
16 unpacking or assembling of such tangible personal property.
17 (3.3) Having any other contact with this Commonwealth that
18 would allow the Commonwealth to require a person to collect and
19 remit tax under the Constitution of the United States.
20 (4) The term "maintaining a place of business in this
21 Commonwealth" shall not include:
22 (i) Owning or leasing of tangible or intangible property by
23 a person who has contracted with an unaffiliated commercial
24 printer for printing, provided that:
25 (A) the property is for use by the commercial printer; and
26 (B) the property is located at the Pennsylvania premises of
27 the commercial printer.
28 (ii) Visits by a person's employes or agents to the premises
29 in this Commonwealth of an unaffiliated commercial printer with
30 whom the person has contracted for printing in connection with
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1 said contract.
2 * * *
3 Section 2. Section 237(b) of the act, amended December 28,
4 1972 (P.L.1633, No.340) and May 24, 2000 (P.L.106, No.23), is
5 amended to read:
6 Section 237. Collection of Tax.--* * *
7 (b) Collection by Persons Maintaining a Place of Business in
8 the Commonwealth. (1) Every person maintaining a place of
9 business in this Commonwealth and selling or leasing tangible
10 personal property or services, the sale or use of which is
11 subject to tax shall collect the tax from the purchaser or
12 lessee at the time of making the sale or lease, and shall remit
13 the tax to the department, unless such collection and remittance
14 is otherwise provided for in this article.
15 (1.1) Every person maintaining a place of business in this
16 Commonwealth who delivers tangible personal property to a
17 location within this Commonwealth and also unpacks or assembles
18 such tangible personal property shall collect the tax from the
19 purchaser at the time of delivery, and shall remit the tax to
20 the department: Provided, however, That this collection
21 obligation shall apply only if the person delivering the
22 tangible personal property is responsible for collecting all or
23 any portion of the purchase price on behalf of the seller and
24 such person has not obtained from the seller a certification
25 that the tax due under this article has been or will be
26 collected by the seller or that the purchaser has provided the
27 seller with a valid exemption certificate. Every person required
28 to collect tax under this subclause shall be deemed to be
29 selling or leasing services or tangible personal property, the
30 sale or use of which is subject to tax, for purposes of this
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1 article.
2 (2) Any person required under this article to collect tax
3 from another person, who shall fail to collect the proper amount
4 of such tax, shall be liable for the full amount of the tax
5 which he should have collected.
6 * * *
7 Section 3. Section 248.3 of the act, added December 22, 1983
8 (P.L.300, No.82), is amended by adding a subsection to read:
9 Section 248.3. Seizure of Property.--(a) If a transient
10 vendor conducting business within the Commonwealth fails to
11 exhibit a valid certificate upon demand by authorized employes
12 of the department, those authorized employes shall have the
13 authority to seize, without warrant, the tangible personal
14 property and the automobile, truck or other means of
15 transportation used to transport or carry that property. All
16 property seized shall be deemed contraband and shall be subject
17 to immediate forfeiture proceedings instituted by the department
18 pursuant to procedures adopted by regulation, except as
19 otherwise provided by this section.
20 (b) Property seized pursuant to subsection (a) shall be
21 released upon:
22 (1) Presentation of a valid certificate to authorized
23 employes of the department; or
24 (2) Registration by the transient vendor with the department
25 and the posting of a bond in the amount of five hundred dollars
26 ($500), either immediately or within fifteen days after the
27 property is seized.
28 (c) If a person required to collect tax under section
29 237(b)(1.1) fails to provide a valid sales tax license number
30 upon demand by authorized employes of the department, the
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1 employes shall have the authority to seize, without warrant,
2 such person's truck or other means of transportation used to
3 transport or carry tangible personal property delivered to any
4 location within this Commonwealth. All property seized pursuant
5 to this subsection shall be deemed contraband and shall be
6 subject to immediate forfeiture proceedings instituted by the
7 department pursuant to the procedures adopted by regulation for
8 the forfeiture of property seized from transient vendors, except
9 that property seized pursuant to this subsection shall be
10 released upon presentation to authorized employes of the
11 department, within twenty days after the property is seized, of
12 satisfactory proof that a sales tax license number has been
13 obtained or applied for and that all delinquent tax returns, if
14 any, have been filed with the department and all tax reported on
15 such returns has been paid.
