PRINTER'S NO. 2398
No. 1942 Session of 1995
INTRODUCED BY KENNEY, J. TAYLOR, RAYMOND, BOYES, JAROLIN,
CORRIGAN, TIGUE AND VAN HORNE, JUNE 29, 1995
REFERRED TO COMMITTEE ON FINANCE, JUNE 29, 1995
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 malt beverage tax.
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. The definitions of "distributor" and
14 "manufacturer" in section 2002 of the act of March 4, 1971
15 (P.L.6, No.2), known as the Tax Reform Code of 1971, added
16 December 22, 1989 (P.L.775, No.110), are amended to read:
17 Section 2002. Definitions.--The following words, terms and
18 phrases, when used in this article, shall have the meanings
19 ascribed to them in this section, except where the context
20 clearly indicates a different meaning:
21 * * *
1 "[Distributor] Importing Distributor." A person whose
2 licensed premises is located in this Commonwealth and who is
3 engaged in the purchase and resale of malt or brewed beverages
4 in the original sealed packages as prepared for market by the
5 manufacturer, who is approved to post a bond and pay the taxes
6 required under the provisions of this article, including any who
7 or which:
8 (1) Imports or causes to be imported from any other state or
9 territory of the United States, or from any foreign country,
10 malt or brewed beverages for his own use in the Commonwealth, or
11 for sale and delivery in and after reaching the Commonwealth.
12 (2) Imports or causes to be imported from any other state or
13 territory of the United States, or from any foreign country,
14 malt or brewed beverages for his own use in the Commonwealth, or
15 for sale or delivery therein, after the same have come to rest
16 or storage therein, in the original package, receptacle or
17 container.
18 (3) Purchases or receives malt or brewed beverages in the
19 original package, receptacle or container in the Commonwealth
20 for his own use, or for sale and delivery therein, from any
21 person who has imported the same from a foreign country.
22 (4) Purchases or receives malt or brewed beverages in the
23 original package, receptacle or container in the Commonwealth
24 for his own use therein, or for sale and delivery therein, from
25 any person who has imported the same from any other state or
26 territory of the United States, in case such malt or brewed
27 beverages have not, prior to such purchase or receipt, come to
28 rest or storage in the Commonwealth.
29 * * *
30 "Manufacturer." A person engaged in the brewing or
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1 manufacturing of malt or brewed beverages for sale, and, [for
2 the purposes of posting bond and payment of taxes] whose
3 licensed premises is located in this Commonwealth and who is
4 approved to post a bond and pay the taxes required under the
5 provisions of this article, [shall include importing agents for
6 foreign manufacturers].
7 * * *
8 Section 2. Sections 2003, 2004, 2006(a), 2007 and 2009 of
9 the act, added December 22, 1989 (P.L.775, No.110), are amended
10 to read:
11 Section 2003. Imposition of Tax.--(a) (1) Each
12 manufacturer whose licensed premises is located in this
13 Commonwealth shall be subject to pay to the Commonwealth the
14 taxes imposed by this section upon all malt or brewed beverages
15 manufactured and sold by him in this Commonwealth for use in
16 this Commonwealth or manufactured by him outside this
17 Commonwealth and sold to an importing distributor or [any
18 person] manufacturer for importation into, and use in, this
19 Commonwealth.
20 (2) Every person who ships or transports malt or brewed
21 beverages into this Commonwealth for sale, delivery or storage
22 in this Commonwealth shall do so only to a manufacturer or
23 importing distributor whose licensed premises is located in this
24 Commonwealth. Only manufacturers and importing distributors
25 whose licensed premises are located in this Commonwealth shall
26 pay to the Commonwealth the taxes imposed in this section.
27 (b) (1) Such taxes, payable in the manner prescribed in
28 subsections (a) and (b) of section 2004 of this article, shall
29 be at the rate of two-thirds cent (2/3¢) per half pint of eight
30 (8) fluid ounces or fraction thereof, and in larger quantities
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1 at the rate of one cent (1¢) per pint of sixteen (16) fluid
2 ounces or fraction thereof.
