PRINTER'S NO. 856
No. 792 Session of 1993
INTRODUCED BY CLYMER, FARGO, GODSHALL, HECKLER, JADLOWIEC,
HASAY, HESS, PITTS, FLICK, B. SMITH, DEMPSEY, M. N. WRIGHT,
SAURMAN, E. Z. TAYLOR, REBER, LEH, TULLI, MARSICO, BARLEY,
BROWN, CORNELL, LAUGHLIN, FARMER, PICCOLA, DRUCE, PERZEL,
SCHULER, BIRMELIN, LYNCH, GERLACH, CLARK, GANNON, FAJT, KING,
MERRY, TOMLINSON, L. I. COHEN, SERAFINI, REINARD, RAYMOND,
STERN, ROHRER AND ADOLPH, MARCH 22, 1993
REFERRED TO COMMITTEE ON FINANCE, MARCH 22, 1993
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," repealing provisions imposing sales and use tax
11 on lobbying services.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Section 201(b), (f), (g), (k), (o) and (x) of the
15 act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code
16 of 1971, amended or added August 4, 1991 (P.L.97, No.22) and
17 December 13, 1991 (P.L.373, No.40), are amended to read:
18 Section 201. Definitions.--The following words, terms and
19 phrases when used in this Article II shall have the meaning
20 ascribed to them in this section, except where the context
1 clearly indicates a different meaning:
2 * * *
3 (b) "Maintaining a place of business in this Commonwealth."
4 (1) Having or maintaining within this Commonwealth, directly
5 or by a subsidiary, an office, distribution house, sales house,
6 warehouse, service enterprise or other place of business, or any
7 agent of general or restricted authority irrespective of whether
8 the place of business or agent is located here permanently or
9 temporarily or whether the person or subsidiary maintaining such
10 place of business or agent is authorized to do business within
11 this Commonwealth; [or]
12 (2) The engaging in any activity as a business within this
13 Commonwealth by any person, directly or by a subsidiary, in
14 connection with the lease, sale or delivery of tangible personal
15 property or the performance of services thereon for use, storage
16 or consumption or in connection with the sale or delivery for
17 use of the services described in subclauses [(11)] (12) through
18 (18) of clause (k) of this section including, but not limited
19 to, having, maintaining or using any office, distribution house,
20 sales house, warehouse or other place of business, any stock of
21 goods or any solicitor, salesman, agent or representative under
22 its authority, at its direction or with its permission,
23 regardless of whether the person or subsidiary is authorized to
24 do business in this Commonwealth[.]; or
25 (3) Regularly or substantially soliciting orders within this
26 Commonwealth in connection with the lease, sale or delivery of
27 tangible personal property to or the performance thereon of
28 services or in connection with the sale or delivery of the
29 services described in subclauses [(11)] (12) through (18) of
30 clause (k) of this section for residents of this Commonwealth by
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1 means of catalogues or other advertising, whether such orders
2 are accepted within or without this Commonwealth.
3 * * *
4 (f) "Purchase at retail."
5 (1) The acquisition for a consideration of the ownership,
6 custody or possession of tangible personal property other than
7 for resale by the person acquiring the same when such
8 acquisition is made for the purpose of consumption or use,
9 whether such acquisition shall be absolute or conditional, and
10 by whatsoever means the same shall have been effected.
11 (2) The acquisition of a license to use or consume, and the
12 rental or lease of tangible personal property, other than for
13 resale regardless of the period of time the lessee has
14 possession or custody of the property.
15 (3) The obtaining for a consideration of those services
16 described in subclauses (2), (3) and (4) of clause (k) of this
17 section other than for resale.
18 (4) A retention after March 7, 1956, of possession, custody
19 or a license to use or consume pursuant to a rental contract or
20 other lease arrangement (other than as security), other than for
21 resale.
22 (5) The obtaining for a consideration of those services
23 described in subclauses [(11)] (12) through (18) of clause (k)
24 of this section.
