PRINTER'S NO. 753
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
793
Session of
2023
INTRODUCED BY ROSSI, STAMBAUGH, STAATS, R. MACKENZIE, JAMES,
KAUFFMAN, HAMM, TWARDZIK, NEILSON, ZIMMERMAN, ROWE, KEEFER
AND LEADBETER, APRIL 3, 2023
REFERRED TO COMMITTEE ON FINANCE, APRIL 3, 2023
AN ACT
Repealing the act of July 13, 1953 (P.L.389, No.86), entitled
"An act to provide revenue by imposing a tax on retail sales
of tangible personal property to consumers; requiring sellers
to file returns; providing for the assessment, collection and
lien of the tax; imposing duties on prothonotaries;
prescribing penalties; and providing for the use of the
proceeds of such tax for public school purposes."
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The act of July 13, 1953 (P.L.389, No.86), known
as the Consumers Sales Tax Act, is repealed:
[ARTICLE I
SHORT TITLE AND DEFINITIONS
Section 101. Short Title.--This act shall be known and may
be cited as the "Consumers Sales Tax Act."
Section 102. Definitions.--The following words, terms and
phrases when used in this act shall have the meaning ascribed to
them in this section, except where the context clearly indicates
a different meaning:
(1) "Business." Any and all activities engaged in or caused
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to be engaged in with the object of gain or economic benefit,
direct or indirect.
(2) "Department." The Department of Revenue of this
Commonwealth.
(3) "Sale Price." The amount received in money, credits or
intangible property from sales at retail, without deduction on
account of the cost of property sold, amounts paid for interest,
discounts, losses or any other expenses or burdens whatsoever.
In computing sale price, there may be deducted any credit
actually given or refund actually paid for goods returned and
any credit actually given or allowance actually made for any
tangible personal property actually taken in trade or exchange
for the whole or any part of the sale price of the property
sold.
(4) "Person." Any natural person, firm, partnership,
association, corporation, fiduciary, or other entity, carrying
on business. Whenever used in any provision of this act which
prescribes or imposes a fine or imprisonment or both, the term
"person," as applied to a firm, partnership or association,
shall include the members thereof, and, as applied to a
corporation, the officers thereof. A firm, partnership,
association or a corporation may be subjected as an entity,
however, to the payment of a fine.
(5) "Purchaser." Any person who purchases tangible personal
property in any transaction taxable under this act.
(6) "Seller." Any person engaged in the business of selling
tangible personal property at retail, and it shall be immaterial
whether the goods sold are or are not manufactured or produced
by the seller.
(7) "Sale at Retail." Any transaction by which the
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ownership of tangible personal property is transferred for a
consideration, when such transfer is made to the transferee for
consumption or use. The term "sale at retail" includes any
rental, bailment lease, conditional sale and any other
transaction, under whatever name or form, whereby title being
retained for security is ultimately to pass to the purchaser or
whereby possession is transferred in lieu of a transfer of
title.
The term "sale at retail" does not include:
(a) Sales for the purpose of resale of tangible personal
property in its original form.
(b) Any isolated sale of tangible personal property, other
than motor vehicles, trailers and semi-trailers, by one not a
seller and not made in the ordinary course of the transferor's
business.
(c) Any isolated sale of tangible personal property, other
than motor vehicles, trailers and semi-trailers, by one who,
though a seller, is not such a seller with respect to the
article sold, but all sales by a seller shall be presumed to be
sales at retail.
(d) Sales of intoxicating liquors, including malt and brewed
beverages.
(e) Sales of cigarettes.
(f) Sales of gasoline and other motor fuels.
(g) Sales of utility services, the gross receipts from which
are taxed by the Commonwealth.
(h) Sales to the Commonwealth or any of its agencies or
political subdivisions or to authorities created by or pursuant
to law.
(i) Sales to the United States or any of its agencies.
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(j) Sales in interstate and foreign commerce, but only in
the instances and to the extent that the Commonwealth is
prohibited from taxing such sales by the Constitution of the
United States.
(k) Sales of newspapers, magazines and other periodicals.
(l) Sales of medicine on prescription, sales of crutches,
wheelchairs for the use of cripples and invalids, and when
designed to be worn on the person of the purchaser or user,
artificial limbs, artificial eyes and artificial hearing
devices, sales of false teeth by a dentist and the materials
used by a dentist in dental treatment, sales of eyeglasses when
especially designed or prescribed by an opthalmologist, oculist
or optometrist for the personal use of the owner or purchaser,
and sales of artificial braces and supports designed solely for
the use of crippled persons.
