[Adopted 4-15-1999 by Ord. No. 99-7]
A.
Whereas, the General Assembly of the Commonwealth of
Pennsylvania enacted the Local Taxpayers' Bill of Rights (the LTBRA) within
the provisions of Act 50 of 1998; and
B.
Whereas, the Local Taxpayers' Bill of Rights requires
political subdivisions levying certain local taxes ("eligible taxes"), as
that term is defined in the LTBR, to adopt rules and regulations for practice,
procedure and administration in the audit, assessment, appeal, determination
and collection of eligible taxes; and
C.
Whereas, the Township of Hempfield levies certain taxes
which qualify as eligible taxes under the LTBR; and
D.
Whereas, in order to comply with the requirements of
the Local Taxpayers' Bill of Rights, the governing body of this political
subdivision desires to adopt rules and regulations for practice and procedure
implementing the LTBR, a Notice to Taxpayers, a Disclosure Statement and administrative
appeal procedures relating to taxpayer petitions.
E.
Now, therefore, be it enacted and ordained by the Board
of Supervisors of the Township of Hempfield as follows.
The rules and regulations attached hereto as Exhibit A and incorporated
herein[1] are hereby approved and adopted.
The Disclosure Statement attached hereto as Exhibit B and incorporated
herein is hereby approved and adopted.[1]
[1]
Editor's Note: Said exhibit is on file in Township offices.
The form of Petition for Appeal and Refund attached hereto as Exhibit
C and incorporated herein is hereby approved and adopted.[1]
[1]
Editor's Note: Said exhibit is on file in Township offices.
A.
The Governing Body hereby determines that administrative
appeal procedures relating to petitions for appeal and refund submitted by
taxpayers in connection with the assessment, determination or refund of an
eligible tax under the LTBR shall be undertaken by a Hearing Officer.
B.
The Board of Supervisors of the Township of Hempfield
shall, from time to time by resolution, appoint a Hearing Officer or officers
or alternates thereto to undertake the hearings and procedures required under
the LTBR.
The administrative appeal procedures set forth in the rules and regulations
and attached hereto as Exhibit D and incorporated herein are hereby approved
and adopted.[1]
[1]
Editor's Note: Said exhibit is on file in Township offices.
This article shall become effective in accordance with the provisions
of law and shall be applicable to eligible taxes as of January 1, 1999.
A.
The Local Taxpayers' Bill of Rights requires the adoption
of regulations concerning the form and content of petitions, as well as practices
and procedures for tax appeal petitions. This document[1] contains those regulations required by the bill of rights. In
addition, the Township of Hempfield has published a disclosure statement[2] as required by the bill of rights.
B.
Definitions. As used in this section, the following terms
shall have the meanings indicated:
- ASSESSMENT
- The determination by the Tax Administrator of the amount of underpayment by a taxpayer.
- ELIGIBLE TAX
- Any of the following taxes specified within the term "eligible tax" under the Local Taxpayers' Bill of Rights, including interest and penalties provided by law, when levied by the Board of Supervisors of the Township of Hempfield, but specifically not including any real estate tax:
- (1) Any tax authorized or permitted under the Act of December 31, 1965 (P.L. 1257, No. 511), known as the Local Tax Enabling Act or Act 511;
- (2) Any per capita tax;
- (3) Any occupation, occupation assessment or occupation privilege tax;
- (4) Any tax levied on income;
- (5) Any tax measured by gross receipts;
- (6) Any tax on a privilege;
- (7) Any tax on amusements or admissions; and
- (8) Any tax on earned income and net profits.
- HEARING OFFICER
- The Hearing Officer appointed by the Board of Supervisors of Hempfield Township to hear administrative appeals regarding an eligible tax.
- LOCAL GOVERNMENT
- Hempfield Township, Westmoreland County, Pennsylvania.
- LOCAL TAXPAYERS' BILL OF RIGHTS
- Subchapter C of Act 50 of 1998 of the Pennsylvania General Assembly, 53 Pa.C.S.A. §§ 8421-8428 (hereinafter referred to as LTBR).
