The General Assembly made significant changes to a number of Pennsylvania taxes as part of the 2013-2014 budget process. These changes were enacted in Act 52 (available at this link), signed into law on July 9, 2013, and have various effective dates. Below is a summary of some of these changes.
Capital Stock Franchise Tax
Capital stock franchise tax is an annual tax imposed on certain state law entities, including business trusts, limited liability companies, and corporations that do business in Pennsylvania. Importantly, even limited liability companies treated as partnerships or disregarded entities for federal income tax purposes are subject to capital stock franchise tax. If an entity subject to the capital stock franchise tax is a partner, directly or through another state law partnership, in a state law partnership that does business in Pennsylvania, the partner is subject to capital stock franchise tax. This means that if a limited liability company or corporation owns an interest in a partnership that does business in Pennsylvania, the limited liability company or corporation is subject to capital stock franchise tax. The tax base is a formula stock value determined from book net income and book net worth that is allocated and apportioned to Pennsylvania.
The capital stock franchise tax was due to phase out in 2014. Act 52 delayed the phaseout until 2016. The capital stock franchise tax rate for 2013 remains 0.89 mills, for 2014 is 0.67 mills, and for 2015 is 0.45 mills.
By order of magnitude, a limited liability company doing business solely in Pennsylvania that has $1 million of book net income and $10 million of book net worth would owe capital stock franchise tax of approximately $7,900 in 2013, $5,900 in 2014, and $4,000 in 2015. A limited liability company with $3 million of book net income and $35 million of book net worth would owe capital stock franchise tax of approximately $25,600 in 2013, $19,300 in 2014, and $13,000 in 2015.
Corporate Net Income Tax
Elimination of the "Delaware Loophole"
Act 52 intends to close the "Delaware loophole" for tax years beginning after December 31, 2014. Under Act 52, as a general rule, a corporation may not deduct an "intangible expense or cost" or interest expense or cost directly related to an intangible expense or cost (collectively, Intangible Expenses) paid to an affiliate.
A corporate taxpayer that has paid or incurred an Intangible Expense to an affiliate is allowed a credit against its corporate net income tax if the affiliate is subject to tax in Pennsylvania or any other state or possession of the United States on a tax base that includes the Intangible Expense it received from the taxpayer. The credit is equal to the taxpayer's Pennsylvania apportionment factor multiplied by the affiliate's tax liability (without reduction for any tax credit of the affiliate) with respect to the Intangible Expense it received from the taxpayer.
Intangible Expenses are royalties, licenses, or fees paid for the acquisition, use, maintenance, management, ownership, sale, exchange, or other disposition of patents, patent applications, trade names, trademarks, service marks, copyrights, mask works or other similar expenses or costs, and interest expenses related thereto.
An affiliate of the taxpayer generally is a 50 percent or more owner or subsidiary, with attribution rules under Section 318 of the Internal Revenue Code and a component member of a controlled group under Section 1563(b) of the Internal Revenue Code. Also, a taxpayer’s affiliate includes a person to or from whom there is attribution under Section 1563(e) of the Internal Revenue Code. This includes a shareholder of the taxpayer that actually or constructively owns 5 percent or more in value of the taxpayer’s stock. An affiliate may be any person – an individual, partnership, limited liability company, estate, or trust as well as another corporation. Intangible Expenses paid by the taxpayer to an affiliate may be deducted by the taxpayer if:
The transaction giving rise to the Intangible Expense did not have as the principal purpose avoidance of corporate net income tax and was done at arm's-length rates and terms.
The affiliate is domiciled in a foreign country that has in force a comprehensive income tax treaty with the United States providing for allocation of all categories of income subject to taxation, or withholding of tax on royalties, licenses, fees, and interest for the prevention of double taxation and the sharing of information.
The affiliate, directly or indirectly, paid, accrued, or incurred a payment to a nonaffiliate, if such amount is equal to or less than the taxpayer’s proportional share of the transaction with the nonaffiliate.