(m) Sales of bakery products, milk, groceries and meat as
food products for human consumption. For the purposes of this
clause, (i) "milk" shall mean raw milk products from domestic
animals or such milk when processed or canned; (ii) "groceries"
shall mean all food products and all food ingredients for human
consumption or for use in the preparation thereof for human
consumption, ordinarily sold in grocery stores, except candies,
confections, soft drinks, tobacco or tobacco products; (iii)
"meat" shall include the flesh of animals, fish, sea food,
poultry and game.
(n) Sale of clothing and shoes, but not jewelry or any other
object not worn primarily to cover the human body against
nakedness or cold.
(o) Sales of tangible personal property (i) which is to be
used in fabricating, compounding or manufacturing tangible
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personal property or in producing public utility service to be
sold ultimately at retail, or (ii) which is to be used in the
process of farming, agriculture or horticulture and which, in
either event, becomes an ingredient or component part of the
fabricated, compounded or manufactured tangible personal
property or public utility product or of the product of farming,
agriculture or horticulture, or is consumed in the process of
fabrication, compounding, manufacturing or producing or in the
process of farming, agriculture or horticulture, or (iii) which
is to be used in the production or delivery of public utility
service.
(p) The performance of personal service.
(q) Sales of tangible personal property intended for
incorporation and incorporated into a building, road, street,
bridge, or other structure, provided such property is so
incorporated pursuant to a contract entered into prior to the
effective date of this act, and provided further that the person
so incorporating such property submit to the department proof of
the facts in such form as the department may require.
(r) Sales of tangible personal property intended for use and
used in a church for religious purposes.
(s) Sales of water by water companies, political
subdivisions or authorities.
(8) "Tangible personal property." Corporeal personal
property including, but not restricted to, goods, wares and
merchandise. The term "tangible personal property" does not
include money, deposits in banks, shares of stock, bonds, notes,
credits, or evidence of an interest in property or evidence of
debt.
(9) "Tax." Any tax, interest or penalty imposed or levied
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under the provisions of this act.
(10) "Taxpayer." Any retail dealer or any person making
sales taxable under this act.
(11) "Ultimate consumer." As referring to any tangible
personal property, any person who uses or consumes such tangible
personal property.
(12) "Wholesale dealer." Any person engaged in the business
of selling tangible personal property to retail dealers for
resale only and not for personal use or consumption.
ARTICLE II
IMPOSITION AND COLLECTION OF TAX
Section 201. Imposition.--A tax is hereby imposed upon each
separate sale at retail within this Commonwealth, which tax
shall be collected by the seller from the purchaser and shall be
paid over to the Commonwealth as herein provided. In the case of
a sale at retail of motor vehicles, trailers or semi-trailers by
one not a seller, the tax shall be paid by the ultimate consumer
to the department upon application to the department for the
issuance of a certificate of title. The department shall not
issue a certificate of title until the tax has been paid or
evidence satisfactory to the department has been given to show
that no tax is due.
Section 202. Amount of Tax.--(a) The rate of tax shall be
one per centum (1%) of the sale price of each separate sale at
retail.
(b) The tax shall be computed as follows:
(1) Where the consideration is ten cents or less, no tax
shall be collected.
(2) On each sale where the consideration is from eleven
cents to one dollar, both inclusive, the tax shall be one cent.
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(3) On each sale where the consideration is in excess of one
dollar, the tax shall be one cent on each additional dollar or
fraction thereof.
Section 203. Purchaser to Pay; Accounting by Sellers.--The
seller shall in each case demand the tax from the purchaser and
the purchaser shall pay the same to the seller. The seller shall
keep the amount of all of the taxes so paid to him by all
purchasers in a fund separate and apart from the proceeds of the
sales and from all his other funds, unless the department
otherwise directs. If the department shall authorize any seller
to commingle the proceeds of the tax with the proceeds of sale,
the claim of the Commonwealth for the tax shall be enforceable
against and shall take precedence over all other claims against
the commingled fund. Each seller shall, as hereinafter provided,
account to the Commonwealth for the entire amount of all taxes
collected from purchasers.