3 (2) The tax rates per original container or standard
4 fraction thereof are as follows:
5 Standard Malt Beverage
6 Fraction Tax Rate Volume
7 1 barrel $2.48 31 gal.
8 1/2 barrel 1.24 15 1/2 gal.
9 1/3 barrel .84 10 1/3 gal.
10 1/4 barrel .62 7 3/4 gal.
11 1/6 barrel .42 5 1/6 gal.
12 1/8 barrel .32 3 7/8 gal.
13 1 gallon .08
14 1/2 gallon .04
15 1 quart .02
16 1 pint .01
17 1/2 pint .0066
18 (c) If the tax shall not be paid when due, there shall be
19 added to the amount of the tax as a penalty a sum equivalent to
20 ten per cent of the amount of the tax, and in addition thereto
21 interest on the tax and penalty at the rate of one per cent per
22 month or fraction of a month from the date the tax became due
23 until paid. Nothing herein contained shall be construed to
24 relieve any person otherwise liable from liability for payment
25 of the tax.
26 (d) (1) Notwithstanding any other provision of this
27 article, a manufacturer or [his agent] importing distributor who
28 fails to file the required monthly return and pay when due the
29 tax imposed under this article shall be declared delinquent by
30 the Secretary of Revenue and shall continue to be delinquent
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1 until he files the required monthly return and pays the tax.
2 (2) During a period of delinquency no malt or brewed
3 beverages in possession or control of a manufacturer or
4 importing distributor may be removed from his licensed premises
5 for sale in the Commonwealth, nor shipped in from outside the
6 Commonwealth.
7 (e) In the event that any state, territory or country shall
8 impose upon malt or brewed beverages, which have been
9 manufactured in Pennsylvania, a higher tax or fee than is
10 imposed upon malt or brewed beverages manufactured within such
11 state, territory or country, [every manufacturer whose] any malt
12 or brewed beverages manufactured within such state, territory or
13 country which are sold to an importing distributor or [any
14 person] manufacturer for importation into, and use in, this
15 Commonwealth shall[, as to such beverages, pay to this
16 Commonwealth,] be assessed in addition to the tax imposed by
17 this section, a tax equal to such excess tax or fee which is
18 imposed in such state, territory or country on Pennsylvania
19 manufactured malt or brewed beverages. Such additional tax shall
20 be levied, assessed and collected in the same manner as the
21 other taxes imposed by this article.
22 (f) [Manufacturers] Only those manufacturers whose licensed
23 premises are located in this Commonwealth and whose malt or
24 brewed beverages are sold in this Commonwealth or are sold to
25 importing distributors or [any person] a manufacturer for
26 importation into, and use in, this Commonwealth shall be liable
27 to the Commonwealth as taxpayers for the payment of the taxes
28 imposed by this article.
29 Section 2004. Reports.--(a) Each manufacturer whose malt or
30 brewed beverages are sold in or imported into this Commonwealth
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1 shall, on or before the fifteenth day of each month, file with
2 the department, on forms prescribed by it, a verified report
3 showing for the preceding calendar month the quantities of such
4 malt and brewed beverages:
5 (1) Manufactured by him in this Commonwealth, and
6 constituting his beginning and ending inventory in this
7 Commonwealth for the month.
8 (2) Sold by him in this Commonwealth for use in this
9 Commonwealth or sold to an importing distributor or [any person]
10 manufacturer for importation into, and use in, this
11 Commonwealth, specifically naming the importing distributors or
12 manufacturer to whom such sales were made and the quantity sold
13 to each.
14 (3) Sold to purchasers or persons outside this Commonwealth
15 for exportation from, and use outside, this Commonwealth, or
16 sold in other tax-exempt transactions, naming the purchasers and
17 the quantity sold to each and specifically indicating those
18 sales or transactions to which the tax imposed by this article
19 is not applicable.
20 (4) Such additional information as the department may
21 reasonably require to assure the accuracy of the tax computation
22 and payment and the proper administration of this article.