Market-Based Sourcing for Sales of Services
Pennsylvania uses a single sales factor to apportion income to the Commonwealth for corporate net income tax purposes. Under current law, gross receipts from the sale of services are included in the numerator of the sales factor if a greater proportion of the costs incurred to perform such services (the "costs of performance") were incurred in Pennsylvania than in any other state. Act 52 replaces the costs-of-performance methodology with market-based sourcing.
For tax years beginning after December 31, 2013, gross receipts from the sale of services will be included in the numerator of the sales factor only if the services are delivered to a Pennsylvania location. If services are delivered to locations both within and outside of Pennsylvania, the value of the Pennsylvania services is included in the numerator of the sales factor. If the location to which the services are delivered cannot be determined, the location generally will be deemed to be the place where the customer ordered the services or, if that cannot be determined, the customer's billing address.
This change benefits many Pennsylvania-based service providers by limiting the numerator of the sales factor to gross receipts from services provided to Pennsylvania customers. Service providers with little or no physical connection to Pennsylvania but with Pennsylvania customers may see an increase in their apportionment factor and, therefore, a rise in their corporate net income tax liability. Additionally, because of the variance in state laws, some Pennsylvania-based service providers in some industries may see an increase in corporate net income tax.
Miscellaneous Changes to the Corporate Net Income Tax
Act 52 increases the cap on the annual deduction for net operating losses from the greater of $3 million or 20 percent of Pennsylvania apportioned income to:
The greater of $4 million or 25 percent of Pennsylvania apportioned income for tax years beginning after December 31, 2013, and before January 1, 2015
The greater of $5 million or 30 percent of Pennsylvania apportioned income for tax years beginning after December 31, 2014
Act 52 also creates a new non-filing penalty (effective for tax years beginning after December 31, 2013) imposed on taxable corporations that do not file a corporate net income tax return at the rate of $500, plus 1 percent for tax due in excess of $25,000.
Realty Transfer Tax
Act 52 expands the application of the realty transfer tax in the context of real estate company transactions. Upon a change of 90 percent of the ownership of a real estate company in a three-year period, the real estate company owes realty transfer tax on its Pennsylvania real estate. A real estate company is an entity of which 90 percent or more is owned by 35 or fewer persons and that is primarily engaged in the business of holding, selling, or leasing real estate that derives 60 percent or more of its annual gross receipts from the ownership or disposition of real estate (60 percent Test), or holds real estate, the value of which comprises 90 percent or more of its tangible assets (90 percent Test).
Before Act 52, to analyze if an entity is a real estate company, only Pennsylvania real estate was considered to determine if the entity satisfied the 60 percent Test or the 90 percent Test. After Act 52, all real estate, wherever located, is considered.
Act 52 also expands the definition of real estate company to include upper-tier entities, making the Pennsylvania law similar to the Philadelphia law. Under Act 52, a real estate company also will include not only a company that owns real estate, but also a company 90 percent or more of which is owned by 35 or fewer persons, that owns as 90 percent or more of the fair market value of its assets a direct or indirect interest in a real estate company.
In addition, for purposes of determining if a real estate company has experienced a 90 percent or more change in ownership (and owes realty transfer tax), a legally binding commitment or option to acquire all or part of the interests in the real estate company will be treated as a transfer of an ownership interest.
It is unclear whether the option or binding commitment is treated as a transfer from the date it is executed or from when it is exercised. Preliminary indications are that the Department of Revenue believes that a binding commitment or option will be treated as an immediate transfer, even if the ownership interest never is transferred. Consequently, if this interpretation stands, if the owners of a real estate company sell 89 percent of the company’s interests to a buyer and give the buyer an option to buy the other 11 percent after three years, the transaction would be treated as an immediate transfer of 100 percent of the real estate company. This means the real estate company would owe realty transfer tax on its real estate, even though the sellers still own 11 percent of the real estate company and the option may expire unexercised.
The effective date for all of the real estate company changes is January 1, 2014. As a result, for 89-11 transactions where the 89 percent was sold before January 1, 2014, Act 52 does not change the expected realty transfer tax results.
