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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY BROWNE, MAY 31, 2012 |
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| REFERRED TO FINANCE, MAY 31, 2012 |
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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 tax for education, further providing for |
11 | licenses; in payment of tax, further providing for discount; |
12 | in assessment and collection of tax, further providing for |
13 | assessment; in interest, additions, penalties and crimes, |
14 | providing for failure to timely remit tax collected; in |
15 | personal income tax, further providing for definitions and |
16 | for taxability of partners, providing for tax treatment |
17 | determined at partnership level and for tax imposed at |
18 | partnership level, further providing for income of a |
19 | Pennsylvania S corporation, for tax withheld and for |
20 | requirement of withholding tax, providing for requirement of |
21 | withholding tax for nonemployers, further providing for |
22 | information statement, providing for information statement |
23 | for nonemployer payors and for information statement for |
24 | nonemployer payees, further providing for time for filing |
25 | employers' returns, for payment of taxes withheld, for |
26 | employers liability for withheld taxes, for employer's |
27 | failure to withhold, for designation of third parties to |
28 | perform acts required of employers, for general rule, for |
29 | amount of withholding tax and for treatment of nonresident |
30 | partners, members or shareholders, providing for withholding |
31 | on income from oil and gas interests and for annual |
32 | withholding statement, further providing for return of |
33 | Pennsylvania S corporation, for requirements concerning |
34 | returns, notices, records and statements, for assessment, for |
35 | additions, penalties and fees and providing for failure to |
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1 | timely remit tax withheld; in corporate net income tax, |
2 | further providing for assessments; in realty transfer tax, |
3 | further providing for assessment and notice of tax and |
4 | review; in cigarette tax, further providing for disposition |
5 | of certain funds; in malt beverage tax, further providing for |
6 | assessment by department; in general provisions, providing |
7 | for administrative bank attachment for accounts of obligors |
8 | to the Commonwealth, for tax delinquent placard and for |
9 | additional citation authority; and providing for |
10 | applicability. |
11 | The General Assembly of the Commonwealth of Pennsylvania |
12 | hereby enacts as follows: |
13 | Section 1. Section 208(b.1) and (c) of the act of March 4, |
14 | 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971, |
15 | amended December 23, 2003 (P.L.250, No.46), are amended to read: |
16 | Section 208. Licenses.--* * * |
17 | (b.1) If an applicant for a license or any person holding a |
18 | license has not filed all required State tax reports and paid |
19 | any State taxes not subject to a timely perfected administrative |
20 | or judicial appeal or subject to a duly authorized deferred |
21 | payment plan, the department may refuse to issue, may suspend or |
22 | may revoke said license. The department shall notify the |
23 | applicant or licensee of any refusal, suspension or revocation. |
24 | Such notice shall contain a statement that the refusal, |
25 | suspension or revocation may be made public. Such notice shall |
26 | be made by first class mail. An applicant or licensee aggrieved |
27 | by the determination of the department may file an appeal |
28 | pursuant to the provisions for administrative appeals in this |
29 | article, except the appeal must be filed within fifteen days of |
30 | the date of notice. In the case of a suspension or revocation |
31 | which is appealed, the license shall remain valid pending a |
32 | final outcome of the appeals process. Notwithstanding sections |
33 | 274, 353(f), 408(b), 603, 702, 802, 904 and 1102 of the act or |
34 | any other provision of law to the contrary, if no appeal is |
35 | taken or if an appeal is taken and denied at the conclusion of |
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1 | the appeal process, the department may disclose, by publication |
2 | or otherwise, the identity of a person and the fact that the |
3 | person's license has been refused, suspended or revoked under |
4 | this subsection. Disclosure may include the basis for refusal, |
5 | suspension or revocation. |
6 | (c) A person that maintains a place of business in this |
7 | Commonwealth for the purpose of selling or leasing services or |
8 | tangible personal property, the sale or use of which is subject |
9 | to tax, without having [first been licensed by the department] a |
10 | valid license at the time of the sale or lease shall be guilty |
11 | of a summary offense and, upon conviction thereof, be sentenced |
12 | to pay a fine of not less than three hundred dollars ($300) nor |
13 | more than one thousand five hundred ($1,500) and, in default |
14 | thereof, to undergo imprisonment of not less than five days nor |
15 | more than thirty days. The penalties imposed by this subsection |
16 | shall be in addition to any other penalties imposed by this |
17 | article. For purposes of this subsection, the offering for sale |
18 | or lease of any service or tangible personal property, the sale |
19 | or use of which is subject to tax, during any calendar day shall |
20 | constitute a separate violation. The Secretary of Revenue may |
21 | designate employes of the department to enforce the provisions |
22 | of this subsection. The employes shall exhibit proof of and be |
23 | within the scope of the designation when instituting proceedings |
24 | as provided by the Pennsylvania Rules of Criminal Procedure. |
25 | * * * |
26 | Section 1.1. Section 227 of the act is amended to read: |
27 | Section 227. Discount.--(a) If a return is filed by a |
28 | licensee and the tax shown to be due thereon less any discount |
29 | is paid all within the time prescribed, the licensee shall be |
30 | entitled to credit and apply against the tax payable by [him] |
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1 | the licensee a discount of one per cent of the amount of the tax |
2 | collected by [him] the licensee on and after the effective date |
3 | of this article, as compensation for the expense of collecting |
4 | and remitting the [same] tax due by the licensee and as a |
5 | consideration of the prompt payment thereof. |
6 | (b) The discount under subsection (a) shall be limited to |
7 | the following: |
8 | (1) Two hundred fifty dollars ($250) per return. |
9 | (2) Only State and local sales tax discounts. |
10 | Section 1.2. Section 230 of the act, amended July 25, 2007 |
11 | (P.L.373, No.55), is amended to read: |
12 | Section 230. Assessment.--(a) The department is authorized |
13 | and required to make the inquiries, determinations and |
14 | assessments of the tax (including interest, additions and |
15 | penalties) imposed by this article. A notice of assessment and |
16 | demand for payment shall be mailed to the taxpayer. The notice |
17 | shall set forth the basis of the assessment. |
18 | [(b) The notice required by subsection (a) shall be mailed |
19 | by certified mail if the assessment is for $300 or more.] |
20 | Section 2. The act is amended by adding a section to read: |
21 | Section 268.1. Failure to Timely Remit Tax Collected.--(a) |
22 | Penalties. If a person wilfully fails to timely remit tax |
23 | collected under this article and: |
24 | (1) The amount of the tax is one thousand dollars ($1,000) |
25 | or less, the person commits a misdemeanor of the second degree |
26 | and, upon conviction, shall be sentenced to pay a fine of one |
27 | thousand dollars ($1,000) or to imprisonment for not more than |
28 | two years, or both. |
29 | (2) Except as set forth in subclause (3), the amount of the |
30 | tax exceeds one thousand dollars ($1,000), the person commits a |
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1 | misdemeanor of the first degree and, upon conviction, shall be |
2 | sentenced to pay a fine of not more than five thousand dollars |
3 | ($5,000) or to imprisonment for not more than five years, or |
4 | both. |
5 | (3) The amount of the tax exceeds two thousand dollars |
6 | ($2,000), the person commits a felony of the third degree and, |
7 | upon conviction, shall be sentenced to pay a fine of not more |
8 | than twenty-five thousand dollars ($25,000) or to imprisonment |
9 | for not more than seven years, or both. |
10 | (b) Requirement. The penalties imposed by this section shall |
11 | be in addition to other penalties imposed by a provision of this |
12 | article. |
13 | Section 3. Section 301(n.1) of the act, amended July 6, 2006 |
14 | (P.L.319, No.67), is amended and the section is amended by |
15 | adding subsections to read: |
16 | Section 301. Definitions.--Any reference in this article to |
17 | the Internal Revenue Code of 1986 shall mean the Internal |
18 | Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 1 et seq.), |
19 | as amended to January 1, 1997, unless the reference contains the |
20 | phrase "as amended" and refers to no other date, in which case |
21 | the reference shall be to the Internal Revenue Code of 1986 as |
22 | it exists as of the time of application of this article. The |
23 | following words, terms and phrases when used in this article |
24 | shall have the meaning ascribed to them in this section except |
25 | where the context clearly indicates a different meaning: |
26 | * * * |
27 | (d.2) "Corporate item" means any item, including income, |
28 | gain or loss, determined at the Pennsylvania S corporation |
29 | level, which is required to be taken into account for a |