Section 204. Total Amount Collected to be Remitted.--No
profit other than the compensation provided for in section two
hundred twelve shall accrue to a seller or other person from the
collection of any tax imposed by this act. Any person collecting
any such tax shall return and remit the total amount thereof to
the department, as hereinafter provided. If the total amount of
taxes so collected in any period shall be in excess of one per
centum (1%) of the sale price of the sales by the person
collecting such taxes during such period, such person shall
nevertheless remit to the department the total amount of taxes
collected without deducting the amount by which the taxes
collected exceed one per centum (1%) of the sale price of his
sales during such period and without making any other deduction
other than the compensation allowed by section two hundred
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twelve of this act.
Section 205. Sales Presumed to be at Retail.--Every sale of
tangible personal property shall be presumed to be at retail and
to be taxable. The seller may require any purchaser claiming
that a sale is not taxable to give him a written statement
signed by the purchaser and giving his address, certifying that
the tangible personal property, the subject of the sale, is
purchased for a purpose not included in the definition of "sale
at retail." Such a certificate shall, in the absence of actual
fraud on the part of the seller, justify him in failing to
collect the tax. If he fails to collect a tax on any sale where
he does not obtain such a written statement from the purchaser,
the seller shall be liable for the tax, as hereinafter provided,
unless he shall sustain the burden of proving that the sale was
not at retail.
Section 206. Tax to be Paid by Ultimate Consumer.--It is
hereby stated as the legislative intent that the tax imposed
hereby shall be paid by the ultimate consumer. The amount of the
tax shall be added to the sale price and shall constitute a part
of that price (though a separate item, as hereinbefore provided)
and shall be collectible as such.
Section 207. Seller Shall Not Pay Tax; Penalty.--(a) No
person engaged in a business as a retail dealer shall advertise
or represent to the public in any manner, directly or
indirectly, that he will absorb said tax or any part thereof or
that the full tax on each sale will not be considered an element
of the price and be added to the price otherwise ascertained.
Nor shall any such person knowingly absorb the tax on any sale
nor fail to add the full amount of the tax to the sale price
otherwise ascertained and collect said tax as part of the sale
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price.
(b) Any person who violates any of the provisions of
subsection (a) of this section shall be guilty of a misdemeanor
and shall, upon conviction thereof, be sentenced to pay a fine
not exceeding one thousand dollars ($1000) and costs of
prosecution, or to undergo imprisonment for not more than one
year, or both, at the discretion of the court.
Section 208. Agreements and Regulations as to Methods of
Adding the Tax.--(a) To provide uniform methods of adding the
average equivalent of the tax imposed by this act to the sale
price in each sale subject to the tax, appropriate rules and
regulations may be adopted, subject to the approval of the
department, by competing taxpayers or associations of taxpayers.
Such rules and regulations shall provide that the tax shall in
each instance be computed and collected on the basis of the
total transaction, without regard to the value or price of the
separate items making up the total amount of a single sales
transaction. Such rules and regulations shall not, if complying
with the foregoing provisions and not involving price-fixing, be
deemed illegal as in restraint of trade or commerce or
otherwise. The department may cooperate in formulating such
rules and regulations and shall approve any such rules and
regulations which it finds to be in compliance with this act.
(b) In the event appropriate rules and regulations governing
any class of business are not submitted to the department for
approval within such time as the department prescribes, which
shall be not earlier than thirty days after the effective date
of this act, the department shall, as soon as reasonably
possible, formulate and promulgate rules and regulations to
effectuate the purpose of this section.
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Section 209. Collection of Tax on Credit Sales.--If any sale
subject to tax hereunder is wholly or partly on credit, the
taxpayer shall require the purchaser to pay in cash at the time
the sale is made or within thirty days thereafter, the full tax
due on the basis of the entire sale price.
Section 210. Records of Sales.--Any person engaged in
business as a retail dealer who is at the same time engaged in
another business or businesses which does not involve the making
of sales taxable under this act shall keep separate books or
records of his business as a seller so as to show the sales
taxable under this act separately from his transactions not
taxable hereunder. If any such person fails to keep such
separate books or records, he shall be liable to tax at the rate
designated in section two hundred two hereof upon the entire
sale price of both or all of his businesses.