- OVERPAYMENT
- Any payment of tax which is determined, in the manner provided by law, not to be legally due.
- PETITION
- The petition for appeal and refund as described herein.
- TAX ADMINISTRATOR
- The employee, agent, appointed tax collector, elected tax collector, tax collection agency or other person to whom the Board of Supervisors of Hempfield Township has assigned or delegated responsibility for the audits, assessment, determination or administration of an eligible tax. Under the Local Taxpayer's Bill of Rights, this Tax Administrator is also referred to and defined as the "local taxing authority."
- TAXPAYER
- An individual, partnership, association, corporation, limited liability company, estate, trust, trustee, fiduciary or any other entity subject to or claiming exemption from any eligible tax or under a duty to perform an act for itself or for another under or pursuant to the authority of an eligible tax levied by the local government.
- UNDERPAYMENT
- The amount or portion of any eligible tax determined to be legally due in the manner provided by law for which payment or remittance has not been made.
- VOLUNTARY PAYMENT
- A payment of an eligible tax made pursuant to the free will of the taxpayer. The term does not include a payment made as a result of distraint or levy or pursuant to a legal proceeding in which the Tax Administrator is seeking to collect its delinquent eligible taxes or file a claim therefor.
C.
Section 101. Requirements for requests for taxpayer information.
(1)
Minimum time periods for taxpayer response:
(a)
The taxpayer shall have at least 30 calendar days from
the mailing date to respond to requests for information by the Tax Administrator.
The Tax Administrator shall grant a reasonable extension upon written application
explaining the reason(s) necessitating the extension, which must amount to
good cause. If the Tax Administrator denies a request for extension, the Tax
Administrator must inform the taxpayer in writing of the basis for the denial
and that the taxpayer must immediately provide the requested information.
If the Tax Administrator grants an extension request, he must notify the taxpayer
in writing of the amount of extension granted. Generally, an extension will
not exceed 30 calendar days in length, and may be less, depending on the circumstances.
(b)
The Tax Administrator shall notify the taxpayer of the
procedures to obtain an extension in its initial request for information.
(c)
The Tax Administrator shall take no lawful action against
a taxpayer for the tax year in question until the expiration of the applicable
response period for submission of the information requested, including extensions.
For example, the Tax Administrator may not engage in any collection efforts
until after expiration of the response period. After expiration of the response
period, the Tax Administrator may engage in collection efforts permitted by
law and set forth herein.
(2)
Requests for prior year tax returns:
(a)
Except as provided in Subsection C(2)(b) below, an initial inquiry by the Tax Administrator regarding a taxpayer's compliance with any eligible tax may include taxes required to be paid or tax returns required to be filed no more than three years prior to the mailing date of the notice.
(b)
The Tax Administrator may make an additional subsequent
request for a tax return or supporting information if, after the initial request,
the Tax Administrator determines that the taxpayer failed to file a tax return,
underreported income or failed to pay a tax for one or more of the tax periods
covered by the initial request. Generally, however, the Tax Administrator
should not make routine requests for additional prior year returns.
(c)
Notwithstanding the foregoing, the limitations in Subsection C(2)(b) above on subsequent requests for prior years returns shall not apply if the Tax Administrator has sufficient information to indicate that the taxpayer failed to file a required return or to pay an eligible tax which was due more than three years prior to the date of the notice. Thus, in situations involving failure to file a required return or to pay a required eligible tax, the Tax Administrator shall, in his discretion, have the ability to request prior year returns due more than three years prior and supporting information.
(3)
Use of federal or state tax information. The Tax Administrator
may require a taxpayer to provide copies of the taxpayer's federal individual
income tax return if the Tax Administrator can demonstrate that the federal
tax information is reasonably necessary for the enforcement or collection
of tax and the information is not available from other available sources or
the Pennsylvania Department of Revenue. The Tax Administrator may also require
a taxpayer to provide copies of the taxpayer's state individual income tax
return.