30 | Pennsylvania S corporation's taxable year. |
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1 | * * * |
2 | (l.3) "Nonemployer payee" means an individual who receives |
3 | payments under section 316.1(a)(1). |
4 | (l.4) "Nonemployer payor" means a person subject to |
5 | nonemployer withholding under section 316.1. |
6 | * * * |
7 | (n.1) "Partnership item" means any item, including income, |
8 | gain or loss, determined at the partnership level, which is |
9 | required to be taken into account for a partnership's taxable |
10 | year. |
11 | [(n.1)] (n.2) "Pennsylvania S corporation" means any small |
12 | corporation as defined in section 301(s.2) which does not have a |
13 | valid election under section 307 in effect. A qualified |
14 | Subchapter S subsidiary owned by a Pennsylvania S corporation |
15 | shall be treated as a Pennsylvania S corporation without regard |
16 | to whether an election under section 307 has been made with |
17 | respect to the subsidiary. |
18 | * * * |
19 | Section 4. Section 306 of the act, amended June 22, 2001 |
20 | (P.L.353, No.23), is amended to read: |
21 | Section 306. Taxability of Partners.--[A] Except as provided |
22 | in section 306.2, a partnership as an entity shall not be |
23 | subject to the tax imposed by this article, but the income or |
24 | gain of a member of a partnership in respect of said partnership |
25 | shall be subject to the tax and the tax shall be imposed on his |
26 | share, whether or not distributed, of the income or gain |
27 | received by the partnership for its taxable year ending within |
28 | or with the member's taxable year. |
29 | Section 5. The act is amended by adding sections to read: |
30 | Section 306.1. Tax Treatment Determined at Partnership |
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1 | Level.-–The tax treatment of a partnership item and the |
2 | applicability of a penalty, addition of tax or additional amount |
3 | that relates to an adjustment to a partnership item must be |
4 | determined at the partnership level. |
5 | Section 306.2. Tax Imposed at Partnership Level.--A |
6 | partnership underreporting income by more than one hundred |
7 | thousand dollars ($100,000) shall be jointly liable with each |
8 | partner for any part of a deficiency resulting from the |
9 | treatment of a partnership item by any partner on that partner's |
10 | return in a manner that is consistent with the treatment of that |
11 | partnership item on the partnership return. If the tax is paid |
12 | by the partner, it may not be collected from the partnership. |
13 | Section 6. Section 307.8(a) of the act, amended May 7, 1997 |
14 | (P.L.85, No.7), is amended and the section is amended by adding |
15 | a subsection to read: |
16 | Section 307.8. Income of a Pennsylvania S Corporation.--(a) |
17 | A Pennsylvania S corporation shall not be subject to the tax |
18 | imposed by this article, except as provided in subsection (f), |
19 | but the shareholders of the Pennsylvania S corporation shall be |
20 | subject to the tax imposed under this article as provided in |
21 | this article. |
22 | * * * |
23 | (f) A Pennsylvania S corporation underreporting income by |
24 | more than one hundred thousand dollars ($100,000) shall be |
25 | jointly liable with each shareholder for any part of a |
26 | deficiency resulting from the treatment of a corporate item by |
27 | any shareholder on the shareholder's return in a manner that is |
28 | consistent with the treatment of that corporate item on the |
29 | return of the Pennsylvania S corporation. If the tax is paid by |
30 | the shareholder, it may not be collected from the corporation. |
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1 | Section 7. Sections 312 and 316 of the act, added August 31, |
2 | 1971 (P.L.362, No.93), are amended to read: |
3 | Section 312. Tax Withheld.--(a) The amount withheld under |
4 | section 316 shall be allowed to the recipient of the |
5 | compensation as a credit against the tax imposed on him by this |
6 | article. |
7 | (b) The amount withheld under section 316.1 shall be allowed |
8 | to the recipient of the Pennsylvania sourced income as a credit |
9 | against the tax imposed on the recipient by this article. |
10 | (c) The amount withheld under section 324.4 shall be allowed |
11 | to the lessor as a credit against the tax imposed on the lessor |
12 | by this article. For the purposes of this subsection, the term |
13 | "lessor" shall have the same meaning as given to it in section |
14 | 324.4(d). |
15 | Section 316. Requirement of Withholding Tax for Employers.-- |
16 | Every employer maintaining an office or transacting business |
17 | within this Commonwealth and making payment of compensation (i) |
18 | to a resident individual, or (ii) to a nonresident individual |
19 | taxpayer performing services on behalf of such employer within |
20 | this Commonwealth, shall deduct and withhold from such |
21 | compensation for each payroll period a tax computed in such |
22 | manner as to result, so far as practicable, in withholding from |
23 | the employe's compensation during each calendar year an amount |
24 | substantially equivalent to the tax reasonably estimated to be |
25 | due for such year with respect to such compensation. The method |
26 | of determining the amount to be withheld shall be prescribed by |
27 | regulations of the department. |
28 | Section 8. The act is amended by adding a section to read: |
29 | Section 316.1. Requirement of Withholding Tax for |
30 | Nonemployers.--(a) This section applies as follows: |
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1 | (1) Except as set forth in clause (2), to a person that |
2 | meets all of the following subclauses: |
3 | (i) Makes payments of income from sources within this |
4 | Commonwealth under section 303(a)(1) or (2) to: |
5 | (A) a nonresident individual; or |
6 | (B) an entity: |
7 | (I) which is disregarded under section 307.21; and |
8 | (II) the single owner of which is a nonresident individual. |
9 | (ii) Is required by section 335(g) to file a copy of form |
10 | 1099-MISC with the department with respect to payments under |
11 | subclause (i). |
12 | (2) This section does not apply to payments made by any of |
13 | the following: |
14 | (i) The United States of America. This subclause includes a |
15 | Federal agency, authority and instrumentality. |
16 | (ii) The Commonwealth. This subclause includes a |
17 | Commonwealth agency, authority and instrumentality. |
18 | (iii) A political subdivision. This subclause includes a |
19 | municipal authority and instrumentality. |
20 | (b) A person subject to subsection (a), to the extent not |
21 | already required by section 316 to withhold on payments under |
22 | subsection (a)(1)(i), shall deduct and withhold from those |
23 | payments an amount obtained by multiplying: |
24 | (1) the net amount of the payments; by |
25 | (2) the tax rate specified in section 302(b). |
26 | (c) The department may promulgate regulations to implement |
27 | and clarify the withholding requirement set forth in subsection |
28 | (b). |
29 | (d) As used in this section, "payments" does not include a |
30 | partner's or shareholder's distributive share of income from a |
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1 | partnership or Pennsylvania S corporation. |
2 | Section 9. Section 317 of the act, amended December 20, 1985 |
3 | (P.L.489, No.115), is amended to read: |
4 | Section 317. Information Statement.--Every employer required |
5 | to deduct and withhold tax under [this article] section 316 |
6 | shall furnish to each such employe to whom the employer has paid |
7 | compensation during the calendar year a written statement in |
8 | such manner and in such form as may be prescribed by the |
9 | department showing the amount of compensation paid by the |
10 | employer to the employe, the amount deducted and withheld as |
11 | tax[, pursuant to this article,] and such other information as |
12 | the department shall prescribe. Each statement required by this |
13 | section for a calendar year shall be furnished to the employe on |
14 | or before January 31 of the year succeeding such calendar year. |
15 | If the employe's employment is terminated before the close of |
16 | such calendar year, the employer, at his option, shall furnish |
17 | the statement to the employe at any time after the termination |
18 | but no later than January 31 of the year succeeding such |
19 | calendar year. However, if an employe whose employment is |
20 | terminated before the close of such calendar year requests the |
21 | employer in writing to furnish him the statement at an earlier |
22 | time, and, if there is no reasonable expectation on the part of |
23 | both employer and employe of further employment during the |
24 | calendar year, then the employer shall furnish the statement to |
25 | the employe on or before the later of the 30th day after the day |
26 | of the request or the 30th day after the day on which the last |
27 | payment of wages is made. |
28 | Section 10. The act is amended by adding sections to read: |
29 | Section 317.1. Information Statement for Nonemployer |
30 | Payors.--A nonemployer payor shall furnish to each nonemployer |
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1 | payee during a calendar year a copy of form 1099-MISC required |
2 | by section 335(g). The copy of form 1099-MISC required by this |
3 | section for a calendar year shall be forwarded to the |
4 | nonemployer payee by March 1 of the next year. |
5 | Section 317.2. Information Statement for Nonemployer |
6 | Payees.--A nonemployer payee receiving a copy of form 1099-MISC |
7 | from a nonemployer payor under section 317.1 shall file a |
8 | duplicate of the form with the nonemployer payee's tax return |
9 | under section 330. |