Section 211. Sales between Affiliated Interests, etc.--In
determining sale price of taxable sales where, because of
affiliation of interests between the seller and buyer or for any
other reason, the sale price from a sale are not indicative of
the true value of the article sold or the fair price thereof,
the department shall prescribe uniform and equitable rules for
determining the amount of constructive sales prices upon the
basis of which the tax shall be levied. Such rules shall provide
for a constructive amount of a sales price for each such sale
which shall equal a price for such article which would naturally
and fairly be charged in an arms-length transaction in which the
element of common interests between buyer and seller or any
other element causing a distortion of the price is absent.
Section 212. Compensation to Seller for Collection and
Return.--For the purpose of compensating sellers for the keeping
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of prescribed records and the proper accounting and remitting of
taxes by them, such sellers shall be allowed a commission of
three per centum (3%) of the amount of the tax due and accounted
for and remitted to the department, which commission shall be
allowed in the form of a deduction in submitting the report of
such seller and the payment of the amount due by him. Such
compensation, commission or allowance shall not be granted nor
shall any deduction be permitted with respect to any taxes not
paid on or before the due date thereof or where there is a
manifest failure to maintain proper records or make proper
prescribed reports.
Section 213. Registration of Sellers.--Each person desiring
to continue to engage or begin to engage in the business of
seller, as herein defined, shall, on or before the effective
date of this act or prior to the beginning business thereafter,
make application to the department for a certificate of
registration upon a form prescribed by it. Upon receipt of such
application, the department shall promptly issue to each such
applicant such a certificate, with duplicates thereof for each
additional place of business of the applicant within this
Commonwealth. Each certificate or duplicate shall, in addition
to the seller's name and principal place of business, state the
place of business to which it is applicable, and shall be
prominently displayed at such place of business. A seller who
has no regular place of business shall display his certificate
upon his cart, stand, truck or other merchandising device.
Certificates of registration and duplicates thereof shall be
non-assignable and non-transferable and shall be surrendered to
the department immediately upon the seller's ceasing to do
business at the place stated therein. Any seller who shall
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wilfully fail to obtain and display a certificate of
registration or duplicates thereof at such of his places of
business shall, upon conviction therefor in a summary
proceeding, be sentenced to pay a fine of not more than one
hundred dollars ($100) and costs of prosecution, and, in default
of payment thereof, shall be imprisoned for a period not
exceeding thirty days. The failure of any seller to procure the
certificate of registration as herein required shall not relieve
him from the duty of collecting and remitting the tax as
required by this act.
ARTICLE III
RETURNS AND PAYMENT
Section 301. Returns and Payment.--(a) The taxes imposed by
this act shall be due and payable on or before the twentieth day
of November, February, May and August, for the periods ending
the last day of October, January, April and July, respectively,
during which the sales at retail subject to the tax were made.
For the month ending on the thirty-first day of August, one
thousand nine hundred fifty-five, the taxes imposed by this act
shall be due and payable on or before the twentieth day of
October, one thousand nine hundred fifty-five.
(b) Each taxpayer shall, on or before the twentieth day of
November, February, May and August, make out and sign a return
for the preceding tax period. For the month ending on the
thirty-first day of August, one thousand nine hundred fifty-
five, the return shall be made out and signed on or before the
twentieth day of October, one thousand nine hundred fifty-five.
Such return shall be mailed to the department in time so that it
will reach the department, in the ordinary course of the mails,
on or before the twentieth day of the month succeeding the
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period with respect to which the return is made.
(c) The return shall be on a form prescribed by the
department. The department shall distribute return forms to
taxpayers but no taxpayer shall be excused from liability for
failure to file a return or pay the tax because he has failed to
receive a form.
Each such return shall show:
(1) The total gross proceeds of the business of the taxpayer
for the period with respect to which the return is filed;
(2) The amount of sales at retail of such business with
respect to which the tax is computed;
(3) The amount of tax due;
(4) Such other information with respect to the business, the
amount of sales at retail or related matters as the department
may reasonably require.
Any such return may be signed by a duly authorized agent of
the taxpayer with the same effect as if signed by the taxpayer
himself.
Any person making a false return shall be guilty of perjury
to the same extent as though the return had been sworn to.
(d) A remittance for the amount of the tax shall accompany
each quarterly return.
Section 302. Other Times for Returns and Payment.--The
department may, upon written request, authorize a taxpayer whose
books and records are not kept on a calendar basis to file
returns at other times than those specified in this act and in
lieu of such returns. In no event shall the taxpayer be
permitted to make less than one return during a three-month
period. Except as to the time of filing and the period covered,
all the provisions as to returns required by sections three
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hundred one and three hundred four shall be applicable to
returns made under this section and a remittance for the tax
shall accompany any return made under this section.