23 (b) Each importing distributor who imports into this
24 Commonwealth shall, on or before the fifteenth day of each
25 month, file with the department, on forms prescribed by it, a
26 verified report showing for the preceding calendar month the
27 quantities of such malt or brewed beverages:
28 (1) Malt or brewed beverages constituting his beginning and
29 ending inventory in this Commonwealth for the month.
30 (2) Sold by him in this Commonwealth for use in this
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1 Commonwealth.
2 (3) Sold to purchasers or persons outside this Commonwealth
3 or exportation from, and use outside this Commonwealth, or sold
4 in other tax exempt transactions, naming the purchasers and the
5 quantity sold to each and specifically indicating those sales or
6 transactions to which the tax imposed by this act is not
7 applicable.
8 (4) Such additional information as the department may
9 reasonably require to assure the accuracy of the tax computation
10 and payment and the proper administration of this article.
11 [(b)] (c) The tax payable on all malt or brewed beverages
12 first sold in this Commonwealth for use in this Commonwealth or
13 first sold to an importing distributor or [any person]
14 manufacturer for importation into, and use in, this Commonwealth
15 during such month in the amount disclosed by the report, shall
16 accompany the report and be paid by the manufacturer whose
17 licensed premises is located in this Commonwealth and any
18 importing distributor who imports malt or brewed beverages to
19 this Commonwealth whose licensed premises is located in this
20 Commonwealth to the department.
21 [(c)] (d) Persons licensed as "Public Service Licensees,"
22 under the provisions of any law of this Commonwealth relating to
23 the sale of malt or brewed beverages:
24 (1) shall keep such records of the sales of such malt or
25 brewed beverages in this Commonwealth as the department shall
26 prescribe;
27 (2) shall, on or before the fifteenth day of each month,
28 submit monthly reports of such sales and of such other
29 information as the department may require to the department upon
30 a form prescribed by said department; and
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1 (3) shall pay the tax due on all such sales at the rate
2 provided by the provisions of this article at the time such
3 reports are filed.
4 [(d)] (e) It is the intent and purpose of this section to
5 require all manufacturers [and other persons whose malt or
6 brewed beverages are sold or used in this Commonwealth] whose
7 licensed premises are located in this Commonwealth and all
8 importing distributors whose licensed premises are located in
9 this Commonwealth to pay the tax where applicable on all such
10 malt or brewed beverages in the month following that in which
11 such beverages are first sold in this Commonwealth for use in
12 this Commonwealth or first sold to an importing distributor or
13 [any person] manufacturer for importation into and use in this
14 Commonwealth, except that as to malt or brewed beverages sold to
15 public service licensees, the public service licensees, and not
16 the manufacturer, shall report and pay the tax on all malt or
17 brewed beverages sold by them within the Commonwealth.
18 Section 2006. Bond or Surety Required.--(a) No malt or
19 brewed beverages shall be sold in or imported into the
20 Commonwealth until and unless the manufacturer [of] whose
21 licensed premises is located in this Commonwealth or importing
22 distributor whose licensed premises is located in this
23 Commonwealth and who sells such malt or brewed beverage has on
24 file with the department and in full force and effect an
25 approved bond, duly executed, payable to the Commonwealth,
26 together with a warrant of attorney to confess judgment in a sum
27 equal to the amount of his highest two month average tax
28 liability during the last year prior to the time of giving bond,
29 but in no event less than five thousand dollars ($5,000). All
30 such bonds shall be conditioned upon the payment of the tax
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1 imposed by this article and shall have as surety a duly
2 authorized surety company, or shall have deposited therewith, as
3 collateral security, cash or negotiable obligations of the
4 United States of America or the Commonwealth of Pennsylvania in
5 the same amount as herein provided for the penal sum of such
6 bonds.
7 * * *
8 Section 2007. Monthly Reports.--(a) For the purpose of
9 verifying the tax payments required by this article, it shall be
10 the duty of every manufacturer, transporter for hire, bailee for
11 hire, warehouseman, importing distributor and [retail] public
12 service licensee, on or before the fifteenth day of the
13 succeeding month, to transmit to the department, on forms
14 supplied by the department, a report, under oath or affirmation,
15 of malt or brewed beverages which were imported and came to rest
16 or storage at his place of business in this Commonwealth during
17 the preceding month, or which were transported from a point
18 outside the Commonwealth to a point within the Commonwealth.