10 | Section 11. Section 318 of the act, added August 31, 1971 |
11 | (P.L.362, No.93), is amended to read: |
12 | Section 318. Time for Filing Employers' and Nonemployer |
13 | Payors' Returns.--(a) Every employer required to deduct and |
14 | withhold tax under [this article] section 316 shall file a |
15 | quarterly withholding return on or before the last day of April, |
16 | July, October and January for the three months ending the last |
17 | day of March, June, September and December. Such quarterly |
18 | returns shall be filed with the department at its main office or |
19 | at any branch office which it may designate for filing returns. |
20 | (b) A nonemployer payor shall file a quarterly withholding |
21 | return by the last day of April, July, October and January for |
22 | the three months ending the last day of March, June, September |
23 | and December. The quarterly return shall be filed with the |
24 | department in the manner promulgated by regulation. |
25 | Section 12. Section 319 of the act, amended October 9, 2009 |
26 | (P.L.451, No.48), is amended to read: |
27 | Section 319. Payment of Taxes Withheld.--Every employer |
28 | withholding tax under [this article] section 316 and every |
29 | nonemployer payor shall pay over to the department or to a |
30 | depository designated by it the tax required to be deducted and |
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1 | withheld under this article. |
2 | (1) Where the aggregate amount required to be deducted and |
3 | withheld [by any employer] for a calendar year can reasonably be |
4 | expected to be less than twelve hundred dollars ($1,200), such |
5 | employer or nonemployer payor shall file a return and pay the |
6 | tax on or before the last day for filing a quarterly return |
7 | under section 318. |
8 | (2) Where the aggregated amount required to be deducted and |
9 | withheld [by any employer] for a calendar year can reasonably be |
10 | expected to be twelve hundred dollars ($1,200) or more but less |
11 | than four thousand dollars ($4,000), such employer or |
12 | nonemployer payor shall pay the tax monthly, on or before the |
13 | fifteenth day of the month succeeding the months of January to |
14 | November, inclusive, and on or before the last day of January |
15 | following the month of December. |
16 | (3) Where the aggregated amount required to be deducted and |
17 | withheld [by any employer] for a calendar year can reasonably be |
18 | expected to be four thousand dollars ($4,000) or more but less |
19 | than twenty thousand dollars ($20,000), such employer or |
20 | nonemployer payor shall pay the tax semi-monthly, within three |
21 | banking days after the close of the semi-monthly period. |
22 | (4) Where the aggregated amount required to be deducted and |
23 | withheld [by any employer] for a calendar year can reasonably be |
24 | expected to be twenty thousand dollars ($20,000) or more, such |
25 | employer or nonemployer payor shall pay the tax on the Wednesday |
26 | after payday if the payday falls on a Wednesday, Thursday or |
27 | Friday and on the Friday after payday if the payday falls on a |
28 | Saturday, Sunday, Monday or Tuesday. |
29 | Notwithstanding anything in this section to the contrary, |
30 | whenever any employer or nonemployer payor fails to deduct or |
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1 | truthfully account for or pay over the tax withheld or file |
2 | returns as prescribed by this article, the department may serve |
3 | a notice on such [employer] person requiring him to withhold |
4 | taxes which are required to be deducted under this article and |
5 | deposit such taxes in a bank approved by the department in a |
6 | separate account in trust for and payable to the department, and |
7 | to keep the amount of such tax in such account until payment |
8 | over to the department. Such notice shall remain in effect until |
9 | a notice of cancellation is served on the [employer] person by |
10 | the department. |
11 | Section 13. Sections 320, 321 and 322 of the act, added |
12 | August 31, 1971 (P.L.362, No.93), are amended to read: |
13 | Section 320. [Employer's] Liability for Withheld Taxes.-- |
14 | Every employer required to deduct and withhold tax under [this |
15 | article] section 316 and every nonemployer payor is hereby made |
16 | liable for [such] tax deducted and withheld. For purposes of |
17 | assessment and collection, any amount required to be withheld |
18 | and paid over to the department and any additions to tax |
19 | penalties and interest with respect thereto, shall be considered |
20 | the tax of the employer or nonemployer payor. All taxes deducted |
21 | and withheld from employes pursuant to [this article] section |
22 | 316 or nonemployer payees pursuant to section 316.1 or under |
23 | color of [this article] section 316 or 316.1 shall constitute a |
24 | trust fund for the Commonwealth and shall be enforceable against |
25 | such employer or nonemployer payor, his representative or any |
26 | other person receiving any part of such fund. |
27 | Section 321. [Employer's] Failure to Withhold.--If an |
28 | employer or nonemployer payor fails to deduct and withhold tax |
29 | as prescribed herein and thereafter the tax against which such |
30 | tax may be credited is paid, the tax which was required to be |
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1 | deducted and withheld shall not be collected from the employer |
2 | or nonemployer payor, but the employer or nonemployer payor |
3 | shall not be relieved of the liability for any penalty, |
4 | interest, or additions to the tax imposed with respect to such |
5 | failure to deduct and withhold. |
6 | Section 322. Designation of Third Parties to Perform Acts |
7 | Required of Employers or Nonemployer Payors.--(a) In case a |
8 | fiduciary, agent or other person has the control, receipt, |
9 | custody or disposal of, or pays the compensation of an employe |
10 | or a group of employes, employed by one or more employers, the |
11 | department is authorized to designate such fiduciary, agent, or |
12 | other person to perform such acts as are required of employers |
13 | under this article as the department may by regulation |
14 | prescribe. Except as may be otherwise prescribed by the |
15 | department, all provisions of this article which are applicable |
16 | to an employer shall be applicable to a fiduciary, agent or |
17 | other person. |
18 | (b) In case a fiduciary, agent or other person has the |
19 | control, receipt, custody or disposal of, or pays income to a |
20 | nonemployer payee or a group of nonemployer payees on behalf of |
21 | a nonemployer payor, the department is authorized to designate |
22 | such fiduciary, agent or other person to perform such acts as |
23 | are required of nonemployer payors under this article as the |
24 | department may promulgate by regulation. Except as may be |
25 | otherwise prescribed by the department, all provisions of this |
26 | article which are applicable to a nonemployer payor shall be |
27 | applicable to a fiduciary, agent or other person. |
28 | Section 14. Section 324 of the act, amended June 22, 2001 |
29 | (P.L.353, No.23), is amended to read: |
30 | Section 324. General Rule.--(a) When a partnership, estate, |
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1 | trust or Pennsylvania S corporation receives income from sources |
2 | within this Commonwealth for any taxable year and any portion of |
3 | the income is allocable to a nonresident partner, beneficiary, |
4 | member or shareholder thereof, the partnership, estate, trust or |
5 | Pennsylvania S corporation shall pay a withholding tax under |
6 | this section at the time and in the manner prescribed by the |
7 | department; however, notwithstanding any other provision of this |
8 | article, all such withholding tax shall be paid over on or |
9 | before the fifteenth day of the fourth month following the end |
10 | of the taxable year. |
11 | (b) This section shall not apply to any publicly traded |
12 | partnership as defined under section 7704 of the Internal |
13 | Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 7704) with |
14 | equity securities registered with the Securities and Exchange |
15 | Commission under section 12 of the Securities Exchange Act of |
16 | 1934 (48 Stat. 881, 15 U.S.C. § 78a). |
17 | Section 15. Section 324.1 of the act, added August 4, 1991 |
18 | (P.L.97, No.22), is amended to read: |
19 | Section 324.1. Amount of Withholding Tax.--(a) The amount |
20 | of tax withheld from nonresidents and the amount of the |
21 | withholding tax payable under section 324 shall be equal to the |
22 | income from sources within this Commonwealth of the partnership, |
23 | association or Pennsylvania S corporation which is allocable to |
24 | nonresident partners, members or shareholders multiplied by the |
25 | tax rate specified in section 302(b). |
26 | (b) There shall not be taken into account any item of |
27 | income, gain, loss or deduction to the extent allocable to any |
28 | partner, member or shareholder who is not a nonresident. |
29 | (c) There shall not be taken into account any allocable |
30 | share of income of a nonresident partner, member or shareholder |
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1 | from sources within this Commonwealth to the extent: |
2 | (1) the amount was subject to withholding under section |
3 | 324.4; and |
4 | (2) withholding actually occurred under section 324.4 by the |
5 | time withholding is required to be made by the partnership, |
6 | association or Pennsylvania S corporation under section 324. |
7 | Section 16. Section 324.2 of the act, amended May 7, 1997 |
8 | (P.L.85, No.7), is amended to read: |
9 | Section 324.2. Treatment of [Nonresident] Partners, Members |
10 | or Shareholders.--(a) Each nonresident partner, member, |