D.
Section 102. Notice of basis of underpayment. The Tax
Administrator must notify the taxpayer in writing of the basis for any underpayment
that the Tax Administrator has determined to exist with respect to any eligible
tax. The purpose of this notification is for the taxpayer to understand the
exact reason why the Tax Administrator believes an underpayment exists. This
notification from the Tax Administrator shall be written in a manner calculated
to be understood by an average person. The notification must include:
(1)
The tax period or periods (usually measured in calendar
years) for which the underpayment is asserted.
(2)
The amount of the alleged underpayment of the eligible
tax detailed by tax period.
(3)
The legal basis (including any statutory or case law
citations) upon which the Tax Administrator has relied to determine that an
underpayment of an eligible tax exists.
(4)
An itemization of the changes made by the Tax Administrator
to a return or report filed by the taxpayer that results in the determination
that an underpayment exists. A copy of any revised return or report in the
Tax Administrator's file must be provided to the taxpayer.
E.
Section 103. Petitions for appeals of assessments or
refunds of taxes paid.
(1)
Filing of petitions. A taxpayer has the legal right to
challenge an assessment or denial of a refund claim under the LTBR. However,
a taxpayer has a right to one appeal only. If a taxpayer loses an assessment
appeal, the taxpayer is not entitled to a second refund appeal after paying
the tax. In addition, no administrative appeals are provided for other decisions,
including but not limited to the denial of an extension of time to provide
information or the modification or termination of an installment agreement.
(2)
The LTBR requires political subdivisions to establish
appeals procedures. In order to begin the appeals process, the taxpayer must
file a complete and timely petition (the "petition"). A petition is "timely
filed" if the letter transmitting the petition is postmarked by the United
States Postal Service or actually received on or before the final day on which
the petition is due. Receipts from carriers other than the United States Postal
Service are not accepted as proof of timely filing. Deadlines for filing a
petition are as follows:
(a)
Petitions challenging the denial of a refund shall be
filed within three years after the due date for filing the report or return
as extended or one year after actual payment of the tax, whichever is later.
If no report or return is required, the petition shall be filed within three
years after the due date for payment of the eligible tax or within one year
after actual payment, whichever is later.
(b)
Petitions for reassessment of tax shall be filed within
90 days of the date of the assessment notice which has been sent to the taxpayer
by the Tax Administrator.
(3)
The Tax Administrator shall make available a form of
petition for appeal and refund.
(4)
Contents. Any petition filed under Subsection E(2)(a) shall 1) state the legal basis for claiming the refund or disagreeing with the Tax Administrator's assessment; 2) state the tax period or periods (i.e., years) to which it pertains; 3) state the amount of the claim and the type of eligible tax detailed by tax period; 4) include all supporting documentation and calculations; 5) provide the name, address and telephone number of the taxpayer's representative, if any; 6) include a statement certifying that the facts in the petition are true and correct, under penalty of perjury, and that the petition is not filed for purposes of delay; and 7) include such other information (essentially identification) as is reasonably requested by the Tax Administrator on the petition for appeal and refund provided to the taxpayer.
(5)
Hearing/appeal on record. The taxpayer shall have the
right to request a hearing in person or based on the petition and record (including
information on file and information submitted by taxpayer). A hearing based
only on the petition and record will not include any in-person hearing or
oral arguments. The Hearing Officer shall have the right to deny an oral hearing
and/or oral argument where the taxpayer has submitted an incomplete petition
or where the Hearing Officer has determined that the appeal is frivolous,
undertaken only for purpose of delay or otherwise without merit. If an oral
hearing is denied, the Hearing Officer shall notify the taxpayer in writing
of the denial and the basis for the denial.
F.
Section 104. Hearing Officer. A Hearing Officer shall
be appointed by the Board of Supervisors of Hempfield Township. Multiple hearing
officers and/or alternates may also be appointed.
