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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY SEIP, KESSLER, GOODMAN, MAHONEY, MURPHY, GERGELY, SANTONI, MUNDY, HORNAMAN, HOUGHTON, GIBBONS, GRUCELA AND K. SMITH, SEPTEMBER 17, 2010 |
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| REFERRED TO COMMITTEE ON FINANCE, SEPTEMBER 17, 2010 |
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| AN ACT |
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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," in sales and use tax, further providing for |
11 | definitions and for exclusions from tax; and providing for |
12 | interfund transfers. |
13 | The General Assembly of the Commonwealth of Pennsylvania |
14 | hereby enacts as follows: |
15 | Section 1. Section 201(cc) of the act of March 4, 1971 |
16 | (P.L.6, No.2), known as the Tax Reform Code of 1971, amended |
17 | December 13, 1991 (P.L.373, No.40), is amended and clauses (k) |
18 | and (o) are amended by adding subclauses to read: |
19 | Section 201. Definitions.--The following words, terms and |
20 | phrases when used in this Article II shall have the meaning |
21 | ascribed to them in this section, except where the context |
22 | clearly indicates a different meaning: |
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1 | * * * |
2 | (k) "Sale at retail." |
3 | * * * |
4 | (20) (i) The rendition for a consideration of any service, |
5 | other than (A) funeral parlors, crematories and death care |
6 | services, (B) health services, including, but not limited to, |
7 | physician or dental services, (C) professional and technical |
8 | services, including, but not limited to, legal services, |
9 | architectural services and specialized design services, (D) |
10 | tuition, or (E) electrical, plumbing, heating and air |
11 | conditioning service fees, when the primary objective of the |
12 | purchaser is the receipt of any benefit of the service |
13 | performed, as distinguished from the receipt of property. In |
14 | determining what is a service, the intended use or stated |
15 | objective of the contracting parties shall not necessarily be |
16 | controlling. |
17 | (ii) Any service performed in this Commonwealth shall be |
18 | subject to the tax imposed under this article unless |
19 | specifically exempted in this article. With respect to services, |
20 | other than telecommunications services, the services shall be |
21 | considered to be performed in this Commonwealth if: |
22 | (A) performed completely in this Commonwealth; |
23 | (B) performed partially in this Commonwealth and partially |
24 | outside this Commonwealth when the recipient or user of the |
25 | service is located in this Commonwealth; |
26 | (C) performed partially in this Commonwealth and partially |
27 | outside this Commonwealth if the recipient or user of the |
28 | service is not located in this Commonwealth, but only to the |
29 | extent of those services actually performed in this |
30 | Commonwealth; or |
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1 | (D) the place of performance cannot be determined if the |
2 | recipient or user of the service is located in this |
3 | Commonwealth. |
4 | (iii) With respect to services, other than |
5 | telecommunications services, the services performed partially in |
6 | this Commonwealth and partially outside this Commonwealth shall |
7 | be presumed to have been performed completely in this |
8 | Commonwealth unless the taxpayer can show the place of |
9 | performance by clear and convincing evidence. |
10 | (iv) With respect to interstate telecommunications services, |
11 | only those charges for interstate telecommunications which |
12 | originate or are terminated in this Commonwealth and which are |
13 | billed and charged to a service address in this Commonwealth |
14 | shall be subject to tax. |
15 | (v) With respect to services, other than telecommunications |
16 | services, that are performed in this Commonwealth for a |
17 | recipient or user of the services located in another state in |
18 | which the services, had they been performed in that state, would |
19 | not be subject to a sales or use tax under the laws of that |
20 | state, no tax may be imposed under this article. |
21 | (vi) The tax on the sale or use of services shall become due |
22 | at the time payment or other consideration is made for the |
23 | portion of services actually paid. |
24 | * * * |
25 | (o) "Use." |
26 | * * * |
27 | (19) (i) The obtaining by the purchaser of any service, not |