11 | shareholder or holder of a beneficial interest shall be allowed |
12 | a credit for such partner's, member's, shareholder's or holder |
13 | of a beneficial interest's share of the withholding tax paid by |
14 | the partnership, association or Pennsylvania S corporation. |
15 | [Such credit shall be allowed for the partner's, member's, |
16 | shareholder's or holder of a beneficial interest's taxable year |
17 | in which, or with which, the partnership, association or |
18 | Pennsylvania S corporation taxable year (for which such tax was |
19 | paid) ends.] |
20 | (b) Each resident and nonresident partner, member, |
21 | shareholder or holder of a beneficial interest shall be allowed |
22 | a credit for the partner's, member's, shareholder's or holder of |
23 | a beneficial interest's share of the withholding tax paid by the |
24 | lessee under section 324.4. |
25 | (c) The credits under this section shall be allowed for the |
26 | partner's, member's, shareholder's or holder of a beneficial |
27 | interest's taxable year in which, or with which, the |
28 | partnership, association or Pennsylvania S corporation taxable |
29 | year for which the tax was paid ends. |
30 | Section 17. The act is amended by adding sections to read: |
|
1 | Section 324.4. Withholding on Income from Oil and Gas |
2 | Interests.--(a) Every lessee who makes payments to a lessor |
3 | under a lease for oil and gas interests located in this |
4 | Commonwealth for any taxable year shall pay a withholding tax in |
5 | the manner determined by the department. |
6 | (b) Every lessee under subsection (a) shall withhold from |
7 | each payment made to a lessor an amount equal to the net amount |
8 | payable to the lessor multiplied by the tax rate specified under |
9 | section 302(b). |
10 | (c) This section shall not apply to: |
11 | (1) Payments made by a lessee to a lessor if the lessor is: |
12 | (i) The United States or an agency of the Federal |
13 | Government. |
14 | (ii) The Commonwealth or a political subdivision of the |
15 | Commonwealth. |
16 | (iii) A publicly traded partnership as defined under section |
17 | 7704 of the Internal Revenue Code of 1986 (Public Law 99-514, 26 |
18 | U.S.C. § 7704) with equity securities registered with the |
19 | Securities and Exchange Commission under section 12 of the |
20 | Securities Exchange Act of 1934 (48 Stat. 881, 15 U.S.C. § 78a |
21 | et seq.). |
22 | (2) Any lessee that has twenty thousand dollars ($20,000) or |
23 | less in Pennsylvania taxable income in any taxable year from |
24 | Pennsylvania-sourced oil and gas interests. |
25 | (d) For purposes of this section, the term "lessor" shall |
26 | include an individual, estate, trust, partnership, association |
27 | or Pennsylvania S corporation. |
28 | Section 324.5. Annual Withholding Statement.--(a) Every |
29 | lessee shall furnish to each lessor an annual statement in the |
30 | manner determined by the department showing the total payments |
|
1 | made by the lessee to the lessor during the preceding taxable |
2 | year and the amount of the tax deducted and withheld from the |
3 | payments under section 324.4. |
4 | (b) Every lessee shall file with the department an annual |
5 | statement in the manner determined by the department showing the |
6 | total payments made to each lessor subject to withholding during |
7 | the preceding taxable year or any portion of the preceding |
8 | taxable year and the total amount of tax deducted and withheld |
9 | under section 324.4. |
10 | (c) Every lessor shall file a duplicate of the annual |
11 | statement furnished by the lessee under this section with the |
12 | lessor's State income tax return. |
13 | Section 18. Section 330.1 of the act, amended or added |
14 | December 23, 1983 (P.L.370, No.90) and July 13, 1987 (P.L.325, |
15 | No.59), is amended to read: |
16 | Section 330.1. Return of Pennsylvania S Corporation.--(a) |
17 | Every Pennsylvania S corporation shall make a return for each |
18 | taxable year, stating specifically all items of gross income and |
19 | deductions, the names and addresses of all persons owning stock |
20 | in the corporation at any time during the taxable year, the |
21 | number of shares of stock owned by each shareholder at all times |
22 | during the taxable year, the amount of money and other property |
23 | distributed by the corporation during the taxable year to each |
24 | shareholder, the date of each distribution, each shareholder's |
25 | pro rata share of each item of the corporation for the taxable |
26 | year and such other information as the department may require. |
27 | (b) The return shall be filed on or before thirty days after |
28 | the date when the corporation's Federal income tax return is |
29 | due. |
30 | (c) Every Pennsylvania S corporation shall also submit to |
|
1 | the department a true copy of the income tax return filed with |
2 | the Federal Government at the time the return required under |
3 | subsection (a) is filed. |
4 | (d) Each Pennsylvania S corporation required to file a |
5 | return under subsection (a) for any taxable year shall, on or |
6 | before the day on which the return for the taxable year was |
7 | filed, furnish to each person who is a shareholder at any time |
8 | during the taxable year a copy of the Resident Schedule of |
9 | Shareholder/Partner/Beneficiary Pass Through Income, Loss and |
10 | Credits (Schedule RK-1) or the Nonresident Schedule of |
11 | Shareholder/Partner/Beneficiary Pass Through Income, Loss and |
12 | Credits (Schedule NRK-1) form showing their share of income and |
13 | any other information as may be required by the department. |
14 | Section 19. Section 335 of the act, amended or added August |
15 | 31, 1971 (P.L.362, No.93) and December 23, 2003 (P.L.250, |
16 | No.46), is amended to read: |
17 | Section 335. Requirements Concerning Returns, Notices, |
18 | Records and Statements.--(a) The department may prescribe by |
19 | regulation for the keeping of records, the content and form of |
20 | returns, declarations, statements and other documents and the |
21 | filing of copies of Federal income tax returns and |
22 | determinations. The department may require any person, by |
23 | regulation or notice served upon such person, to make such |
24 | returns, render such statements, or keep such records, as the |
25 | department may deem sufficient to show whether or not such |
26 | person is liable for tax under this article. |
27 | (b) (1) When required by regulations prescribed by the |
28 | department: |
29 | (i) Any person required under the authority of this article |
30 | to make a return, declaration, statement, or other document |
|
1 | shall include in such return, declaration, statement or other |
2 | document such identifying number as may be prescribed for |
3 | securing proper identification of such person. |
4 | (ii) Any person with respect to whom a return, declaration, |
5 | statement, or other document is required under the authority of |
6 | this article to make a return, declaration, statement, or other |
7 | document with respect to another person, shall request from such |
8 | other person, and shall include in any such return, declaration, |
9 | statement, or other document, such identifying number as may be |
10 | prescribed for securing proper identification of such other |
11 | person. |
12 | (2) For purposes of this section, the department is |
13 | authorized to require such information as may be necessary to |
14 | assign an identifying number to any person. |
15 | (c) (1) Every partnership having a resident partner or |
16 | fiduciary of an estate or trust having a resident partner or |
17 | beneficiary or having any income derived from sources within |
18 | this Commonwealth shall make a return for the taxable year |
19 | setting forth all items of income, loss and deduction, and such |
20 | other pertinent information as the department may by regulations |
21 | prescribe. Such return shall be filed on or before the fifteenth |
22 | day of the fourth month following the close of each taxable |
23 | year. For purposes of this subsection, "taxable year" means year |
24 | or period which would be a taxable year of the partnership if it |
25 | were subject to tax under this article. |
26 | (2) Every partnership or fiduciary required to file a return |
27 | under paragraph (1) shall also file with the department a true |
28 | copy of the income tax return filed with the Federal Government |
29 | at the time the return required under paragraph (1) is filed. |
30 | (3) Every partnership or fiduciary required to file a return |
|
1 | under paragraph (1) for any taxable year shall, on or before the |
2 | day the return is filed, furnish to each partner or nominee for |
3 | another person or to each beneficiary to whom the income or |
4 | gains of the estate or trust is taxable, whichever is |
5 | applicable, a copy of the Resident Schedule of |
6 | Shareholder/Partner/Beneficiary Pass Through Income, Loss and |
7 | Credits (Schedule RK-1) or the Nonresident Schedule of |
8 | Shareholder/Partner/Beneficiary Pass Through Income, Loss and |
9 | Credits (Schedule NRK-1) form showing their share of income and |
10 | any information as may be required by the department. |
11 | (4) Failure to file a timely return as required under |
12 | paragraph (2) and failure to furnish a copy of the returns |
13 | required under paragraph (3) shall result in a penalty of fifty |
14 | dollars ($50) for each individual return or individual copy |
15 | required. |
16 | (d) The department may prescribe regulations requiring |
17 | returns of information to be made and filed on or before |
18 | February 28 of each year as to the payment or crediting in any |
19 | calendar year of amounts of ten dollars ($10) or more to any |
20 | taxpayer. Such returns may be required of any person, including |