(1)
Any taxpayer filing a petition under Section 103[3] shall be entitled to a hearing and decision by the Hearing Officer
subject to a request for hearing and the failure to deny the request for hearing.
Decisions on petitions shall be issued within 60 days of the date a complete
and accurate petition is received. If the Hearing Officer does not act within
60 days, the petition shall be deemed approved.
(2)
Any person aggrieved by a decision under this Section
104 who has a direct interest in the decision shall have the right to appeal
to the Court of Common Pleas of the County of Westmoreland vested with the
jurisdiction of local tax appeals by or pursuant to 42 Pa.C.S.A. § 5571(b).
(3)
Decisions by the Hearing Officer shall be made according
to principles of law and equity.
G.
Section 105. Conduct of hearings.
(1)
A taxpayer may or may not choose to be represented by
a taxpayer representative. The taxpayer representative may be a lawyer, certified
public accountant, accountant or other tax advisory possessing appropriate
tax training to represent taxpayers in tax appeals. The taxpayer must submit
a written authorization to use a taxpayer representative. However, a simple
letter signed by a taxpayer authorizing representation will be accepted as
authorization. Such authorization shall include the representative's name,
address, and telephone number.
(2)
Copies of notices or communications may be sent by the
Tax Administrator or other representative of the political subdivision to
the taxpayer's representative. However, the original notice or communications
will always be sent directly to the taxpayer. Action taken by the taxpayer's
authorized representative (for example, requesting an extension of time or
submitting factual information) shall have the same force or effect as if
taken directly by the taxpayer.
(3)
Reasonable notice of the hearing date will be provided
to the taxpayer by the Hearing Officer. This notice shall provide the date,
time, and place of a hearing.
(4)
The Hearing Officer may grant a taxpayer's written request
for a continuance of a hearing. A request for continuance shall be granted
only if supported by written reasons and for good cause. A request for continuance
must be received at least five days before the scheduled hearing date.
(5)
The Hearing Officer shall preside and keep order over
any scheduled hearing. Hearings need not adhere to any technical rules of
evidence, but oral testimony shall be taken under oath or affirmation. At
the discretion of the Hearing Officer, depositions or affidavits may be used
in lieu of oral testimony.
(6)
The Hearing Officer shall have the authority to make
the following actions:
(a)
Delegate the hearing schedule to an employee, agent or
other designee;
(b)
Regulate the conduct of hearings, including but not limited
to scheduling, timing, recesses, reconvening, adjournment, and any other acts
necessary for the efficient conduct of a hearing;
(c)
Administer oaths and affirmations;
(d)
Receive evidence;
(e)
Permit reasonable examination and cross-examination of
witnesses; and
(f)
Require the production of written evidence such as books,
records, documents, and any other pertinent information.
(7)
The Hearing Officer's final decision shall be in writing
and signed by the Hearing Officer. The final decision shall be mailed to the
taxpayer, with a copy also mailed to the taxpayer's authorized representative
(if any).
H.
Section 106. Refunds.
(1)
A taxpayer who has paid an eligible tax may file a written
request for refund or credit. A request for refund shall be made within three
years of the due date, as extended, for filing the report or tax return or
one year after actual payment of the tax, whichever is later. If no report
is required, the request shall be made within three years after the due date
for payment of the tax or within one year after actual payment of the tax,
whichever is later.
(2)
A tax return filed by the taxpayer showing an overpayment
shall be deemed to be a written request for a cash refund unless otherwise
indicated on the tax return.
(4)
For amounts paid as a result of a notice asserting or
informing a taxpayer of an underpayment, a written request for refund shall
be filed within one year of the date of payment.
I.
Disclosure statement and taxpayer notice.