Under Act 52, the tax treatment of partnership items and S corporation items is determined at the partnership or S corporation level. Also, there are provisions designed to make it easier for the Department of Revenue to collect taxes from certain partnerships and S corporations that understate their income by more than $1 million. These changes apply to tax years beginning after December 31, 2013.
If a partnership covered by these rules underreports its income by more than $1 million in any tax year, the partnership is liable for the tax (but not interest, penalties, or additions) on the underreported income, without regard to the partners’ actual tax liability. The partnership will be required to provide each partner a Pennsylvania K-1 reporting the partner's share of the underreported income within 90 days of the assessment becoming final. Each partner is allowed a credit for the partner's share of the tax paid by the partnership. All reassessments at the partnership level are binding on the partners, and any appeals relating to any alleged underreporting are to be taken only by the partnership. The partners are not relieved of any liability for tax from the underreporting, but each partner will be allowed a credit for such partner's share of the tax assessed for underreporting.
A partnership is covered by these rules if it has partners that are only natural persons and elects to have the partnership level assessment procedure apply, it has 11 or more partners that are natural persons, or it has at least one partner that is an entity or trust. A publicly traded partnership is not subject to these rules.
Similar rules apply to Pennsylvania S corporations that have 11 or more shareholders or that elect to have the S corporation level assessment procedure apply. As is true for partnerships, S corporation shareholders get a credit for their share of the tax paid by the S corporation, assessments made at the S corporation level are binding on the shareholders, and appeals must be taken by the S corporation.
Miscellaneous Personal Income Tax Changes
A Pennsylvania resident taxpayer is entitled to a credit against his or her Pennsylvania income tax for taxes paid to another state, the District of Columbia, Puerto Rico, any territory or possession of the United States, and a foreign country. For tax years beginning after December 31, 2013, no credit will be allowed for taxes paid to a foreign country.
Also, for tax years beginning after December 31, 2013:
Taxpayers may deduct start-up expenses in accordance with Section 195 of the Internal Revenue Code.
A taxpayer must capitalize intangible drilling and development costs and recover them over a 10-year period unless the taxpayer elects to currently expense such costs under Section 263(c) of the Internal Revenue Code. Alternatively, because Pennsylvania does not allow individuals to use net operating losses, a taxpayer may elect to expense one-third of intangible drilling and development costs and recover the remainder over a 10-year period beginning in the year in which the costs are incurred.
Partnerships and S corporations already are required to withhold personal income tax from nonresident partners or shareholders. Act 52 expands the withholding requirement to estates and trusts.
Estates and trusts with resident beneficiaries must file returns in Pennsylvania.
All partnerships, estates, and trusts required to file Pennsylvania returns must file their federal returns with Pennsylvania.
All partnerships, estates, trusts, and S corporations must provide statements to their partners, beneficiaries, or shareholders with their pro rata share of each item of income.
Partnerships must provide to any partner classified as a corporation its apportionment factors.
Every partnership, S corporation, estate, and trust must maintain a list of its owners or beneficiaries. Failure to maintain such list will cause the partnership, S corporation, trust, or estate and the general partner, tax matters partner, corporate officer, or trustee to be liable for tax, interest, and penalty with respect to the entity.
Beginning on July 9, 2013, absent a timely appeal or payment plan, every employer that does not pay, underpays, or fails to file returns for employer withholding tax, interest, or penalty within 90 days after the due date thereof commits a summary offense. Upon conviction, such offenders can be subject to fines, penalties of between $300 and $1,500, and in default thereof, imprisonment for five to 30 days.
Bank Shares Tax
Under current law, only banks that have capital stock in Pennsylvania are subject to the bank shares tax, which is imposed on the value of the capital stock shares. Effective January 1, 2014, Act 52 dramatically expands the taxation of banks by imposing the bank shares tax on banks that are "doing business" in Pennsylvania.
The bank shares tax currently applies to every bank operating as such and having capital stock, every operating company having capital stock and having the powers of companies commonly known as trust companies, every company organized as a bank and trust company under the laws of any jurisdiction that has capital stock owned by a company subject to the bank shares tax, a corporation organized under 12 U.S.C. Ch. 6 (relating to organization of corporations to do foreign banking), and every agency or branch of a foreign depository as defined in 12 U.S.C. Section 3101.