21 | lessees or mortgagors of real or personal property, fiduciaries, |
22 | employers and all officers and employes of this Commonwealth, or |
23 | of any municipal corporation or political subdivision of this |
24 | Commonwealth having the control, receipt, custody, disposal or |
25 | payment of interest, rents, salaries, wages, premiums, |
26 | annuities, compensations, remunerations, emoluments or other |
27 | fixed or determinable gains, profits or income, except interest |
28 | coupons payable to bearer. A duplicate of the statement as to |
29 | tax withheld on compensation required to be furnished by an |
30 | employer to an employe, shall constitute the return of |
|
1 | information required to be made under this section with respect |
2 | to such compensation. |
3 | (e) Any person who is required to make a form W-2G return to |
4 | the Secretary of the Treasury of the United States in regard to |
5 | taxable gambling or lottery winnings from sources within this |
6 | Commonwealth shall file a copy of the form with the department |
7 | by March 1 of each year or, if filed electronically, by March 31 |
8 | of each year. |
9 | (f) (1) Every partnership, estate, trust or Pennsylvania S |
10 | corporation shall maintain an accurate list of partners, |
11 | members, beneficiaries or shareholders. The list shall include |
12 | current address and tax identification number and shall be |
13 | updated to include new and withdrawing partners, members, |
14 | beneficiaries or shareholders, including date of withdrawal and |
15 | admittance. |
16 | (2) If the partnership, estate, trust or Pennsylvania S |
17 | corporation does not maintain an accurate list as required under |
18 | paragraph (1), the tax, penalty and interest with respect to the |
19 | partner, member, beneficiary or shareholder shall be considered |
20 | the tax, penalty and interest of the partnership, estate, trust |
21 | or Pennsylvania S corporation and the general partner, tax |
22 | matters partner, corporate officer or trustee. |
23 | (g) (1) Any person who: |
24 | (i) makes payments of income from sources within this |
25 | Commonwealth that fall within any of the eight classes of income |
26 | enumerated under section 303(a)(1), (2), (3), (4), (5), (6), (7) |
27 | and (8); |
28 | (ii) makes payments under subparagraph (i) to an individual, |
29 | an entity treated as a partnership for tax purposes or a single |
30 | member limited liability company; and |
|
1 | (iii) is required to make a form 1099-MISC return to the |
2 | Secretary of the Treasury of the United States with respect to |
3 | the payments, shall file a copy of form 1099-MISC with the |
4 | department and send a copy of form 1099-MISC to the payee by |
5 | March 1 of each year or, if filed electronically, by March 31 of |
6 | each year. If form 1099-MISC filed by a payor with the Secretary |
7 | of the Treasury of the United States is not completed in a |
8 | manner that State income and State tax withheld information is |
9 | reflected on the form, the payor shall update the copies of form |
10 | 1099-MISC required to be provided under this section to reflect |
11 | the information prior to filing it with the department and |
12 | sending it to the payee. |
13 | (2) If the payor is required to perform electronic filing |
14 | for Pennsylvania employer withholding purposes, the form 1099- |
15 | MISC shall be filed electronically with the department. |
16 | Section 19.1. Section 338 of the act, amended July 25, 2007 |
17 | (P.L.373, No.55), is amended to read: |
18 | Section 338. Assessment.--(a) The department is authorized |
19 | and required to make the inquiries, determinations and |
20 | assessments of all taxes imposed by this article. |
21 | (b) If the mode or time for the assessment of any tax is not |
22 | otherwise provided for, the department may establish the same by |
23 | regulations. |
24 | (c) In the event that any taxpayer fails to file a return |
25 | required by this article, the department may make an estimated |
26 | assessment (based on information available) of the proper amount |
27 | of tax owing by the taxpayer. A notice of assessment in the |
28 | estimated amount shall be sent to the taxpayer. The tax shall be |
29 | paid within ninety days after a notice of such estimated |
30 | assessment has been mailed to the taxpayer, unless within such |
|
1 | period the taxpayer has filed a petition for reassessment in the |
2 | manner prescribed by Article XXVII. |
3 | (d) A notice of assessment issued by the department pursuant |
4 | to this article shall be mailed to the taxpayer. The notice |
5 | shall set forth the basis of the assessment. |
6 | [(e) The notice required by subsection (d) shall be mailed |
7 | by certified mail if the assessment is for $300 or more.] |
8 | Section 20. Section 352(j) of the act, added May 7, 1997 |
9 | (P.L.85, No.7), is amended and subsection (f) is amended by |
10 | adding paragraphs to read: |
11 | Section 352. Additions, Penalties and Fees.--* * * |
12 | (f) * * * |
13 | (4) Any person required to file an annual statement with the |
14 | department under the provisions of section 324.5 who wilfully |
15 | furnishes a false or fraudulent statement or who wilfully fails |
16 | to file the statement in the manner, at the time and showing the |
17 | information required under section 324.5 and the regulations |
18 | prescribed thereunder shall, for each such failure, be subject |
19 | to a penalty of fifty dollars ($50). |
20 | (5) Any person required under the provisions of section |
21 | 324.5 to furnish an annual statement to a lessor who wilfully |
22 | furnishes a false or fraudulent statement or who wilfully fails |
23 | to furnish a statement in the manner, at the time and showing |
24 | the information required by section 324.5 and the regulations |
25 | prescribed thereunder shall, for each such failure, be subject |
26 | to a penalty of fifty dollars ($50). |
27 | (6) Any person required to file a copy of form 1099-MISC |
28 | with the department under the provisions of section 317.2 or |
29 | 335(g) who wilfully furnishes a false or fraudulent form or who |
30 | wilfully fails to file the form in the manner, at the time and |
|
1 | showing the information required under section 335(g) and the |
2 | regulations prescribed thereunder shall, for each such failure, |
3 | be subject to a penalty of fifty dollars ($50). |
4 | (7) Any person required under the provisions of section |
5 | 317.1 or 335(g) to furnish a copy of form 1099-MISC to a payee |
6 | who wilfully furnishes a false or fraudulent form or who |
7 | wilfully fails to furnish a form in the manner, at the time and |
8 | showing the information required by section 317.1 or 335(g) and |
9 | the regulations prescribed thereunder shall, for each such |
10 | failure, be subject to a penalty of fifty dollars ($50). |
11 | * * * |
12 | (j) If any amount of tax required to be withheld by a |
13 | partnership, association [or], Pennsylvania S corporation or |
14 | lessee and paid over to the department under section 324 or |
15 | 324.4 is not paid on or before the date prescribed therefor, |
16 | there shall be added to the tax and paid to the department each |
17 | month five per cent of such underpayment for each month or |
18 | fraction thereof from the due date, for the period from the due |
19 | date to the date paid; but the underpayment shall, for purposes |
20 | of computing the addition for any month, be reduced by the |
21 | amount of any part of the tax which is paid by the beginning of |
22 | that month. The total of such additions shall not exceed fifty |
23 | per cent of the amount of such tax. |
24 | Section 21. The act is amended by adding a section to read: |
25 | Section 353.1. Failure to Timely Remit Tax Withheld.--(a) If |
26 | a person wilfully fails to timely remit tax withheld under this |
27 | article, the grading for the offense is as follows: |
28 | (1) If the amount of the tax is one thousand dollars |
29 | ($1,000) or less, the person commits a misdemeanor of the second |
30 | degree and, upon conviction, shall be sentenced to pay a fine |
|
1 | not exceeding one thousand dollars ($1,000) or to imprisonment |
2 | for not more than two years, or both. |
3 | (2) Except as set forth in paragraph (3), if the amount of |
4 | the tax exceeds one thousand dollars ($1,000), the person |
5 | commits a misdemeanor of the first degree and, upon conviction, |
6 | shall be sentenced to pay a fine not exceeding five thousand |
7 | dollars ($5,000) or to imprisonment for not more than five |
8 | years, or both. |
9 | (3) If the amount of the tax exceeds two thousand dollars |
10 | ($2,000), the person commits a felony of the third degree and, |
11 | upon conviction, shall be sentenced to pay a fine not exceeding |
12 | twenty-five thousand dollars ($25,000) or to imprisonment for |
13 | not more than seven years, or both. |
14 | (b) The penalties imposed by this section shall be in |
15 | addition to any other penalties imposed by any provision of this |
16 | article. |
17 | Section 21.1. Sections 407.1 and 1111-C of the act, amended |
18 | July 25, 2007 (P.L.373, No.55), are amended to read: |
19 | Section 407.1. Assessments.--(a) If the department |
20 | determines that unpaid or unreported tax is due the |
21 | Commonwealth, the department shall issue an assessment under |
22 | this section and sections 407.2, 407.3, 407.4 and 407.5. Such an |
23 | assessment is not subject to the settlement procedure in the act |
24 | of April 9, 1929 (P.L.343, No.176), known as The Fiscal Code. |
25 | (b) A notice of assessment and demand for payment shall be |
26 | mailed to the taxpayer. The notice shall set forth the basis of |
27 | the assessment. The assessment shall be paid to the department |
28 | upon receipt of the notice of assessment. Payment of the |
29 | assessment shall be without prejudice to the right of the |