Section 303. Consolidation of Use Tax Returns.--Any sellers
liable for the collection or payment of the taxes imposed by the
Use and Storage Tax Act may elect, under regulations promulgated
by the department, to report and pay the taxes due under said
act at the same time as they file returns and pay the taxes due
under this act.
Section 304. Annual Returns.--(a) On or before the last day
of February in each year, every taxpayer shall file with the
department, in the manner heretofore specified for quarterly
returns, an annual return covering the entire preceding calendar
year or such part thereof as the taxpayer was engaged in a
business as a retail dealer. For the period ending on the
thirty-first day of August, one thousand nine hundred fifty-
five, and including those periods not previously covered by an
annual return, the annual return shall be filed on or before the
last day of October, one thousand nine hundred fifty-five. Such
return shall be in addition to and not in lieu of returns
required to be filed under the provisions of sections three
hundred one or three hundred two.
(b) Each such annual return shall include all items required
for returns in section three hundred one hereof for the entire
calendar year with respect to which it is made and shall be
signed by the taxpayer or his authorized agent. Any person
making a false return shall be guilty of perjury to the same
extent as though the return had been sworn to.
(c) If the amount of tax due for the preceding year as shown
by the annual return of any taxpayer is greater than the amount
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already paid by him in connection with his quarterly or other
returns, he shall send with such annual return a remittance for
the unpaid amount of tax for the year.
Section 305. Extension of Time for Making Returns.--The
department may, on written application and for good cause shown,
extend the time for making any return required or permitted by
any of the preceding sections of this article: Provided,
however, That the time for making any return other than an
annual return shall not be extended more than one month and the
time for making an annual return shall not be extended more than
three months.
ARTICLE IV
PROCEDURE
Section 401. Department of Revenue to Administer.--The
Department of Revenue shall administer and enforce this act and
collect the tax hereby imposed.
Section 402. Examination of Returns; Assessment of Tax;
Credits.--(a) As soon as practicable after any return is filed,
the department shall examine it, and if the return shows a
greater tax due than the amount of the remittance sent with such
return, the department shall forthwith assess the difference.
Such difference shall be paid to the department within ten days
after notice of its assessment. If so paid, there shall be no
interest or penalty; if not so paid, there shall be added to
such amount five per centum thereof and, in addition, interest
at the rate of one-half of one per centum per month for each
month or fraction thereof from the date of such notice to the
date of payment. No taxpayer shall have any right of appeal from
such an assessment.
(b) If the department determines that any return or returns
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of any taxpayer understates the amount of tax due, the
department shall assess the proper amount and shall determine
the difference between the amount of tax shown in the return and
the amount assessed, such difference being hereafter sometimes
referred to as the "deficiency." Such deficiency shall be paid
to the department within ten days after a notice of the
assessment thereof shall be mailed to the taxpayer by the
department. In such case, if such understatement of the tax in
the return or returns was made in good faith, there shall be no
interest or penalty because of such understatement: Provided,
That the deficiency be paid or notice of an intention to file a
petition for a reassessment or to appear and be heard, as herein
provided, shall be given within ten days after notice of the
assessment of such deficiency be mailed to the taxpayer. If such
payment is not made within ten days and if no notice of an
intention to file a petition for a reassessment or to appear and
be heard is given to the department within ten days, as herein
provided, there shall be added to the amount of the deficiency
five per centum thereof and, in addition, interest at the rate
of one-half of one per centum per month for each month or
fraction thereof from the date of such notice to the date of
payment. If any understatement in any of such returns is false
or fraudulent with intent to evade the tax, the deficiency
resulting from such understatement shall be doubled and, in
addition thereto, an additional one-half of one per centum of
such doubled deficiency shall be added for each such month or
fraction of a month from the date the tax was originally due to
the date of payment.
(c) If the amount of the tax as assessed by the department
shall be less than the amount already paid by the taxpayer, the
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department shall so notify the taxpayer and the amount so
overpaid may be taken by such taxpayer as a credit on the tax
shown as due in any subsequent return or returns filed in
accordance with the provisions of this act.