28 | otherwise set forth in this definition, other than (A) funeral |
29 | parlors, crematories and death care services, (B) health |
30 | services, including, but not limited to, physician or dental |
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1 | services, (C) professional and technical services, including, |
2 | but not limited to, legal services, architectural services and |
3 | specialized design services, (D) tuition, or (E) electrical, |
4 | plumbing, heating and air conditioning service fees, when the |
5 | primary objective of the purchaser is the receipt of any benefit |
6 | of the service performed, as distinguished from the receipt of |
7 | property. In determining what is a service, the intended use or |
8 | stated objective of the contracting parties shall not |
9 | necessarily be controlling. |
10 | (ii) Any service performed in this Commonwealth shall be |
11 | subject to the tax imposed under this article unless |
12 | specifically exempted in this article. With respect to services, |
13 | other than telecommunications services, such services shall be |
14 | considered to be performed in this Commonwealth if: |
15 | (A) performed completely in this Commonwealth; |
16 | (B) performed partially in this Commonwealth and partially |
17 | outside this Commonwealth when the recipient or user of the |
18 | service is located in this Commonwealth; |
19 | (C) performed partially in this Commonwealth and partially |
20 | outside this Commonwealth if the recipient or user of the |
21 | service is not located in this Commonwealth, but only to the |
22 | extent of those services actually performed in this |
23 | Commonwealth; or |
24 | (D) the place of performance cannot be determined if the |
25 | recipient or user of the service is located in this |
26 | Commonwealth. |
27 | (iii) With respect to services, other than telecommunication |
28 | services, such services performed partially in this Commonwealth |
29 | and partially outside this Commonwealth shall be presumed to |
30 | have been performed completely in this Commonwealth unless the |
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1 | taxpayer shows the place of performance by clear and convincing |
2 | evidence. |
3 | (iv) With respect to interstate telecommunications services, |
4 | only those charges for interstate telecommunications which |
5 | originate or are terminated in this Commonwealth and which are |
6 | billed and charged to a service address in this Commonwealth |
7 | shall be subject to tax. |
8 | (v) With respect to services, other than telecommunications |
9 | services, that are performed in this Commonwealth for a |
10 | recipient or user of the services located in another state in |
11 | which the services, had they been performed in that state, would |
12 | not be subject to a sales or use tax under the laws of that |
13 | state, no tax may be imposed under this article. |
14 | * * * |
15 | (cc) "Help supply services." Providing temporary or |
16 | continuing help where the help supplied is on the payroll of the |
17 | supplying person or entity, but is under the supervision of the |
18 | individual or business to which help is furnished. Such services |
19 | include, but are not limited to, service of a type provided by |
20 | labor and manpower pools, employe leasing services, office help |
21 | supply services, temporary help services, usher services, |
22 | modeling services or fashion show model supply services. Such |
23 | services shall not include providing farm labor services. The |
24 | term shall not include human health-related services, including |
25 | nursing[,] and home health care [and personal care. As used in |
26 | this clause, "personal care" shall include providing at least |
27 | one of the following types of assistance to persons with limited |
28 | ability for self-care: |
29 | (1) dressing, bathing or feeding; |
30 | (2) supervising self-administered medication; |
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1 | (3) transferring a person to or from a bed or wheelchair; or |
2 | (4) routine housekeeping chores when provided in conjunction |
3 | with and supplied by the same provider of the assistance listed |
4 | in subclause (1), (2) or (3)]. |
5 | Section 2. Section 204(34), (35), (50), (53) and (65) of the |
6 | act, amended or added August 31, 1971 (P.L.362, No.93), June 16, |
7 | 1994 (P.L.279, No.48), May 7, 1997 (P.L.85, No.7), April 23, |
8 | 1998 (P.L.239, No.45) and July 6, 2006 (P.L.319, No.67), are |