30 | taxpayer to file a petition for reassessment in the manner |
|
1 | prescribed by Article XXVII. |
2 | (c) In the event that a taxpayer fails to file a report for |
3 | a tax governed by this article, the department may issue an |
4 | estimated assessment based upon the records and information |
5 | available or that may come into the department's possession. If |
6 | prior to the filing of a report the department estimates that |
7 | additional unpaid or unreported tax is due the Commonwealth, the |
8 | department may issue additional estimated assessments. |
9 | (d) A notice of estimated assessment and demand for payment |
10 | shall be mailed to the taxpayer. The assessment shall be paid to |
11 | the department upon receipt of the notice of assessment. Payment |
12 | of the estimated assessment does not eliminate the taxpayer's |
13 | obligation to file a report. |
14 | (e) A taxpayer shall have no right to petition for |
15 | reassessment, petition for refund or otherwise appeal a notice |
16 | of estimated assessment except as provided in subsection (f). |
17 | (f) The department shall remove an estimated assessment |
18 | within ninety days of the filing of a report and other |
19 | information required to determine the tax due the Commonwealth, |
20 | whereupon the department may issue an assessment as provided in |
21 | subsection (a). Any tax due the Commonwealth that is included in |
22 | an estimated assessment shall retain its lien priority as of the |
23 | date of the estimated assessment to the extent such amount is |
24 | included with an assessment issued upon the review of the filed |
25 | report. |
26 | [(g) The notice required by subsections (b) and (d) shall be |
27 | mailed by certified mail if the assessment is for $300 or more.] |
28 | Section 1111-C. Assessment and Notice of Tax; Review.--(a) |
29 | If any person shall fail to pay any tax imposed by this article |
30 | for which he is liable, the department is hereby authorized and |
|
1 | empowered to make an assessment of additional tax and interest |
2 | due by such person based upon any information within its |
3 | possession or that shall come into its possession. All of such |
4 | assessments shall be made within three years after the date of |
5 | the recording of the document, subject to the following: |
6 | (1) If the taxpayer underpays the correct amount of the tax |
7 | by twenty-five per cent or more, the tax may be assessed at any |
8 | time within six years after the date of the recording of the |
9 | document. |
10 | (2) If any part of an underpayment of tax is due to fraud or |
11 | an undisclosed, intentional disregard of rules and regulations, |
12 | the full amount of the tax may be assessed at any time. |
13 | (b) Promptly after the date of such assessment, the |
14 | department shall send a copy thereof, including the basis of the |
15 | assessment, to the person against whom it was made. Any taxpayer |
16 | against whom an assessment is made may petition the department |
17 | for a reassessment pursuant to Article XXVII. |
18 | [(d) The notice required by subsection (b) shall be sent by |
19 | certified mail if the assessment is for $300 or more.] |
20 | Section 21.2. Section 1296 of the act, amended June 29, 2002 |
21 | (P.L.559, No.89), is amended to read: |
22 | Section 1296. Disposition of Certain Funds.--Receipts from |
23 | the tax imposed by this article shall be deposited into the |
24 | General Fund. [Twenty million four hundred eighty-five thousand |
25 | dollars ($20,485,000) of the receipts deposited into the General |
26 | Fund in accordance with this section shall be transferred |
27 | annually to the Agricultural Conservation Easement Purchase |
28 | Fund.] Thirty million seven hundred thirty thousand dollars |
29 | ($30,730,000) of the receipts deposited into the General Fund in |
30 | accordance with this section shall be transferred annually to |
|
1 | the Children's Health Fund for health care for indigent |
2 | children. The transfers required by this section shall be made |
3 | in two equal payments by July 15 and January 15. |
4 | Section 21.3. Section 2005 of the act, amended July 25, 2007 |
5 | (P.L.373, No.55), is amended to read: |
6 | Section 2005. Assessment by Department.--(a) If any person |
7 | shall fail to pay any tax imposed by this article for which he |
8 | is liable, the department is hereby authorized and empowered to |
9 | make an assessment of additional tax due by such person, based |
10 | upon any information within its possession, or that shall come |
11 | into its possession. |
12 | (b) Promptly after the date of such assessment, the |
13 | department shall send a copy of the assessment, including the |
14 | basis of the assessment, to the person against whom it was made. |
15 | Within ninety days after the date upon which the copy of any |
16 | such assessment was mailed, such person may file with the |
17 | department a petition for reassessment of such taxes. Every |
18 | petition for reassessment shall state specifically the reasons |
19 | which the petitioner believes entitle him to such reassessment, |
20 | and it shall be supported by affidavit that it is not made for |
21 | the purpose of delay, and that the facts set forth therein are |
22 | true. It shall be the duty of the department, within six months |
23 | after the date of any assessment, to dispose of any petition for |
24 | reassessment. Notice of the action taken upon any petition for |
25 | reassessment shall be given to the petitioner promptly after the |
26 | date of reassessment by the department. |
27 | [(b.1) The notice required by subsection (b) shall be sent |
28 | by certified mail if the assessment is for $300 or more.] |
29 | (c) Within ninety days after the date of mailing of notice |
30 | by the department of the action taken on any petition for |
|
1 | reassessment filed with it, the person against whom such |
2 | assessment was made, may, by petition, request the Board of |
3 | Finance and Revenue to review such action. Every petition for |
4 | review filed hereunder shall state specifically the reason upon |
5 | which the petitioner relies, or shall incorporate by reference |
6 | the petition for reassessment in which such reasons shall have |
7 | been stated. The petition shall be supported by affidavit that |
8 | it is not made for the purpose of delay, and that the facts |
9 | therein set forth are true. If the petitioner be a corporation, |
10 | joint-stock association or limited partnership, the affidavit |
11 | must be made by one of the principal officers thereof. A |
12 | petition for review may be amended by the petitioner at any time |
13 | prior to the hearing, as hereinafter provided. The Board of |
14 | Finance and Revenue shall act finally in disposition of such |
15 | petitions filed with it within six months after they have been |
16 | received, and, in the event of the failure of said board to |
17 | dispose of any such petition within six months, the action taken |
18 | by the department upon the petition for reassessment shall be |
19 | deemed sustained. The Board of Finance and Revenue may sustain |
20 | the action taken on the petition for reassessment, or it may |
21 | reassess the tax due upon such basis as it shall deem according |
22 | to law and equity. Notice of the action of the Board of Finance |
23 | and Revenue shall be given by mail, or otherwise, to the |
24 | department and to the petitioner. |
25 | (d) In all cases of petitions for reassessment, review or |
26 | appeal, the burden of proof shall be upon the petitioner or |
27 | appellant, as the case may be. |
28 | (e) Whenever any assessment of additional tax is not paid |
29 | within ninety days after the date of the assessment, if no |
30 | petition for reassessment has been filed, or within ninety days |
|
1 | from the date of reassessment, if no petition for review has |
2 | been filed, or within thirty days from the date of the decision |
3 | of the Board of Finance and Revenue upon a petition for review, |
4 | or the expiration of the board's time for acting upon such |
5 | petition, if no appeal has been made, and in all cases of |
6 | judicial sales, receiverships, assignments or bankruptcies, the |
7 | department may call upon the Office of Attorney General to |
8 | collect such assessment. In such event, in a proceeding for the |
9 | collection of such taxes, the person against whom they were |
10 | assessed shall not be permitted to set up any ground of defense |
11 | that might have been determined by the department, the Board of |
12 | Finance and Revenue or the courts. The department may also |
13 | certify to the Liquor Control Board, for such action as the |
14 | board may deem proper, the fact that any person has failed to |
15 | pay or duly appeal from such assessment of additional tax. The |
16 | department may also provide, adopt, promulgate and enforce such |
17 | rules and regulations, as may be appropriate, to prevent further |
18 | shipment or transportation of malt or brewed beverages into this |
19 | Commonwealth by any person against whom such unpaid assessment |
20 | shall have been made. |
21 | Section 21.4. The act is amended by adding sections to read: |
22 | Section 3003.22. Administrative Bank Attachment for Accounts |
23 | of Obligors to the Commonwealth.--(a) The department may order |
24 | the attachment and seizure of funds in an obligor's account that |
25 | the department reasonably believes to hold property subject to a |
26 | lien in favor of the Commonwealth. Upon receiving seized funds, |
27 | the department shall apply the amount seized to the obligor's |
28 | lien obligation. |
29 | (b) (1) If the department has a reasonable belief that an |
30 | obligor's account holds property subject to a lien in favor of |
|
1 | the Commonwealth, the department may order the attachment of |