Section 403. Estimated Assessments.--(a) If any person
believed by the department to be liable for tax under the
provisions of this act shall have failed to file a return in
accordance with and within the time prescribed by this act, and
if the department shall deem it more conducive to the public
interest because of the supposed smallness of the tax or for any
other reason not to proceed to compel the exhibition of the
accounts of such person, it may make an estimated assessment of
the probable amount of tax owing by such person; but in every
such case the department shall add to such estimated assessment
a penalty of fifty per centum (50%) thereof and the department
shall proceed to collect such estimated tax and penalty as in
other cases if the amount is not paid when due.
(b) The estimated assessment thus determined, together with
the penalty of fifty per centum (50%) specified above and
interest at the rate of one-half of one per centum per month or
fractional part thereof until paid, shall be due and payable ten
days after notice of such settlement shall have been mailed by
the department to the person against whom the estimated
assessment has been made.
Section 404. Limitation of Assessments.--(a) Any additional
assessment or estimated assessment shall be made by the
department within five years of the date when the annual return
required by section three hundred four hereof should have been
filed, as prescribed in this act, whether the date originally
prescribed or pursuant to any extensions of the time for filing
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such return duly granted by the department and not after. Any
such additional assessment or estimated assessment may be made
at any time during such period, notwithstanding that the
department may have made one or more previous additional
assessments or estimated assessments or both against the
taxpayer for the year in question or for any part of such year.
In any such case, no credit shall be given for any penalty
previously assessed or paid.
(b) If the taxpayer shall have died, any taxes, interest and
penalties due under this act for years prior to his death or for
the year of his death and whether based on original assessments,
additional or estimated assessments or otherwise, may be
presented by the department at audit of his estate in the
orphans' court. Such court shall give full effect to the
priorities and equitable interest given to the Commonwealth by
this act.
Section 405. Reassessment; Review; Appeal; Refund.--(a) Any
taxpayer against whom an additional or estimated assessment is
made may petition the department for a reassessment. Notice of
an intention to file such a petition or to appear and be heard
shall be given to the department prior to the time the
additional or estimated assessment becomes due and payable. The
department shall hold such hearings as may be necessary for the
purpose, at such times and places as it may determine, and each
taxpayer who has duly notified the department of an intention to
file a petition for reassessment or to appear and be heard shall
be notified by the department of the time when and the place
where such hearing in his case will be held. A petition for
reassessment, if filed, shall set forth explicitly and in detail
the grounds upon which the taxpayer claims that the additional
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or estimated assessment is erroneous or unlawful, in whole or in
part, and shall be accompanied by an affidavit under oath or
affirmation certifying to the facts stated in the petition. If
no petition for reassessment has been filed with the department
but the taxpayer has given due notice of an intention to appear
and be heard, the taxpayer may appear at the hearing and present
his petition orally, in which event all statements of fact at
the hearing shall be made under oath or affirmation.
(b) Within sixty days after the date of mailing of notice by
the department of the action taken on any petition for
reassessment filed with it, the person against whom such
assessment was made may by petition request the Board of Finance
and Revenue to review such action. Every petition for review
filed hereunder shall state specifically the reasons on which
the petitioner relies or shall incorporate by reference the
petition for reassessment in which the reasons are stated. The
petition shall be supported by affidavit that it is not made for
the purpose of delay and that the facts therein set forth are
true. The Board of Finance and Revenue shall act finally in
disposing of petitions filed with it, within six months after
they have been received. In the event of the failure of the
board to dispose of any petition within six months, the action
taken by the department upon the petition for reassessment shall
be sustained. The Board of Finance and Revenue may sustain the
action taken on the petition for reassessment or it may reassess
the tax due on such basis as it deems according to law and
equity. The board shall give notice of its action by mail to the
department and to the petitioner.
(c) Any person or the Commonwealth aggrieved by the decision
of the Board of Finance and Revenue or by the board's failure to
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act upon a petition for review within six months may, within
sixty days, appeal to the Court of Common Pleas of Dauphin
County from the decision of the board or from the decision of
the department, as the case may be, in the manner now or
hereafter provided by law for appeals in the case of tax
settlements.
(d) Refunds of taxes paid under this act shall be made under
the provisions of section five hundred three of the act,
approved the ninth day of April, one thousand nine hundred
twenty-nine (Pamphlet Laws 343), known as "The Fiscal Code" and
its amendments.
