Pennsylvania Tax Changes and Tax Amnesty Program

by Ballard Spahr LLP

Ballard Spahr LLP

As part of the budget package, the Pennsylvania General Assembly made many significant changes to various Pennsylvania tax laws and the unclaimed property law (including a tax amnesty program) that are estimated to generate $752 million of additional revenue for the Commonwealth.

Tax Amnesty Program

The new law requires the Department of Revenue to administer a 60-day tax amnesty program ending no later than June 30, 2017. Amnesty will be available only to taxpayers who did not participate in the Commonwealth's 2010 tax amnesty program and will not be available to taxpayers who are on notice that they are the subject of a criminal investigation or have been named a defendant in a criminal complaint alleging a violation of tax laws. The program will apply to all taxes administered by the Department—including sales tax collection and employment tax withholding obligations—for which a taxpayer was delinquent as of December 31, 2015.

Eligible taxpayers may participate in the program by filing a tax amnesty return, paying the tax and 50 percent of the interest, and filing completed new and/or amended returns for each year of delinquency. In exchange, the Department will waive 50 percent of the interest and all of the penalties that otherwise would be imposed on the delinquent taxes. Additionally, eligible taxpayers with "unknown" tax liabilities—i.e., liabilities for which the taxpayer has not been contacted by the Department regarding unfiled returns and which are not currently under audit—will not be liable for any delinquent taxes of the same type that were due before January 1, 2011. If a taxpayer seeks to participate in the program for a liability that is subject to a deferred payment plan, as a condition for amnesty, the taxpayer must agree to pay the full tax amount by the end of the amnesty period.

Participation in the amnesty program is contingent on continued compliance with Pennsylvania tax obligations. Specifically, if, within two years from the end date of the program, unless a valid appeal is pending, a taxpayer becomes delinquent for three consecutive periods for semi-monthly, monthly, quarterly, or other periodic tax liabilities, or becomes eight months or more delinquent for filing or paying any annual tax liabilities, the Department can collect all penalties and interest waived pursuant to the amnesty program. Following an unsuccessful appeal, a taxpayer must pay the liabilities within applicable time limits to avoid becoming delinquent and liable for the waived penalties and interest. As was true of the 2010 amnesty program, participation in the program will waive any right to participate in any future amnesty program.

The Department is tasked with promulgating guidelines detailing the program and procedures by September 11, 2016.

Sales and Use Tax Changes

The new law subjects digital delivery (including streaming) of games, music, movies, and apps, among other digital products, to sales and use tax effective August 1, 2016, giving vendors very little time to prepare. Specially, the new law provides that "tangible personal property" subject to tax includes "video; photographs; books; any otherwise taxable printed matter; applications, commonly known as apps; games; music; any other audio, including satellite radio service; canned software, notwithstanding the function performed; or any other tangible personal property electronically delivered, streamed, or accessed."

Notably, in addition to subjecting digital products to tax and expressly adding canned software to the list of taxable products (which software was subject to tax by virtue of a 2010 Pennsylvania Supreme Court decision, Dechert LLP v. Commonwealth), the new law provides that updates, maintenance and support of these digital products are subject to tax. Although it was not expressly part of the Dechert holding, the Court indicated that maintenance and support for canned software likely were exempt from tax.

Other sales and use tax changes include:

  • A reduction in the vendor discount for vendors who timely report and pay tax. Prior to the new law, all vendors who reported and paid timely were entitled to a 1 percent discount. Effective for sales tax returns due after August 1, 2016, the new law caps the discount at the lesser of 1 percent or $25 per return for monthly filers, $75 per return for quarterly filers, and $150 per return for semi-annual filers, all capped at $300 annually. It is possible that some vendors may argue that this severely reduced cap violates the Uniformity Clause of the Pennsylvania Constitution;
  • The addition of criminal penalties for vendors who use "zappers" or devices/software programs that suppress sales and use tax with the intent to evade tax; and
  • The addition of exclusions from sales and use tax for returnable corrugated boxes used to deliver snack foods, services related to the setup, teardown, or maintenance of certain tangible personal property at the Pennsylvania Convention Center in Philadelphia or at a convention center or public auditorium established under the Second Class County Code (i.e., the David L. Lawrence Convention Center in Pittsburgh), or the County Code (e.g., the Lancaster County Convention Center and the Bayfront Convention Center in Erie), and property and services used directly in timbering operations.

Corporate Net Income Tax Changes

Before the new law, Pennsylvania corporate net income tax (CNIT) law did not provide for amended returns. By regulation, taxpayers could file amended returns but there was no requirement that the Department process such returns. Additionally, confusion and missed deadlines arose when taxpayers filed amended returns claiming refunds rather than filing formal refund claims with the Board of Appeals. The new law attempts to address these issues by requiring the Department to act on amended returns; providing that if there is no action by the Department within one year from filing (a period that can be extended to two years with mutual consent), the return is deemed accepted; and allowing a taxpayer to appeal to the Board of Appeals if it disagrees with the Department's action on an amended return. However, it is important to note when considering whether to file an amended return that, when a taxpayer files an amended return, the statute of limitations for the Department to assess tax with respect to the entire return (not just the item or items causing the taxpayer to file an amended return) is extended to the later of one year from the date of the filing of the amended report, or three years from the filing of the original return. Thus, if an amended return is filed near the end of the limitations period for the Department to assess CNIT, an amended return could give the Department a substantial amount of additional time to review the entire tax year and assess additional CNIT. As under prior law, the taxpayer may consent to an additional extension of the statute.