2 | funds in the obligor's account by sending a notice to the |
3 | financial institution. |
4 | (2) The notice shall be sent by an electronic format or any |
5 | other reasonable manner as agreed to by the department and the |
6 | financial institution. |
7 | (3) The notice shall include all of the following: |
8 | (i) The name of the obligor. |
9 | (ii) The amount of the Commonwealth's lien, including |
10 | interest and penalty accrued up to forty-five days after the |
11 | date of notice. |
12 | (iii) The current or last known address of the obligor. |
13 | (iv) The Social Security number, Federal employer |
14 | identification number or other taxpayer identification number of |
15 | the obligor. |
16 | (v) An order to immediately attach one or more accounts held |
17 | by the financial institution in the name of the obligor for an |
18 | aggregate amount equal to the lesser of the amounts in all |
19 | accounts or the Commonwealth's lien. |
20 | (c) (1) Upon receipt of the notice described in subsection |
21 | (b), the financial institution shall promptly attach one or more |
22 | of the accounts of the obligor held by the financial institution |
23 | for an aggregate amount equal to the lesser of: |
24 | (i) the total of the amounts in all the accounts of the |
25 | obligor held by the financial institution; or |
26 | (ii) the amount stated in the notice. |
27 | Upon the attachment and until the financial institution receives |
28 | further notice from the department, as provided in this section, |
29 | the financial institution may not allow any activity to occur in |
30 | any of the accounts attached up to the amount of the attachment. |
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1 | (2) Within twenty days after the financial institution |
2 | receives the notice described in subsection (b), the financial |
3 | institution shall inform the department that the financial |
4 | institution has complied with the attachment order and shall |
5 | specify the aggregate amount attached pursuant to the order. |
6 | (3) (i) The financial institution may assess a reasonable |
7 | administrative fee against the accounts or the obligor in |
8 | addition to the amount attached. |
9 | (ii) In the case of insufficient funds to cover both the fee |
10 | authorized by subparagraph (i) and the amount identified in the |
11 | notice under subsection (b), the financial institution may first |
12 | deduct the fee from the amount attached and retain it from the |
13 | amount seized and forwarded to the department as provided in |
14 | this section. |
15 | (d) (1) Except as otherwise provided in paragraph (3), |
16 | within ten business days after the department has received |
17 | notice from the financial institution under subsection (c)(2) of |
18 | compliance with the order to attach the obligor's account, the |
19 | department shall send a notice to the obligor by first class |
20 | mail to the obligor's current or last known address. |
21 | (2) The notice shall contain the following information: |
22 | (i) The address of the department. |
23 | (ii) The telephone number, address and name of a contact |
24 | person at the department. |
25 | (iii) The name and Social Security number, Federal employer |
26 | identification number or other taxpayer identification number of |
27 | the obligor. |
28 | (iv) The current or last known address of the obligor. |
29 | (v) The total amount of the Commonwealth's lien owed by the |
30 | obligor, including interest and penalty accrued up to forty-five |
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1 | days after the date of notice. |
2 | (vi) The date the notice is being sent. |
3 | (vii) A statement informing the obligor that the department |
4 | has ordered the financial institution to attach the amount of |
5 | the Commonwealth's lien owed by the obligor from one or more of |
6 | the accounts of the obligor. |
7 | (viii) For each account of the obligor, the name of the |
8 | financial institution that has attached amounts as required by |
9 | this section. |
10 | (ix) A statement that the order may be challenged in |
11 | accordance with subsection (e). |
12 | (x) A statement informing the obligor that unless a timely |
13 | challenge is made by the obligor or an account holder of |
14 | interest under subsection (e), the department shall notify the |
15 | financial institution to seize the amount attached by the |
16 | financial institution and forward it to the department. |
17 | (3) The department shall not be required to send the notice |
18 | described under this subsection if, prior to the time that the |
19 | notice must be sent, the department and the obligor agree to an |
20 | arrangement under which the obligor will pay amounts owed under |
21 | the Commonwealth's lien. |
22 | (e) (1) An obligor or an account holder of interest may |
23 | challenge the actions of the department under this section by |
24 | filing a motion with the court of common pleas within ten days |
25 | of the date of the notice sent under subsection (d). |
26 | (2) An obligor or an account holder of interest may |
27 | challenge the actions of the department based on: |
28 | (i) a mistake as to any of the following: |
29 | (A) The identity of the obligor. |
30 | (B) The ownership of the account. |
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1 | (C) The contents of the account. |
2 | (D) The amount of the lien obligation due. |
3 | (ii) a request for spousal relief from joint liability; or |
4 | (iii) any other good cause. |
5 | (3) An obligor or an account holder of interest may not |
6 | challenge the actions of the department based on a mistake or |
7 | error in the original assessment underlying a lien against the |
8 | obligor. |
9 | (f) (1) If a timely challenge is not made by the obligor or |
10 | an account holder of interest under subsection (e), the |
11 | department shall direct the financial institution to: |
12 | (i) seize the amount attached by the financial institution |
13 | and forward it to the department; |
14 | (ii) reduce the amount attached by the financial institution |
15 | to a revised amount as stated by the department, seize the |
16 | revised amount and forward it to the department and release the |
17 | balance of the account; or |
18 | (iii) release the amount attached by the financial |
19 | institution. |
20 | (2) The department may direct a financial institution to |
21 | seize and forward attached funds before the time for filing a |
22 | timely challenge under subsection (e) upon agreement among the |
23 | department, the obligor and, in cases where the department is |
24 | aware of an account holder of interest, the account holder of |
25 | interest. |
26 | (g) (1) If a determination is made by the court, pursuant |
27 | to a challenge under subsection (e), that the account of the |
28 | obligor should not have been attached, the department shall |
29 | notify the financial institution, in the manner specified in |
30 | subsection (b)(2), to release the amount attached by the |
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1 | financial institution. |
2 | (2) If a determination is made by the court, pursuant to a |
3 | challenge under subsection (e), to reduce the amount attached by |
4 | the financial institution, the department shall notify the |
5 | financial institution, in the manner specified in subsection |
6 | (b)(2), to revise the amount as stated by the department, to |
7 | seize and forward the revised amount to the department and to |
8 | release the balance of the account attached by the financial |
9 | institution. |
10 | (3) If a determination is made by the court, pursuant to a |
11 | challenge made under subsection (e), that the attachment by the |
12 | financial institution was proper, the department shall notify |
13 | the financial institution, in the manner specified in subsection |
14 | (b)(2), to seize the amount attached by the financial |
15 | institution and forward it to the department. |
16 | (h) A financial institution that complies with an order and |
17 | notice from the department under this section is not liable to |
18 | any person, including the department, the obligor or any account |
19 | holder of interest, for any of the following: |
20 | (1) disclosing information to the department under this |
21 | section; |
22 | (2) sending any amount seized to the department; |
23 | (3) wrongful dishonor or any other claim relating to the |
24 | attachment and seizure of any account as ordered by the |
25 | department; or |
26 | (4) any other action taken in good faith to comply with the |
27 | requirements of this section. |
28 | (i) A financial institution shall not be required to |
29 | reimburse fees assessed against an account or an obligor as a |
30 | result of the department instituting an action under this |
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1 | section or as otherwise permitted by law or authorized by |
2 | contract. |
3 | (j) (1) If, under the provisions of this section, a |
4 | financial institution fails to attach accounts as required in a |
5 | timely manner or fails to forward the proper amount of funds |
6 | attached to the department in a timely manner, the financial |
7 | institution shall be subject to a penalty of five per cent of |
8 | the amount of funds which should have been attached or forwarded |
9 | for each month or fraction thereof from the date the funds |
10 | should have been attached or forwarded to the date the funds are |
11 | attached or forwarded. The total amount of the penalty shall not |
12 | exceed fifty per cent of the proper amount of funds which should |
13 | have been attached or forwarded. |
14 | (2) The penalty imposed by this section shall be assessed, |
15 | enforced, administered or collected under the provisions of |
16 | Article II. |
17 | (k) This section shall not be construed to prohibit the |