25 The term "purchase at retail" with respect to "liquor" and
26 "malt or brewed beverages" shall include the purchase of
27 "liquor" from any "Pennsylvania Liquor Store" by any person for
28 any purpose, and the purchase of "malt or brewed beverages" from
29 a "manufacturer of malt or brewed beverages," "distributor" or
30 "importing distributor" by any person for any purpose, except
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1 purchases from a "manufacturer of malt or brewed beverages" by a
2 "distributor" or "importing distributor" or purchases from an
3 "importing distributor" by a "distributor" within the meaning of
4 the "Liquor Code." The term "purchase at retail" shall not
5 include any purchase of "malt or brewed beverages" from a
6 "retail dispenser" or any purchase of "liquor" or "malt or
7 brewed beverages" from a person holding a "retail liquor
8 license" within the meaning of and pursuant to the provisions of
9 the "Liquor Code," but shall include any purchase or acquisition
10 of "liquor" or "malt or brewed beverages" other than pursuant to
11 the provisions of the "Liquor Code."
12 (g) "Purchase price."
13 (1) The total value of anything paid or delivered, or
14 promised to be paid or delivered, whether it be money or
15 otherwise, in complete performance of a sale at retail or
16 purchase at retail, as herein defined, without any deduction on
17 account of the cost or value of the property sold, cost or value
18 of transportation, cost or value of labor or service, interest
19 or discount paid or allowed after the sale is consummated, any
20 other taxes imposed by the Commonwealth of Pennsylvania or any
21 other expense except that there shall be excluded any gratuity
22 or separately stated deposit charge for returnable containers.
23 (2) There shall be deducted from the purchase price the
24 value of any tangible personal property actually taken in trade
25 or exchange in lieu of the whole or any part of the purchase
26 price. For the purpose of this clause, the amount allowed by
27 reason of tangible personal property actually taken in trade or
28 exchange shall be considered the value of such property.
29 (3) In determining the purchase price on the sale or use of
30 taxable tangible personal property or a service described in
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1 subclauses (12) through (18) of clause (k) of this section
2 where, because of affiliation of interests between the vendor
3 and purchaser, or irrespective of any such affiliation, if for
4 any other reason the purchase price declared by the vendor or
5 taxpayer on the taxable sale or use of such tangible personal
6 property or service is, in the opinion of the department, not
7 indicative of the true value of the article or service or the
8 fair price thereof, the department shall, pursuant to uniform
9 and equitable rules, determine the amount of constructive
10 purchase price upon the basis of which the tax shall be computed
11 and levied. Such rules shall provide for a constructive amount
12 of purchase price for each such sale or use which would
13 naturally and fairly be charged in an arms-length transaction in
14 which the element of common interest between the vendor or
15 purchaser is absent or if no common interest exists, any other
16 element causing a distortion of the price or value is likewise
17 absent. For the purpose of this clause where a taxable sale or
18 purchase at retail transaction occurs between a parent and a
19 subsidiary, affiliate or controlled corporation of such parent
20 corporation, there shall be a rebuttable presumption, that
21 because of such common interest such transaction was not at
22 arms-length.
23 (4) Where there is a transfer or retention of possession or
24 custody, whether it be termed a rental, lease, service or
25 otherwise, of tangible personal property including, but not
26 limited to linens, aprons, motor vehicles, trailers, tires,
27 industrial office and construction equipment, and business
28 machines the full consideration paid or delivered to the vendor
29 or lessor shall be considered the purchase price, even though
30 such consideration be separately stated and be designated as
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1 payment for processing, laundering, service, maintenance,
2 insurance, repairs, depreciation or otherwise. Where the vendor
3 or lessor supplies or provides an employe to operate such
4 tangible personal property, the value of the labor thus supplied
5 may be excluded and shall not be considered as part of the
6 purchase price if separately stated. There shall also be
7 included as part of the purchase price the value of anything
8 paid or delivered, or promised to be paid or delivered by a
9 lessee, whether it be money or otherwise, to any person other
10 than the vendor or lessor by reason of the maintenance,
11 insurance or repair of the tangible personal property which a
12 lessee has the possession or custody of under a rental contract
13 or lease arrangement.