(1)
Any taxpayer contacted by the Tax Administrator regarding
the assessment, audit, determination, review or collection of an eligible
tax will receive a taxpayer notice. The notice shall be incorporated into
any other correspondence sent to a taxpayer by the Tax Administrator regarding
the assessment, audit, determination, review or collection of tax. The notice
shall be substantially in the following form:
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"You are entitled to receive a Disclosure Statement that sets forth
a written explanation of your rights with regard to the assessment, audit,
determination, review, appeal, enforcement, refund, and collection of local
taxes by calling the Office of the Secretary/Treasurer of the Hempfield Township
Board of Supervisors at 724-834-7232 during the hours of 9:00 a.m. to 4:00
p.m. on any weekday other than a holiday.
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"You may request a copy in person, by telephone or by mailing a request
to the following address: Secretary/Treasurer, Hempfield Township Board of
Supervisors, R.D. 6, Box 500, Woodward Drive, Greensburg, Westmoreland County,
Pennsylvania 15601."
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(2)
The Disclosure Statement will be made available to taxpayers
upon request at no charge to the taxpayer, including mailing costs. In general,
the Tax Administrator will make reasonable efforts to supply all taxpayers
with a copy of the Disclosure Statement.
J.
Interest on overpayment.
(1)
General rule. All overpayments of an eligible tax made
to the local government shall bear simple interest from the date of overpayment
of such eligible tax under the date of resolution.
(2)
Interest rate. Interest on overpayments shall be paid
at the same rate as the Commonwealth of Pennsylvania is required to pay pursuant
to Section 806.1 of the Act of April 9, 1929 (P.L. 343, No. 176), known as
the Fiscal Code (72 P.S. § 1 et seq.) As of December 1998, this
interest rate is 9% annually (.00247% daily).
(3)
Exceptions to payments of interest:
(a)
No interest shall be paid if an overpayment is refunded
or applied against any other eligible tax, interest or penalty due to the
local government within 75 days after the last date prescribed for filing
the report or tax return of the tax liability or within 75 days after the
date the return or report of the liability due is filed, whichever is later.
(b)
Interest is not required to be paid on taxpayer overpayments
of interest or penalty(ies).
(4)
Acceptance of refund check. The taxpayer's acceptance
of a refund check from the Tax Administrator or political subdivision shall
not prejudice any right of the taxpayer to claim any additional overpayment
and interest thereon. Tender of a refund check by the local government shall
be deemed to be acceptance of the check by the taxpayer for purposes of this
Subsection 108(d).
(5)
Definitions. As used in this Section 108, the following words and phrases shall have the meanings given to them in this subsection (5):
- DATE OF OVERPAYMENT
- The later of the date paid or the date the tax is deemed to have been overpaid as follows:
- (a) Any tax actually deducted and withheld at the source shall be deemed to have been overpaid on the last day for filing the report for the tax period, determined without regard to any extension of time for filing.
- (b) Any amount overpaid as estimated tax for the tax period shall be deemed to have been overpaid on the last day for filing the final report for the tax period, determined without regard to any extension of time for filing.
- (c) An overpayment made before the last day prescribed for payment shall be deemed to have been paid on the last day.
- (d) Any amount claimed to be overpaid with respect to which a lawful administrative review or appellate procedure is initialed shall be deemed to have been overpaid 60 days following the date of initiation of the review or procedure.
- (e) Any amount shown not to be due on an amended income or earned income and net profits tax return shall be deemed to have been overpaid 60 days following the date of filing of the amended income tax return.
- DATE OF RESOLUTION
- The date the overpayment is refunded or credited as follows:
- (a) For a cash refund, a date preceding the date of the refund check by not more than 30 days.
- (b) For a credit for an overpayment:
- [1] The date of the Tax Administrator's notice to the taxpayer of the determination of the credit; or
- [2] The due date for payment of the eligible tax against which the credit is applied, whichever first occurs. For a cash refund of a previously determined credit, interest shall be paid on the amount of the credit from a date 90 days after the filing of a request to convert the credit to a cash refund to a date preceding the date of the refund check by not more than 30 days, whether or not the refund check is accepted by the taxpayer after tender.
- [1]
K.
Section 109. Abatement of certain interest and penalty.