Importantly, an amended return may not be filed:

  • in lieu of a timely appeal of an assessment "except if a taxpayer would be entitled to an adjustment of the taxpayer's tax liability as defined by the regulations of the department;"
  • if the issue giving rise to the amendment has been addressed on its merits by an administrative tribunal or court;
  • or if the amended return "takes a position that is contrary to law or published department policy."

The last exception is particularly troubling because it leaves open the possibility that the Department could argue that an amended return is contrary to its policy and therefore not subject to the requirement that the Department act within one year. Therefore, taxpayers still should consider filing refund petitions with the Board of Appeals rather than amended returns.

The new law also clarifies CNIT return filing dates by providing that all CNIT returns are due 30 days after the federal return is due (or would be due if the corporation is not required to file a federal return). Prior to this change, the statute provided that all returns were due on April 15 unless there was a valid federal extension. This change addresses a federal change effective for the 2016 tax year establishing April 15 (instead of March 15) as the due date for federal income tax returns filed by calendar year corporate taxpayers, and ensures consistent treatment for non-calendar year taxpayers that do not file a federal extension.

Changes to Unclaimed Property Law

Under the new law, subject to certain conditions, the Treasurer can require unredeemed and unclaimed U.S. Savings Bonds issued to Pennsylvania residents to be escheated to the Commonwealth if the bonds are more than three years beyond the date of final maturity and the owner has not indicated an interest in such bond.

Additionally, the new law provides new details regarding escheatment of property held by a fiduciary or agent-in-fact, including 401(k) accounts and individual retirement accounts (IRAs). Such property now is presumed abandoned and unclaimed three years after the holder has lost contact with the owner (as now defined in great detail in the unclaimed property law) unless the owner has, within that period increased or decreased the principal amount in the account, accepted a distribution or other payment of principal or income; or otherwise indicated an interest in the property or in other property of the owner in the custody of the holder.

Finally, the new law provides detailed instructions to holders for determining the specific date on which a holder has "lost contact" with a property owner for purposes of the unclaimed property law and establishes new, very detailed, notification requirements for the holder of the property to send to the owner prior to reporting the property to the Commonwealth as unclaimed.

Bank Shares Tax

  • The new law raises the bank shares tax rate to 0.95 percent from 0.89 percent effective January 1, 2017;
  • Effective for years beginning after December 31, 2016, the new law eliminates the $100,000 gross receipts threshold in the statutory definition of "doing business in this Commonwealth;"
  • The new law allows a phased-in exemption from the tax base for subsidiaries formed under the federal Edge Act to conduct international business;
  • The bank shares tax apportionment rules allow banks to apportion receipts from investments and trading using either Method 1 (the fraction of other receipts that are sourced to Pennsylvania) or Method 2 (the fraction of investment and trading assets that are in Pennsylvania). The new law reverses a published position of the Department and makes clear that all banks—even those with receipts from both investment and trading assets—may elect to use Method 1; and
  • The new law also changes the bank shares tax base by clarifying that the goodwill deduction applies to both the bank shares tax base and the deduction for U.S. obligations, and changing the definition of "total receipts" used in an institutions apportionment denominator to include all receipts reported on the bank's call sheet; previously, the factor was calculated on a separate company basis.

New Credit/Incentive Programs and Changes to Existing Programs

The new law creates several new tax credit programs (to be administered by the Department of Community and Economic Development) beginning July 1, 2017: Manufacturing Tax Credit; Computer Data Center Equipment Incentive Program, Rural Jobs and Investment Tax Credit; Concert and Rehearsal Tour Tax Credit; Video Game Production Tax Credit; Coal Refuse Energy and Reclamation Tax Credit; Waterfront Development Tax Credit; and Mixed Use Tax Credit.

In addition to the new credits, the new law:

  • retroactively extends the Research and Development Tax Credit, which had expired on December 31, 2015;
  • re-establishes the Brewer's Tax Credit effective June 30, 2017;
  • expands the Tax Credit for New Jobs to provide enhanced benefits when a taxpayer hires a veteran; and
  • increases the Film Tax Credit cap and provides that post-production expenses can qualify as qualifying expenditures for purposes of determining the credit amount.

The new law also makes changes to several of the special economic development zone programs. Of note, the new law authorizes the creation of 12 additional Keystone Opportunity Expansion Zones. It provides that tax benefits to parcels within certain existing Keystone Opportunity Zones, Keystone Opportunity Expansion Zones, or Keystone Opportunity Innovation Zones can be extended for an additional 10 years if (among other requirements) the extension application reflects a commitment to create at least 350 new jobs in Pennsylvania and to make a capital investment in Pennsylvania of at least $35 million within three years of receiving the extension.

Other Notable Changes

  • Effective 60 days after the Department issues notices clarifying the procedures for collection, the new law expands the tax on tobacco products by increasing the tax on cigarettes to $2.60 per pack (an increase of $1), imposing a 40 percent tax on the wholesale price of electronic cigarettes, and imposing a 55-cent tax on several other types of tobacco products.
  • Retroactive to January 1, 2016, the new law provides that Pennsylvania Lottery winnings are subject to personal income tax and personal income tax withholding at the time of payment.
  • Effective September 11, 2016, the new law creates new exclusions from realty transfer tax for:
    • Transfers of certain agricultural conservation easements;
    • Transfers under the "Conservation and Preservation Easements Act;"
    • Transfers of certain perpetual easements to federal, state, or local governments or to conservancies;
    • Transfers to veterans' organizations; and
    • Transfers to land banks.
  • Effective August 1, 2016, the Table Games Tax rate is increased from 12 percent to 14 percent.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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