9 | amended and the section is amended by adding clauses to read: |
10 | Section 204. Exclusions from Tax.--The tax imposed by |
11 | section 202 shall not be imposed upon any of the following: |
12 | * * * |
13 | [(34) The sale at retail, or use of motion picture film |
14 | rented or licensed from a distributor for the purpose of |
15 | commercial exhibition. |
16 | (35) The sale at retail or use of mail order catalogs and |
17 | direct mail advertising literature or materials, including |
18 | electoral literature or materials, such as envelopes, address |
19 | labels and a one-time license to use a list of names and mailing |
20 | addresses for each delivery of direct mail advertising |
21 | literature or materials, including electoral literature or |
22 | materials, through the United States Postal Service.] |
23 | * * * |
24 | [(50) The sale at retail or use of subscriptions for |
25 | magazines. The term "magazine" refers to a periodical published |
26 | at regular intervals not exceeding three months and which are |
27 | circulated among the general public, containing matters of |
28 | general interest and reports of current events published for the |
29 | purpose of disseminating information of a public character or |
30 | devoted to literature, the sciences, art or some special |
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1 | industry. This exclusion shall also include any printed |
2 | advertising material circulated with the periodical or |
3 | publication regardless of where or by whom the printed |
4 | advertising material was produced.] |
5 | * * * |
6 | [(53) The sale at retail or use of candy or gum regardless |
7 | of the location from which the candy or gum is sold.] |
8 | * * * |
9 | [(65) The sale at retail or use of investment metal bullion |
10 | and investment coins. "Investment metal bullion" means any |
11 | elementary precious metal which has been put through a process |
12 | of smelting or refining, including, but not limited to, gold, |
13 | silver, platinum and palladium, and which is in such state or |
14 | condition that its value depends upon its content and not its |
15 | form. "Investment metal bullion" does not include precious metal |
16 | which has been assembled, fabricated, manufactured or processed |
17 | in one or more specific and customary industrial, professional, |
18 | aesthetic or artistic uses. "Investment coins" means numismatic |
19 | coins or other forms of money and legal tender manufactured of |
20 | gold, silver, platinum, palladium or other metal and of the |
21 | United States or any foreign nation with a fair market value |
22 | greater than any nominal value of such coins. "Investment coins" |
23 | does not include jewelry or works of art made of coins, nor does |
24 | it include commemorative medallions.] |
25 | * * * |
26 | (69) The sale at retail of medical goods or services by a |
27 | hospital, as defined in the act of December 20, 1985 (P.L.457, |
28 | No.112), known as the "Medical Practice Act of 1985." |
29 | (70) The sale at retail of medical or dental services, |
30 | including, but not limited to, charges for office visits. |
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1 | (71) The sale at retail or use of goods or services that are |
2 | part of a Medicare Part B transaction. |
3 | (72) The sale at retail of medical, dental and vision |
4 | insurance premiums. |
5 | (73) The sale at retail to or use of home health care, |
6 | nursing care and other ambulatory health care services. |
7 | (74) The sale at retail to or use of funeral parlors, |
8 | crematories and death care services. |
9 | (75) The sale at retail to or use of social services, |
10 | including, but not limited to, day care. |
11 | (76) The sale at retail of tuition. |
12 | (77) The sale at retail to or use of any of the following |
13 | professional services: |
14 | (i) Legal services. |
15 | (ii) Accounting, auditing and bookkeeping services. |
16 | (iii) Architectural and engineering services. |
17 | (78) The sale at retail to or use of electrical, plumbing, |
18 | heating and air conditioning service fees. |
19 | Section 3. The act is amended by adding a section to read: |
20 | Section 281.3. Interfund Transfers.--Within thirty days of |
21 | the close of the 2010-2011 fiscal year and each fiscal year |
22 | thereafter, the amount of one billion dollars ($1,000,000,000) |
23 | shall be transferred to the Property Tax Relief Fund. |
24 | Section 4. This act shall take effect in 60 days. |
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