Under Act 52, a bank will be considered to be doing business in Pennsylvania and therefore subject to the bank shares tax if it generates $100,000 or more of gross receipts that are apportionable to Pennsylvania and satisfies any of the following conditions:
A bank is not be considered to be doing business in Pennsylvania merely because the bank uses independent professionals to perform services for the bank in Pennsylvania if such services are not significantly associated with creating a market in Pennsylvania, or the bank uses financial intermediaries in Pennsylvania to process or transfer checks, credit card receivables, commercial paper, or other similar items.
Act 52 also changed the calculation of the bank shares tax. Under prior law, the value of a bank's capital stock shares was calculated using a six-year average; Act 52 replaces this calculation with a one-year valuation formula. Act 52 also replaces a three-factor apportionment percentage (payroll, deposits, and receipts) with a single receipts factor based on receipts from Pennsylvania customers. In addition, Act 52 removes a special appeals procedure for the bank shares tax and includes the bank shares tax in the general Pennsylvania tax appeals process. Finally, Act 52 reduces the bank shares tax rate from 1.25 percent to 0.89 percent.
Act 52 directs the Department of Revenue, working together with the Secretary of Banking and Securities and representatives from the banking industry, to prepare a report within 18 months of July 9, 2013, analyzing the changes to the bank shares tax and proposing changes to the revised bank shares tax (including the rate and apportionment formula) to ensure that Pennsylvania generates a reasonable amount of revenue but remains competitive with other states.
Sales and Use Tax Changes
Remote Seller Report
If federal legislation is enacted authorizing Pennsylvania to collect sales and use tax from remote sellers, Act 52 requires the Independent Fiscal Office to prepare a detailed report summarizing the federal legislation and to submit the report to the General Assembly.
Specifically, the report is to include:
The expected costs to Pennsylvania of implementing remote seller legislation
The expected tax revenue that the legislation could be expected to generate
The funding source for enacting and implementing the legislation
Legal and practical issues associated with collecting tax from remote sellers
The number of states with similar legislation
Proposed draft legislation
A detailed timetable regarding implementation
Interestingly, in late 2011, the Department of Revenue announced that Pennsylvania law required many remote sellers to collect Pennsylvania sales and use tax, and that it intended to require remote sellers to collect tax beginning in February 2012. Act 52 begs the question of whether the Department of Revenue's 2011 announcement went beyond the authority granted by existing law.
Miscellaneous Sales and Use Tax Changes
Act 52 added an exemption from sales and use tax for the sale at retail or use of aircraft parts and services to aircraft and aircraft components effective October 7, 2013. Aircraft eligible for this exemption include fixed-wing aircraft, powered aircraft, tilt-rotor or tilt-wing aircraft, and glider or unmanned aircraft.
To obtain and maintain a sales tax license, a taxpayer must be current on all Pennsylvania taxes. If the Department declines to issue a sale tax license or sends a taxpayer a notice of revocation, the taxpayer must appeal within 30 days of the notice to maintain a timely appeal.
The General Assembly also repealed a rarely used credit (created in 2003) against sales and use tax for gross receipts taxes paid on interstate calls by call centers and telemarketers.
Finally, the General Assembly extended the authorization of the additional 1 percent Philadelphia sales and use tax that was scheduled to expire on June 14, 2014. This means that taxable sales and uses within the City of Philadelphia will remain subject to tax at an aggregate rate of 8 percent until at least December 31, 2017.
Board of Finance and Revenue Reform
A taxpayer that disagrees with an assessment of tax or denial of a refund claim may appeal the assessment or denial by filing a petition with the Department of Revenue Board of Appeals. A taxpayer aggrieved by a Board of Appeals decision may then appeal to the Board of Finance and Revenue (the BF&R). The BF&R currently is comprised of six members, representatives of the State Treasurer (chairman), the Auditor General, the Attorney General, the Secretary of the Commonwealth, the Secretary of Revenue, and the General Counsel to the Governor.