16 SECTION 4. THE ACT IS AMENDED BY ADDING A SECTION TO READ: <--
17 SECTION 203-A. SITUS FOR IMPOSITION OF SALES AND USE TAX FOR
18 PENNSYLVANIA INTERGOVERNMENTAL AUTHORITY FOR CITIES OF THE FIRST
19 CLASS.--(A) FOR PURPOSES OF CHAPTER 5 OF THE ACT OF JUNE 5,
20 1991 (P.L.9, NO.6), KNOWN AS THE "PENNSYLVANIA INTERGOVERNMENTAL
21 COOPERATION AUTHORITY ACT FOR CITIES OF THE FIRST CLASS" AND
22 EXCEPT AS OTHERWISE PROVIDED IN THIS SUBSECTION, A SALE AT
23 RETAIL SHALL BE DEEMED TO BE CONSUMMATED AT THE PLACE OF
24 BUSINESS OF THE RETAILER UNLESS THE TANGIBLE PERSONAL PROPERTY
25 SOLD IS DELIVERED BY THE RETAILER OR HIS AGENT TO A DESTINATION
26 OUTSIDE THE CITY IMPOSING THE TAX OR TO A COMMON CARRIER FOR
27 DELIVERY TO A DESTINATION OUTSIDE THE CITY IMPOSING THE TAX OR
28 THE UNITED STATES MAILS FOR DELIVERY TO A DESTINATION OUTSIDE
29 THE CITY IMPOSING THE TAX. IN THE EVENT A RETAILER HAS MORE THAN
30 ONE PLACE OF BUSINESS IN THIS COMMONWEALTH WHICH PARTICIPATES IN
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1 THE SALE, THE SALE SHALL BE DEEMED TO BE CONSUMMATED AT THE
2 PLACE OF BUSINESS OF THE RETAILER WHERE THE INITIAL ORDER FOR
3 THE TANGIBLE PERSONAL PROPERTY IS TAKEN, EVEN THOUGH THE ORDER
4 MUST BE FORWARDED ELSEWHERE FOR ACCEPTANCE, APPROVAL OF CREDIT,
5 SHIPMENT OR BILLING. A SALE BY A RETAILER'S EMPLOYE SHALL BE
6 DEEMED TO BE CONSUMMATED AT THE PLACE OF BUSINESS FROM WHICH
7 THAT EMPLOYE WORKS.
8 (B) THE SALE AT RETAIL OR USE OF A MOTOR VEHICLE, TRAILER,
9 SEMITRAILER OR MOBILE HOME, AS DEFINED IN 75 PA.C.S. (RELATING
10 TO VEHICLES), OR OF A MOTORBOAT, AIRCRAFT OR OTHER SIMILAR
11 TANGIBLE PERSONAL PROPERTY, REQUIRED UNDER EITHER FEDERAL OR
12 STATE LAWS TO BE REGISTERED OR LICENSED, SHALL BE DEEMED TO HAVE
13 BEEN COMPLETED OR USED AT THE ADDRESS OF THE PURCHASER OR USER.
14 THE TAX DUE SHALL BE PAID BY THE PURCHASER OR USER DIRECTLY TO
15 THE DEPARTMENT OF TRANSPORTATION AT THE TIME OF MAKING
16 APPLICATION FOR THE ISSUANCE OF A CERTIFICATE OF TITLE OR
17 DIRECTLY TO THE DEPARTMENT IF LICENSING BY THE DEPARTMENT OF
18 TRANSPORTATION IS NOT REQUIRED OR OBTAINED.
19 (C) THE SALE OR USE OF STEAM, NATURAL AND MANUFACTURED GAS,
20 ELECTRICITY, AND TELEPHONE AND TELEGRAPH SERVICE SHALL BE DEEMED
21 TO OCCUR AT THE SERVICE ADDRESS IN THE CITY, WHICH IS THE
22 ADDRESS WHERE THE TELEPHONE EQUIPMENT IS LOCATED AND TO WHICH
23 THE TELEPHONE NUMBER IS ASSIGNED OR WHERE THE TELEGRAPH
24 ORIGINATED OR WHERE THE METER WHICH REGISTERS THE SERVICE IS
25 LOCATED, WITHOUT REGARD TO WHERE THE SERVICES ARE RENDERED.
26 (D) A CROSS-REFERENCE TO SECTION 504 OF THE "PENNSYLVANIA
27 INTERGOVERNMENTAL COOPERATION AUTHORITY ACT FOR CITIES OF THE
28 FIRST CLASS" THAT IS CONTAINED IN SECTION 3153-B OF ACT OF JULY