14 (5) With respect to the tax imposed by subsection (b) of
15 section 202 upon any tangible personal property originally
16 purchased by the user of such property six months or longer
17 prior to the first taxable use of such property within the
18 Commonwealth, such user may elect to pay tax on a substituted
19 base determined by considering the purchase price of such
20 property for tax purposes to be equal to the prevailing market
21 price of similar tangible personal property at the time and
22 place of such first use within the Commonwealth. Such election
23 must be made at the time of filing a tax return with the
24 department and reporting such tax liability and paying the
25 proper tax due plus all accrued penalties and interest, if there
26 be any, within six months of the due date of such report and
27 payment, as provided for by subsections (a) and (c) of section
28 217 of this article.
29 (6) The purchase price of employment agency services and
30 help supply services shall be the service fee paid by the
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1 purchaser to the vendor or supplying entity. The term "service
2 fee," as used in this subclause, shall be the total charge or
3 fee of the vendor or supplying entity minus the costs of the
4 supplied employe which costs are wages, salaries, bonuses and
5 commissions, employment benefits, expense reimbursements and
6 payroll and withholding taxes, to the extent that these costs
7 are specifically itemized or that these costs in aggregate are
8 stated in billings from the vendor or supplying entity. To the
9 extent that these costs are not itemized or stated on the
10 billings, then the service fee shall be the total charge or fee
11 of the vendor or supplying entity.
12 (7) Unless the vendor separately states that portion of the
13 billing which applies to premium cable service as defined in
14 clause (ll) of this section, the total bill for the provision of
15 all cable services shall be the purchase price.
16 * * *
17 (k) "Sale at retail."
18 (1) Any transfer, for a consideration, of the ownership,
19 custody or possession of tangible personal property, including
20 the grant of a license to use or consume whether such transfer
21 be absolute or conditional and by whatsoever means the same
22 shall have been effected.
23 (2) The rendition of the service of printing or imprinting
24 of tangible personal property for a consideration for persons
25 who furnish, either directly or indirectly the materials used in
26 the printing or imprinting.
27 (3) The rendition for a consideration of the service of--
28 (i) Washing, cleaning, waxing, polishing or lubricating of
29 motor vehicles of another, whether or not any tangible personal
30 property is transferred in conjunction therewith; and
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1 (ii) Inspecting motor vehicles pursuant to the mandatory
2 requirements of "The Vehicle Code."
3 (4) The rendition for a consideration of the service of
4 repairing, altering, mending, pressing, fitting, dyeing,
5 laundering, drycleaning or cleaning tangible personal property
6 other than wearing apparel or shoes, or applying or installing
7 tangible personal property as a repair or replacement part of
8 other tangible personal property except wearing apparel or shoes
9 for a consideration, whether or not the services are performed
10 directly or by any means other than by coin-operated self-
11 service laundry equipment for wearing apparel or household goods
12 and whether or not any tangible personal property is transferred
13 in conjunction therewith, except such services as are rendered
14 in the construction, reconstruction, remodeling, repair or
15 maintenance of real estate: Provided, however, That this
16 subclause shall not be deemed to impose tax upon such services
17 in the preparation for sale of new items which are excluded from
18 the tax under clause (26) of section 204, or upon diaper
19 service.
20 (8) Any retention of possession, custody or a license to use
21 or consume tangible personal property or any further obtaining
22 of services described in subclauses (2), (3) and (4) of this
23 clause pursuant to a rental or service contract or other
24 arrangement (other than as security).
25 The term "sale at retail" shall not include (i) any such
26 transfer of tangible personal property or rendition of services
27 for the purpose of resale, or (ii) such rendition of services or
28 the transfer of tangible personal property including, but not
29 limited to, machinery and equipment and parts therefor and
30 supplies to be used or consumed by the purchaser directly in the
19930H0792B0856 - 8 -
1 operations of--
2 (A) The manufacture of tangible personal property;
3 (B) Farming, dairying, agriculture, horticulture or
4 floriculture when engaged in as a business enterprise. The term
5 "farming" shall include the propagation and raising of ranch
6 raised fur-bearing animals and the propagation of game birds for
7 commercial purposes by holders of propagation permits issued
8 under 34 Pa.C.S. (relating to game);
9 (C) The producing, delivering or rendering of a public
10 utility service, or in constructing, reconstructing, remodeling,
11 repairing or maintaining the facilities which are directly used
12 in producing, delivering or rendering such service;
13 (D) Processing as defined in clause (d) of this section.