18 | department or any other Commonwealth agency from collecting |
19 | obligations due from an obligor in any other manner authorized |
20 | by law. |
21 | (l) As used in this section, the following words and phrases |
22 | shall have the meanings given to them in this subsection: |
23 | "Account." (1) Any of the following: |
24 | (i) Funds from a demand deposit account, checking account, |
25 | negotiable order of withdrawal account, savings account, time |
26 | deposit account, money market mutual fund account or certificate |
27 | of deposit account. |
28 | (ii) Funds paid toward the purchase of shares or other |
29 | interest in an entity as described in paragraphs (1) and (2) of |
30 | the definition of "financial institution." |
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1 | (iii) Funds or property held by a depository institution as |
2 | described in paragraph (3) of the definition of "financial |
3 | institution." |
4 | (2) The term shall not include any of the following: |
5 | (i) An account that an obligor does not have access due to a |
6 | pledge of the funds as security for a loan or other obligation. |
7 | (ii) Funds or property deposited to an account after the |
8 | time that a financial institution initially attaches the |
9 | account. |
10 | (iii) An account that a financial institution has a present |
11 | right to exercise a right of setoff. |
12 | (iv) An account that has an account holder of interest named |
13 | as an owner on the account. |
14 | (v) An account that an obligor does not have an |
15 | unconditional right of access. |
16 | "Account holder of interest." A person, other than an |
17 | obligor of an account, who asserts an ownership interest in an |
18 | account. |
19 | "Department." The Department of Revenue of the Commonwealth. |
20 | "Financial institution." Any of the following: |
21 | (1) A depository institution, as defined in section 3(c) of |
22 | the Federal Deposit Insurance Act (64 Stat. 873, 12 U.S.C. § |
23 | 1813(c)). |
24 | (2) A Federal credit union or State credit union, as defined |
25 | in section 1752(1) of the Federal Credit Union Act (48 Stat. |
26 | 1216, 12 U.S.C. § 1752(1)). |
27 | (3) A benefit association, insurance company, safe deposit |
28 | company, money market mutual fund or similar entity doing |
29 | business in this Commonwealth that holds property or maintains |
30 | accounts reflecting property belonging to others. |
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1 | "Obligor." Any of the following: |
2 | (1) An entity engaged in a business whose property is |
3 | subject to a Commonwealth tax lien or liens totaling at least |
4 | one thousand dollars ($1,000). |
5 | (2) An individual operating as a sole proprietor whose |
6 | property is subject to a Commonwealth tax lien or liens totaling |
7 | at least one thousand dollars ($1,000). |
8 | (3) A shareholder, member or partner of a pass-through |
9 | entity whose property is subject to a Commonwealth tax lien or |
10 | liens totaling at least one thousand dollars ($1,000). |
11 | (4) A corporate officer or other responsible individual who |
12 | has been assessed pursuant to the provisions of section 225 or |
13 | 320 and whose property is subject to a Commonwealth tax lien or |
14 | liens totaling at least one thousand dollars ($1,000). |
15 | "Pass-through entity." A partnership as defined in section |
16 | 301(n.0) or a Pennsylvania S corporation as defined in section |
17 | 301(n.2). |
18 | Section 3003.23. Tax Delinquent Placard.--(a) |
19 | Notwithstanding any other provision of this act, the department |
20 | shall have the authority to attach a removable, damage-proof |
21 | placard as specified in subsection (b) to a conspicuous position |
22 | on the exterior of a person's place of business if any of the |
23 | following apply: |
24 | (1) The person fails to pay a State tax within ninety days |
25 | after the due date and the tax liability has not been timely |
26 | appealed or subject to a duly authorized deferred payment plan. |
27 | (2) The person fails to file a State tax return or report |
28 | within ninety days after the due date of the applicable return |
29 | or report. |
30 | (b) The placard may list the following information: |
|
1 | (1) "TAX DELINQUENT" at the top of the placard. |
2 | (2) The person's name, business name or trade name. |
3 | (3) The address of the person or business. |
4 | (4) The type of tax delinquent and the specifics of the |
5 | delinquencies, including the amount of tax due, if applicable. |
6 | (5) "THE PENNSYLVANIA DEPARTMENT OF REVENUE" at the bottom |
7 | of the placard. |
8 | (6) Any other information the department deems necessary. |
9 | (c) The placard shall not be removed until all State taxes |
10 | are paid in full, including interest and penalty, or all State |
11 | tax returns or reports are filed. The placard shall be removed |
12 | by the department or the person upon written authorization from |
13 | the department. |
14 | (d) Anyone who defaces, covers or removes the placard |
15 | without prior approval of the department shall be guilty of a |
16 | summary offense and, upon conviction thereof, be sentenced to |
17 | pay a fine of not less than three hundred dollars ($300) nor |
18 | more than one thousand five hundred dollars ($1,500) and, in |
19 | default thereof, to undergo imprisonment of not less than five |
20 | days nor more than thirty days. |
21 | (e) The penalties imposed by this subsection shall be in |
22 | addition to any other penalties imposed by this article. The |
23 | Secretary of Revenue may designate employes of the department to |
24 | enforce the provisions of this section. The employes shall |
25 | exhibit proof of and be within the scope of the designation when |
26 | instituting proceedings as provided by the Pennsylvania Rules of |
27 | Criminal Procedure. |
28 | (f) For purposes of administering the provisions of this |
29 | section, an employe designated by the Secretary of Revenue is |
30 | authorized to place the placard on the exterior of the place of |
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1 | business at reasonable times to enforce the provisions of this |
2 | section subject to constitutional restrictions on unreasonable |
3 | searches or seizures. |
4 | (g) As used in this section, the following words and phrases |
5 | shall have the meanings given to them in this section: |
6 | "Person." Any association, joint venture or joint-stock |
7 | company, partnership, limited partnership association, limited |
8 | liability company, business corporation, nonprofit corporation, |
9 | sole proprietor or any other group of individuals, however |
10 | organized. |
11 | Section 3003.24. Additional Citation Authority.-- |
12 | Notwithstanding any other provision of this act, any person who: |
13 | (1) does not pay any State tax, interest or penalty within |
14 | ninety days after the due date and the tax liability due has not |
15 | been timely appealed or subject to a duly authorized deferred |
16 | payment plan; |
17 | (2) underpays any State tax, interest or penalty within |
18 | ninety days after the due date and the tax liability due has not |
19 | been timely appealed or subject to a duly authorized deferred |
20 | payment plan; or |
21 | (3) fails to file a tax return or report or any other |
22 | reporting document within ninety days after the due date of the |
23 | applicable payment or return, report or any other reporting |
24 | document; |
25 | shall be guilty of a summary offense and, upon conviction |
26 | thereof, be sentenced to pay a fine of not less than three |
27 | hundred dollars ($300) nor more than one thousand five hundred |
28 | dollars ($1,500) and, in default thereof, to undergo |
29 | imprisonment of not less than five days nor more than thirty |
30 | days. The penalties imposed by this subsection shall be in |
|
1 | addition to any other penalties imposed by this article. For |
2 | purposes of this subsection, the offering for sale or lease of |
3 | any service or tangible personal property, the sale or use of |
4 | which is subject to tax, during any calendar day shall |
5 | constitute a separate violation. The Secretary of Revenue may |
6 | designate employes of the department to enforce the provisions |
7 | of this subsection. The employes shall exhibit proof of and be |
8 | within the scope of the designation when instituting proceedings |
9 | as provided by the Pennsylvania Rules of Criminal Procedure. |
10 | Section 22. This act shall apply as follows: |
11 | (1) The addition of sections 268.1 and 353.1 of the act |
12 | shall apply to tax due on or after July 1, 2012. |
13 | (2) The amendment of section 227 of the act shall apply |
14 | to returns due on or after July 1, 2012. |
15 | (3) The amendment of sections 230, 338, 407.1, 1111-C |
16 | and 2005 of the act shall apply to all assessments issued on |
17 | or after June 30, 2012. |
18 | Section 23. This act shall take effect as follows: |
19 | (1) The following provisions shall take effect |
20 | immediately: |
21 | (i) The amendment of section 208 of the act. |
22 | (ii) The amendment of section 230 of the act. |
23 | (iii) The amendment of section 338 of the act. |
24 | (iv) The amendment of section 407.1 of the act. |
25 | (v) The amendment of section 1111-C of the act. |
26 | (vi) The amendment of section 2005 of the act. |
27 | (vii) The addition of section 3003.23 of the act. |
28 | (viii) The addition of section 3003.24 of the act. |
29 | (ix) This section. |
30 | (2) The addition of section 3003.22 of the act shall |
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1 | take effect in 60 days. |
2 | (3) The amendment of section 1296 of the act shall take |
3 | effect July 1, 2012. |
4 | (4) The remainder of this act shall take effect January |
5 | 1, 2013. |
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