29 28, 1953 (P.L.723, NO.230), KNOWN AS THE "SECOND CLASS COUNTY
30 CODE," SHALL BE DEEMED TO BE A REFERENCE TO FORMER SECTION 504
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1 OF THE "PENNSYLVANIA INTERGOVERNMENTAL COOPERATION AUTHORITY ACT
2 FOR CITIES OF THE FIRST CLASS" AS IT EXISTED ON JANUARY 1, 2001,
3 UNLESS OTHERWISE PROVIDED IN THE "SECOND CLASS COUNTY CODE."
4 SECTION 5. SECTION 407(D) OF THE ACT, AMENDED AUGUST 4, 1991
5 (P.L.97, NO.22), IS AMENDED TO READ:
6 SECTION 407. SETTLEMENT AND RESETTLEMENT.--* * *
7 (D) (1) IF ANY CORPORATION SHALL NEGLECT OR REFUSE TO MAKE
8 ANY REPORT AND PAYMENT OF TAX REQUIRED BY THIS ARTICLE, THE
9 DEPARTMENT SHALL ESTIMATE THE TAX DUE BY SUCH CORPORATION AND
10 SUBJECT TO AUDIT AND APPROVAL BY THE DEPARTMENT OF THE AUDITOR
11 GENERAL, SETTLE THE AMOUNT DUE BY IT FOR TAXES, PENALTIES, AND
12 INTEREST THEREON AS PRESCRIBED HEREIN, FROM WHICH SETTLEMENT
13 THERE SHALL BE NO RIGHT OF REVIEW OR APPEAL, BUT THE DEPARTMENT,
14 WITH THE APPROVAL OF THE DEPARTMENT OF THE AUDITOR GENERAL, MAY
15 REQUIRE A REPORT TO BE FILED, AND THEREUPON MAKE A SETTLEMENT
16 BASED UPON SUCH REPORT AND CANCEL THE ESTIMATED SETTLEMENT.
17 (2) IF THE DEPARTMENT FINDS THAT A CORPORATION DESIGNS
18 QUICKLY TO DEPART FROM THIS COMMONWEALTH, REMOVE PROPERTY FROM
19 THIS COMMONWEALTH OR DO ANY OTHER ACT THAT MAY PREJUDICE OR
20 RENDER WHOLLY OR PARTLY INEFFECTUAL AN ACTION TO COLLECT ANY
21 TAX, PENALTY OR INTEREST DUE UNDER THIS ARTICLE, WHEREBY IT
22 BECOMES IMPORTANT THAT SUCH PROCEEDINGS BE BROUGHT WITHOUT
23 DELAY, THE DEPARTMENT MAY IMMEDIATELY MAKE AN ESTIMATED
24 ASSESSMENT OF TAXES, PENALTIES AND INTEREST DUE UNDER THIS
25 ARTICLE WHETHER OR NOT ANY REPORT IS THEN DUE BY LAW AND MAY
26 PROCEED UNDER SUCH ESTIMATED ASSESSMENT TO COLLECT THE TAX,
27 PENALTIES AND INTEREST, OR COMPEL SECURITY FOR THE SAME, AND
28 THEREAFTER SHALL CAUSE NOTICE OF SUCH FINDING TO BE GIVEN TO
29 SUCH CORPORATION, TOGETHER WITH A DEMAND FOR AN IMMEDIATE REPORT
30 AND IMMEDIATE PAYMENT OF SUCH TAX, PENALTIES AND INTEREST. IF
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1 THE CORPORATION RECEIVING AN ESTIMATED ASSESSMENT FILES ALL
2 REQUIRED REPORTS, THE ESTIMATED ASSESSMENT SHALL BE CANCELED
3 AFTER SUCH REPORTS HAVE BEEN SETTLED UNDER THIS SECTION AND THE
4 CORPORATION HAS PAID THE TAXES, PENALTIES AND INTEREST DUE UNDER
5 SUCH SETTLEMENT.
6 SECTION 6. SECTION 504 OF THE ACT OF JUNE 5, 1991 (P.L.9,
7 NO.6), KNOWN AS THE PENNSYLVANIA INTERGOVERNMENTAL COOPERATION
8 AUTHORITY ACT FOR CITIES OF THE FIRST CLASS, IS REPEALED.
9 Section 4 7. This act shall take effect in 60 days. <--
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