14 The exclusions provided in paragraphs (A), (B), (C) and (D)
15 shall not apply to any vehicle required to be registered under
16 The Vehicle Code, except those vehicles used directly by a
17 public utility engaged in business as a common carrier; to
18 maintenance facilities; or to materials, supplies or equipment
19 to be used or consumed in the construction, reconstruction,
20 remodeling, repair or maintenance of real estate other than
21 directly used machinery, equipment, parts or foundations
22 therefor that may be affixed to such real estate.
23 The exclusions provided in paragraphs (A), (B), (C) and (D)
24 shall not apply to tangible personal property or services to be
25 used or consumed in managerial sales or other nonoperational
26 activities, nor to the purchase or use of tangible personal
27 property or services by any person other than the person
28 directly using the same in the operations described in
29 paragraphs (A), (B), (C) and (D) herein.
30 The exclusion provided in paragraph (C) shall not apply to
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1 (i) construction materials, supplies or equipment used to
2 construct, reconstruct, remodel, repair or maintain facilities
3 not used directly by the purchaser in the production, delivering
4 or rendition of public utility service, (ii) construction
5 materials, supplies or equipment used to construct, reconstruct,
6 remodel, repair or maintain a building, road or similar
7 structure, or (iii) tools and equipment used but not installed
8 in the maintenance of facilities used directly in the
9 production, delivering or rendition of a public utility service.
10 The exclusions provided in paragraphs (A), (B), (C) and (D)
11 shall not apply to the services enumerated in clauses [(k)(11)]
12 (k)(12) through (18) and [(w)] (x) through (kk), except that the
13 exclusion provided in this subclause for farming, dairying and
14 agriculture shall apply to the service enumerated in clause (z).
15 (9) Where tangible personal property or services are
16 utilized for purposes constituting a "sale at retail" and for
17 purposes excluded from the definition of "sale at retail," it
18 shall be presumed that such tangible personal property or
19 services are utilized for purposes constituting a "sale at
20 retail" and subject to tax unless the user thereof proves to the
21 department that the predominant purposes for which such tangible
22 personal property or services are utilized do not constitute a
23 "sale at retail."
24 (10) The term "sale at retail" with respect to "liquor" and
25 "malt or brewed beverages" shall include the sale of "liquor" by
26 any "Pennsylvania liquor store" to any person for any purpose,
27 and the sale of "malt or brewed beverages" by a "manufacturer of
28 malt or brewed beverages," "distributor" or "importing
29 distributor" to any person for any purpose, except sales by a
30 "manufacturer of malt or brewed beverages" to a "distributor" or
19930H0792B0856 - 10 -
1 "importing distributor" or sales by an "importing distributor"
2 to a "distributor" within the meaning of the "Liquor Code." The
3 term "sale at retail" shall not include any sale of "malt or
4 brewed beverages" by a "retail dispenser" or any sale of
5 "liquor" or "malt or brewed beverages" by a person holding a
6 "retail liquor license" within the meaning of and pursuant to
7 the provisions of the "Liquor Code," but shall include any sale
8 of "liquor" or "malt or brewed beverages" other than pursuant to
9 the provisions of the "Liquor Code."
10 [(11) The rendition for a consideration of lobbying
11 services.]
12 (12) The rendition for a consideration of adjustment
13 services, collection services or credit reporting services.
14 (13) The rendition for a consideration of secretarial or
15 editing services.
16 (14) The rendition for a consideration of disinfecting or
17 pest control services, building maintenance or cleaning
18 services.
19 (15) The rendition for a consideration of employment agency
20 services or help supply services.