19 Such report shall show the number of barrels, or standard
20 fraction thereof, imported, transported or stored during the
21 period for which it is made, and such further information as the
22 department shall prescribe.
23 (b) Each manufacturer, transporter for hire, bailee for
24 hire, warehouseman, importing distributor and [retail] public
25 service licensee shall maintain and keep, for a period of two
26 years, such record or records of malt or brewed beverages
27 manufactured, sold by a manufacturer or importing distributor,
28 transported from a point outside of the Commonwealth to a point
29 within the Commonwealth, imported, or substantiating the other
30 information required on his report, together with invoices,
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1 bills of lading and other pertinent papers, as may be required
2 by the department.
3 Section 2009. Refund of Tax.--(a) In case any malt or
4 brewed beverages upon which the tax has been paid by a
5 manufacturer or importing distributor have been sold or shipped
6 by him to a licensed or regular dealer in such malt or brewed
7 beverages in another state, such manufacturer or importing
8 distributor in this Commonwealth shall be entitled to a refund
9 of the actual amount of tax paid by him, upon condition that the
10 seller in this Commonwealth shall make affidavit that the malt
11 or brewed beverages were so sold and shipped, and that he shall
12 furnish from the purchaser an affidavit, or in cases where the
13 total purchase price is five dollars ($5) or less, a written
14 certificate in lieu of an affidavit from the purchaser, or, upon
15 satisfactory proof that such affidavit or certificate cannot be
16 obtained, other evidence satisfactory to the department that he
17 has received such malt or brewed beverages for sale or
18 consumption outside this Commonwealth, together with the name
19 and address of the purchaser.
20 (b) In case any malt or brewed beverages upon which the tax
21 has been paid by a manufacturer or importing distributor have
22 been sold to commissaries, ship's stores or voluntary
23 unincorporated organizations of the armed forces personnel
24 operating under regulations promulgated by the Secretary of
25 Defense, such manufacturer or importing distributor shall be
26 entitled to a refund of the actual amount of tax paid by him,
27 upon condition that he shall make affidavit and furnish proof
28 that the malt or brewed beverages were so sold.
29 [(c) In case any malt or brewed beverages upon which the tax
30 has been paid by an out-of-State manufacturer and subsequently
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1 sold by an importing distributor to commissaries, ship's stores
2 or voluntary unincorporated organizations of the armed forces
3 personnel operating under regulations promulgated by the
4 Secretary of Defense, such manufacturer shall be entitled to a
5 refund of the actual amount of tax paid by him upon condition
6 that he shall make affidavit and furnish proof that the malt or
7 brewed beverages were so sold.
8 (d)] (c) In case any malt or brewed beverages upon which the
9 tax has been paid by a manufacturer or importing distributor
10 shall be rendered unsalable by reason of damage or destruction,
11 such manufacturer or importing distributor shall be entitled to
12 a refund of the actual amount of tax paid by him, upon condition
13 that he shall make affidavit and furnish proof satisfactory to
14 the department that the malt beverages were so damaged or
15 destroyed.
16 [(e)] (d) In case any malt or brewed beverages upon which
17 the tax has been paid by a manufacturer or importing distributor
18 have been sold and delivered to a public service licensee who is
19 obligated to pay the tax thereon, such manufacturer or importing
20 distributor shall be entitled to a refund of the actual amount
21 of tax paid by him, upon condition that he shall make affidavit
22 and furnish proof satisfactory to the department of such facts.
23 [(f)] (e) In each of the above cases the department shall,
24 with the approval of the Board of Finance and Revenue, pay or
25 issue to the manufacturer or importing distributor credits of
26 sufficient value to cover the refund. Such credits may be used
27 by the manufacturer or importing distributor for the payment of
28 any taxes due by him to the Commonwealth. The procedure for
29 refund in any case shall be completed by the Department of
30 Revenue and the Board of Finance and Revenue within sixty days
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1 after the proper affidavits have been filed with the department.
2 Section 2. This act shall take effect in 60 days.
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