Act 52 brings some welcome reform to the BF&R effective April 1, 2014. The BF&R membership will be replaced by a three-member board, consisting of a representative of the State Treasurer and two members appointed by the Governor and confirmed by the Senate. Such members must be either attorneys or certified public accountants with substantial knowledge of Pennsylvania tax law.
In addition, effective for petitions filed with the BF&R on or after April 1, 2014, and for petitions filed before that date that have not yet been decided, both the taxpayer and the Department of Revenue will be able to present oral and documentary evidence before the BF&R, turning the hearing process into an adversarial process. Finally, the BF&R will be able to order a compromise settlement that is agreed to by the taxpayer and the Department of Revenue.
The reforms represent a much-needed update to the Pennsylvania tax appeals process and should cause fewer taxpayers to appeal to the Commonwealth Court to resolve tax disputes.
Effective for estates of decedents who die on or after July 1, 2013, Act 52 excludes from inheritance tax the transfer of qualified family-owned businesses between members of the same family. Exempt transfers include:
The transfer of all the assets of a business operated as a sole proprietorship if, at the time of the decedent's death, the book value of the assets is less than $5 million, and the business has fewer than 50 full-time employees.
The transfer of an interest in a business entity if, at the time of the decedent's death, the book value of the assets is less than $5 million the business has fewer than 50 full-time employees, is wholly owned by the decedent or the members of the decedent's family, is engaged in a trade or business other than managing investments or income-producing assets, and has been in existence for at least five years.
To be eligible for the exemption, a family member must continue to operate the business for seven years following the decedent's death. Failure to do so results in the imposition of the inheritance tax that would have been paid, plus interest accrued from the date of the decedent's death. To enforce this provision, the transferee must annually certify that he or she is continuing to operate the business and is required to notify the Department of Revenue of any subsequent transfer. The tax becomes due on the date of a transfer that causes the transferee to fail to operate the business as required by Act 52.
Pennsylvania Tax Credits
Finally, Act 52 updates and adds several credit and incentive programs offered to Pennsylvania taxpayers, including:
Film Tax Credit: Effective for tax years beginning after December 31, 2013, film production companies entitled to the Pennsylvania Film Tax Credit must, as a condition of the credit, withhold personal income tax from payments to pass-through entities that represent individual talent. Additionally, taxpayers may begin to earn credits before the first actual day of photography if approved by the Pennsylvania Film Office. The Pennsylvania Film Office also is authorized to consider more flexible criteria to determine whether a project is entitled to the film tax credit. Finally, film tax credits purchased or assigned in 2013 may be carried forward to 2014 and film tax credits purchased or assigned in 2014 may be carried forward to 2015.
City Revitalization and Improvement Zones (CRIZs): Act 52 establishes the CRIZ program designed to promote economic development in cities of the third class. Between July 9, 2013, and December 31, 2016, the Department of Community and Economic Development (DCED) may establish two CRIZs in cities of the third class, allowing for abatement of several Pennsylvania and local taxes within the CRIZ. After 2016, DCED may approve two additional CRIZs per year. Among the many Pennsylvania cities of the third class are Allentown, Altoona, Harrisburg, Reading, Wilkes-Barre, and York.
Innovate in PA Tax Credit: The General Assembly created the Innovate in PA Tax Credit Program, designed to provide funding for the Ben Franklin Technology Partners, the PA Venture Capital Investment Program, and Life Sciences Greenhouses. Beginning on October 1, 2013, insurance companies can purchase up to $100 million of credits from DCED to offset insurance premiums taxes to be used for tax years beginning on or after January 1, 2016. The funds from the purchases of these credits will be used by DCED to support the three venture capital programs.
Mobile Telecommunications Broadband Investment Tax Credit: Act 52 creates a new tax credit for tax years beginning after December 31, 2013, and before January 1, 2024, (capped at $5 million per year) equal to 5 percent of the cost of investment in qualified broadband equipment located in Pennsylvania.