21 (16) The rendition for a consideration of computer
22 programming services; computer-integrated systems design
23 services; computer processing, data preparation or processing
24 services; information retrieval services; computer facilities
25 management services; or other computer-related services. At a
26 minimum, such services shall not include services that are part
27 of electronic fund transfers, electronic financial transactions
28 or services, banking or trust services, or management or
29 administrative services, including transfer agency, shareholder,
30 custodial and portfolio accounting services, provided directly
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1 to any entity that duly qualifies to be taxed as a regulated
2 investment company or a real estate investment trust under the
3 provisions of the Internal Revenue Code of 1986 (Public Law 99-
4 514, 26 U.S.C. § 1 et seq.) or to an entity that provides such
5 services to an entity so qualifying.
6 (17) The rendition for a consideration of lawn care service.
7 (18) The rendition for a consideration of self-storage
8 service.
9 * * *
10 (o) "Use."
11 (1) The exercise of any right or power incidental to the
12 ownership, custody or possession of tangible personal property
13 and shall include, but not be limited to transportation, storage
14 or consumption.
15 (2) The obtaining by a purchaser of the service of printing
16 or imprinting of tangible personal property when such purchaser
17 furnishes, either directly or indirectly, the articles used in
18 the printing or imprinting.
19 (3) The obtaining by a purchaser of the services of (i)
20 washing, cleaning, waxing, polishing or lubricating of motor
21 vehicles whether or not any tangible personal property is
22 transferred to the purchaser in conjunction with such services,
23 and (ii) inspecting motor vehicles pursuant to the mandatory
24 requirements of "The Vehicle Code."
25 (4) The obtaining by a purchaser of the service of
26 repairing, altering, mending, pressing, fitting, dyeing,
27 laundering, drycleaning or cleaning tangible personal property
28 other than wearing apparel or shoes or applying or installing
29 tangible personal property as a repair or replacement part of
30 other tangible personal property other than wearing apparel or
19930H0792B0856 - 12 -
1 shoes, whether or not the services are performed directly or by
2 any means other than by means of coin-operated self-service
3 laundry equipment for wearing apparel or household goods, and
4 whether or not any tangible personal property is transferred to
5 the purchaser in conjunction therewith, except such services as
6 are obtained in the construction, reconstruction, remodeling,
7 repair or maintenance of real estate: Provided, however, That
8 this subclause shall not be deemed to impose tax upon such
9 services in the preparation for sale of new items which are
10 excluded from the tax under clause (26) of section 204, or upon
11 diaper service: And provided further, That the term "use" shall
12 not include--
13 (A) Any tangible personal property acquired and kept,
14 retained or over which power is exercised within this
15 Commonwealth on which the taxing of the storage, use or other
16 consumption thereof is expressly prohibited by the Constitution
17 of the United States or which is excluded from tax under other
18 provisions of this article.
19 (B) The use or consumption of tangible personal property,
20 including but not limited to machinery and equipment and parts
21 therefor, and supplies or the obtaining of the services
22 described in subclauses (2), (3) and (4) of this clause directly
23 in the operations of--
24 (i) The manufacture of tangible personal property;
25 (ii) Farming, dairying, agriculture, horticulture or
26 floriculture when engaged in as a business enterprise. The term
27 "farming" shall include the propagation and raising of ranch
28 raised furbearing animals and the propagation of game birds for
29 commercial purposes by holders of propagation permits issued
30 under 34 Pa.C.S. (relating to game);
19930H0792B0856 - 13 -
1 (iii) The producing, delivering or rendering of a public
2 utility service, or in constructing, reconstructing, remodeling,
3 repairing or maintaining the facilities which are directly used
4 in producing, delivering or rendering such service;
5 (iv) Processing as defined in subclause (d) of this section.
6 The exclusions provided in subparagraphs (i), (ii), (iii) and
7 (iv) shall not apply to any vehicle required to be registered
8 under The Vehicle Code except those vehicles directly used by a
9 public utility engaged in the business as a common carrier; to
10 maintenance facilities; or to materials, supplies or equipment
11 to be used or consumed in the construction, reconstruction,
12 remodeling, repair or maintenance of real estate other than
13 directly used machinery, equipment, parts or foundations
14 therefor that may be affixed to such real estate. The exclusions
15 provided in subparagraphs (i), (ii), (iii) and (iv) shall not
16 apply to tangible personal property or services to be used or
17 consumed in managerial sales or other nonoperational activities,
18 nor to the purchase or use of tangible personal property or
19 services by any person other than the person directly using the
20 same in the operations described in subparagraphs (i), (ii),
21 (iii) and (iv).