Section 406. Rules and Regulations; Inquisitorial Powers of
the Department.--(a) The department shall have the authority to
prescribe, adopt, promulgate and enforce rules and regulations
in conformity with this act and relating to any matter or thing
pertaining to the administration of the taxes imposed by this
act. The department may from time to time alter or amend such
rules and regulations in any manner it considers advisable.
(b) The department or any of its authorized agents is hereby
authorized to examine the books, papers and records of any
taxpayer or supposed taxpayer, including his bank accounts or
similar items, in order to verify the accuracy and completeness
of any return made, or, if no return was made, to ascertain and
assess the tax imposed by this act. The department may require
the preservation of all such books, papers and records for any
period deemed proper by it, not to exceed, however, six years
from the end of the calendar year to which the records relate.
Every such taxpayer is hereby required to give to the department
or its agent the means, facilities and opportunity for such
examinations and investigation. The department is further
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authorized to examine any person under oath concerning taxable
sales by any taxpayer or concerning any other matter relating to
the enforcement or administration of this act; and to this end
may compel the production of books, papers and records and the
attendance of all persons, whether as parties or witnesses, whom
it believes to have knowledge of such matters. The procedure for
such hearings or examinations shall be the same as that provided
by the Fiscal Code relating to inquisitorial powers of fiscal
officers.
(c) Any information gained by the department as a result of
any return, investigation, hearing or verification required or
authorized by this act shall be confidential except for official
purposes and except in accordance with proper judicial order or
as otherwise provided by law; and any person unlawfully
divulging such information shall be deemed guilty of a
misdemeanor and, upon conviction thereof, shall be sentenced to
pay a fine not in excess of one thousand dollars ($1000) and
costs of prosecution, or to undergo imprisonment for not more
than one year, or both, in the discretion of the court.
Notwithstanding the foregoing provisions of this subsection,
the department may permit the Commissioner of Internal Revenue
of the United States, or the proper officer of any other state
now or hereafter imposing a tax upon sales of tangible personal
property or classes of such property, or the authorized
representative of such Commissioner or officer, to inspect any
returns or reports of investigations filed or made under the
provisions of this act, or may furnish to such Commissioner or
officer or his authorized representative an abstract of any such
return, or supply him with information concerning any items
contained in any such return or report; but such permission
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shall be granted or such information furnished to such
Commissioner or officer only if the statutes of the United
States or of such other state, as the case may be, grant equal
privileges to the officers of this Commonwealth charged with the
administration of this act.
Section 407. Records of Non-Residents.--(a) A non-resident
person, including a foreign corporation, who is engaged in one
or more businesses in this Commonwealth as a retail dealer,
shall keep adequate records of such business or businesses and
of the taxes due with respect thereto, which records shall at
all times be retained within this Commonwealth. No taxes
collected from purchasers shall be sent outside the Commonwealth
without the written consent of and in accordance with conditions
prescribed by the department.
(b) Any person who shall violate or assist in the violation
of the provisions of this section shall be guilty of a
misdemeanor and, upon conviction, shall be sentenced to pay a
fine not exceeding one thousand dollars ($1000) and costs of
prosecution, or to undergo imprisonment not exceeding one year,
or both, in the discretion of the court.
Section 408. Tax Held in Trust for the Commonwealth.--All
taxes collected by any retail dealer from purchasers in
accordance with this act shall constitute a trust fund for the
Commonwealth, and such trust shall be enforceable against such
taxpayer, his representatives and any person receiving any part
of such fund without consideration or knowing that the taxpayer
is committing a breach of trust: Provided, however, That any
person receiving payment of a lawful obligation of the taxpayer
from such fund shall be presumed to have received the same in
good faith and without knowledge of the breach of trust. Any
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person, other than a taxpayer, against whom the department makes
any claim under this section, shall have the same rights to
petition and appeal as are given taxpayers by any provisions of
this article.
Section 409. Priority of Tax.--In the distribution,
voluntary or compulsory, in receivership, bankruptcy or
otherwise, of the property or estate of any person, all taxes
imposed by this act which are due and unpaid and are not
collectible under the provisions of section four hundred eight
hereof shall be paid from the first money available for
distribution in priority to all other claims and liens, except
in so far as the laws of the United States may give a prior
claim to the Federal government. Any person charged with the
administration or distribution of any such property or estate
who shall violate the provisions of this section shall be
personally liable for any taxes imposed by this act which are
accrued and unpaid and are chargeable against the person whose
property or estate is being administered or distributed.
