PA Sales & Use Tax Notes: PEO'S Administrative Service Fee Not Taxable As "Help Supply" Service

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In All Staffing, Inc. v. Commonwealth, 325 F.R. 2006 (December 2, 2010), the Commonwealth Court upheld an earlier panel decision, ruling that administrative services performed by All Staffing, Inc., a professional employer organization ("PEO"), were not subject to Pennsylvania's sales tax as "help supply services."

All Staffing is a PEO, an entity that provides certain human resources-related services ("PEO Services") to clients by placing the clients' employees on its payroll. Although the clients retain control and direction over the day-to-day activities of the employees and make all hiring, firing, wage setting, disciplinary and other personnel decisions, All Staffing performs various PEO Services for its clients, including data processing services, human resources assistance, safety and risk management assistance, and maintenance of workers’ and unemployment compensation accounts. The Commonwealth contended that, because All Staffing places all of a client's employees on its payroll, its business activities fall within the definition of "help supply services," and fees charged for the PEO Services are subject to sales tax. All Staffing argued that the sales tax statute imposes tax on a vendor’s provision of "help" to its customers, and that it does not provide "help" (i.e., personnel) to any of its clients. The Commonwealth Court agreed with All Staffing's position that the PEO Services are not subject to sales tax because All Staffing does not supply new or additional workers to its clients.

The Commonwealth filed a Notice of Appeal to the Pennsylvania Supreme Court on December 30, 2010.

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