22 The exclusion provided in subparagraph (iii) shall not apply
23 to (A) construction materials, supplies or equipment used to
24 construct, reconstruct, remodel, repair or maintain facilities
25 not used directly by the purchaser in the production, delivering
26 or rendition of public utility service or (B) tools and
27 equipment used but not installed in the maintenance of
28 facilities used directly in the production, delivering or
29 rendition of a public utility service.
30 The exclusion provided in subparagraphs (i), (ii), (iii) and
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1 (iv) shall not apply to the services enumerated in clauses
2 [(o)(9)] (o)(10) through (16) and [(w)] (x) through (kk), except
3 that the exclusion provided in subparagraph (ii) for farming,
4 dairying and agriculture shall apply to the service enumerated
5 in clause (z).
6 (5) Where tangible personal property or services are
7 utilized for purposes constituting a "use," as herein defined,
8 and for purposes excluded from the definition of "use," it shall
9 be presumed that such property or services are utilized for
10 purposes constituting a "sale at retail" and subject to tax
11 unless the user thereof proves to the department that the
12 predominant purposes for which such property or services are
13 utilized do not constitute a "sale at retail."
14 (6) The term "use" with respect to "liquor" and "malt or
15 brewed beverages" shall include the purchase of "liquor" from
16 any "Pennsylvania liquor store" by any person for any purpose
17 and the purchase of "malt or brewed beverages" from a
18 "manufacturer of malt or brewed beverages," "distributor" or
19 "importing distributor" by any person for any purpose, except
20 purchases from a "manufacturer of malt or brewed beverages" by a
21 "distributor" or "importing distributor," or purchases from an
22 "importing distributor" by a "distributor" within the meaning of
23 the "Liquor Code." The term "use" shall not include any purchase
24 of "malt or brewed beverages" from a "retail dispenser" or any
25 purchase of "liquor" or "malt or brewed beverages" from a person
26 holding a "retail liquor license" within the meaning of and
27 pursuant to the provisions of the "Liquor Code," but shall
28 include the exercise of any right or power incidental to the
29 ownership, custody or possession of "liquor" or "malt or brewed
30 beverages" obtained by the person exercising such right or power
19930H0792B0856 - 15 -
1 in any manner other than pursuant to the provisions of the
2 "Liquor Code."
3 (7) The use of tangible personal property purchased at
4 retail upon which the services described in subclauses (2), (3)
5 and (4) of this clause have been performed shall be deemed to be
6 a use of said services by the person using said property.
7 (8) The term "use" shall not include the providing of a
8 motor vehicle to a nonprofit private or public school to be used
9 by such a school for the sole purpose of driver education.
10 [(9) The obtaining by the purchaser of lobbying services.]
11 (10) The obtaining by the purchaser of adjustment services,
12 collection services or credit reporting services.
13 (11) The obtaining by the purchaser of secretarial or
14 editing services.
15 (12) The obtaining by the purchaser of disinfecting or pest
16 control services, building maintenance or cleaning services.
17 (13) The obtaining by the purchaser of employment agency
18 services or help supply services.
19 (14) The obtaining by the purchaser of computer programming
20 services or other computer-related services, including, but not
21 limited to, providing computer integrated systems design,
22 computer processing, data preparation or processing services,
23 information retrieval services or computer facilities management
24 services.
25 (15) The obtaining by the purchaser of lawn care service.
26 (16) The obtaining by the purchaser of self-storage service.
27 * * *
28 [(w) "Lobbying services." Providing the services of a
29 lobbyist, as defined in the definition of "lobbyist" in section
30 2 of the act of September 30, 1961 (P.L.1778, No.712), known as
19930H0792B0856 - 16 -
1 the "Lobbying Registration and Regulation Act."]
2 * * *
3 Section 2. The amendment of section 201(b), (f), (g), (k),
4 (o) and (x) of the act shall be retroactive to October 1, 1991.
5 Section 3. This act shall take effect immediately.
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