Section 410. Lien of Taxes.--All taxes imposed by this act,
together with all penalties and interest, shall be considered a
public account, after being assessed in the manner provided in
this act, and as such shall be a lien upon all real estate
within the Commonwealth of any taxpayer, resident or non-
resident, but only after the same has been entered and docketed
of record by the prothonotary of the county where such real
estate is situated, as hereafter provided.
The department may at any time transmit to the prothonotaries
of the respective counties certified copies of all liens for
taxes imposed by this act and penalties and interest. It shall
be the duty of each prothonotary receiving such lien to enter
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and docket the same of record in his office, which lien shall be
indexed as judgments are now indexed. All such liens shall have
priority to and be fully paid and satisfied out of the judicial
sale of said real estate before any other obligation, judgment,
claim, lien or estate with which said real estate may
subsequently become charged or for which it may subsequently
become liable, subject, however, to mortgage or other liens
existing and duly recorded at the time such tax lien is
recorded, save and except the cost of sale and of the writ upon
which it is made and real estate taxes imposed or assessed upon
said property. The lien of said taxes, interest and penalties
shall continue for five years from the date of entry and may be
revived and continued in the manner now or hereafter provided
for renewal of judgments; and it shall be lawful for a writ of
scire facias to issue and be prosecuted to judgment in the
manner in which such written writs are ordinarily employed.
Any wilful failure of any prothonotary to carry out any duty
imposed upon him by this section shall be a misdemeanor and,
upon conviction, he shall be sentenced to pay a fine not
exceeding one thousand dollars ($1000) and costs of prosecution,
or to undergo imprisonment not exceeding one year, or both, in
the discretion of the court.
ARTICLE V
VIOLATION AND PENALTIES
Section 501. Penalty for Fraudulent Annual Return.--Any
person who shall wilfully make or cause to be made the annual
return required by section three hundred four of this act which
is false and fraudulent shall be guilty of wilful and corrupt
perjury and, upon conviction thereof, shall be subject to
punishment as provided by law. Such penalty shall be in addition
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to all other penalties imposed by any of the preceding
provisions of this act.
Section 502. Other Penalties.--Except as otherwise provided
by section five hundred one, any person who shall wilfully fail,
neglect or refuse to file any return or report required by this
act, or any taxpayer who shall refuse to pay any tax, penalty or
interest imposed or provided for by this act, or who shall
wilfully fail to preserve his books, papers and records as
directed by the department, in accordance with section four
hundred six hereof, or any person who shall refuse to permit the
department or any of its authorized agents to examine his books,
records or papers, or who shall knowingly make any incomplete,
false or fraudulent return or report, or who shall do or attempt
to do anything whatever to prevent the full disclosure of the
amount or character of taxable sales made by himself or any
other person, shall be guilty of a misdemeanor and, upon
conviction, shall be sentenced to pay a fine not exceeding one
thousand dollars ($1000) and costs of prosecution, or undergo
imprisonment not exceeding one year, or both, in the discretion
of the court. The penalties imposed by this section shall be in
addition to any penalties imposed by any provision of this act
other than section five hundred one.
ARTICLE VI
DISPOSITION OF TAX, PENALTIES, INTEREST
Section 601. Disposition of Proceeds.--All taxes collected
under the provisions of this act, together with any penalties
and interest thereon, shall be used for public school purposes,
in so far as permitted by the requirements of the Constitution
of Pennsylvania.
ARTICLE VII
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MISCELLANEOUS
Section 701. Saving Clause.--Nothing contained in this act
shall be construed to repeal any other law of this Commonwealth
imposing any tax for any purpose.
Section 702. Effective Date.--This act shall become
effective on the first day of the second calendar month after
the month in which it is finally enacted; and all taxable sales
during that month and for a period of two years thereafter shall
be subject to tax hereunder. The expiration of the period during
which tax is imposed by this act shall not relieve any person
from the filing of returns or from any taxes, penalties or
interest, imposed by the provisions of this act, or affect or
terminate any petitions, investigations, prosecutions legal or
otherwise, or other proceedings pending under the provisions of
this act, or prevent the commencement or further prosecution of
any proceedings by the proper authorities of the Commonwealth
for violations of such act, or for the assessment, collection or
recovery of taxes, penalties or interest due or owing to the
Commonwealth under this act.]
Section 2. This act shall take effect in 60 days.
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