(1)
Errors and delays. The purpose of this provision is to
provide, in the discretion of the Tax Administrator, a mechanism to abate
(i.e., reduce) interest and/or penalties where an underpayment is the result
of an error or delay in performance by a representative of the Tax Administrator.
Accordingly, in the case of any underpayment, the Tax Administrator, in its
discretion, may offer to abate all or any part of the interest relating to
an eligible tax for any period for any one or all of the following reasons:
(a)
Any underpayment of an eligible tax finally determined
to be due which is attributable in whole or in part to any error or delay
by the Tax Administrator in the performance of a ministerial act. For purposes
of this paragraph, an error or delay shall be taken into account only if no
significant aspect of the error or delay can be attributed to the taxpayer
and after the Tax Administrator has contacted the taxpayer in writing with
respect to the underpayment of tax finally determined to be due or payable.
(b)
Any payment of an eligible tax to the extent that any
error or delay in the payment is attributable to an officer, employee or agent
of the Tax Administrator being erroneous or dilatory in performance of a ministerial
act.
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The Tax Administrator shall determine what constitutes "timely performance of ministerial acts" performed under this Subsection K(1).
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(2)
Abatement of any penalty or excess interest due to erroneous
written advice by the Tax Administrator. The Tax Administrator shall abate
any portion of any penalty or excess interest attributable to erroneous advice
furnished to the taxpayer in writing by an officer, employee or agent of the
Tax Administrator acting in the officer's, employee's or agent's official
capacity, if:
(a)
The written advice was reasonably relied upon by the
taxpayer and was in response to a specific written request of the taxpayer;
and
(b)
The portion of the penalty or addition to tax or excess
interest did not result from a failure by the taxpayer to provide adequate
or accurate information to the Tax Administrator.
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Notwithstanding the foregoing, it shall be in the sole discretion of
the Tax Administrator whether or not to provide written tax advice to a taxpayer.
Taxpayers shall not have any right to compel the Tax Administrator to provide
written tax advice.
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M.
Section 111. Installment agreements. The Tax Administrator
has the discretion to enter into written agreements with any taxpayer under
which the taxpayer is allowed to satisfy liability for tax in installment
payments, if the Tax Administrator determines that the installment agreement
will facilitate collection.
(1)
Extent to which installment agreements remain in effect.
(a)
Except as otherwise provided in this Subsection M(1), any installment agreement entered into by the Tax Administrator under this Section 111 shall remain in effect for the term of the agreement.
(b)
The Tax Administrator may terminate any prior installment
agreement entered into under this Section 111 if:
[1]
Information which the taxpayer provided to the Tax Administrator
prior to the date of the installment agreement was inaccurate, false, erroneous
or incomplete in any manner, determined in the reasonable discretion of the
Tax Administrator; or
[2]
The Tax Administrator reasonably believes and has determined
that collection of the eligible tax under the installment agreement is in
jeopardy.
(c)
If the Tax Administrator finds that the financial condition
of the taxpayer has significantly changed, the Tax Administrator may unilaterally
alter, modify or terminate the installment agreement, but only if the following
conditions are satisfied:
[1]
The Tax Administrator provides a notice of its findings
to the taxpayer no later than 30 days prior to the date of change of the installment
agreement; and
[2]
The notice given by the Tax Administrator to the taxpayer
provides the reasons why the Tax Administrator believes that a significant
change, justifying a change to the installment agreement, has occurred.
(d)
The Tax Administrator may unilaterally and without notification
alter, modify or terminate an installment agreement entered into by the Tax
Administrator under this Section 111 if the taxpayer fails to do any of the
following:
(e)
No administrative appeal is permitted in the event of
an alteration, modification or termination of an installment agreement. However,
an appeal may be made to the Court of Common Pleas of this county.
(2)
Prepayment permitted. Nothing in this Section 111 shall
prevent a taxpayer from prepaying in whole or in part any eligible tax under
any installment agreement with the Tax Administrator.
N.
Section 112. Confidentiality of tax information.
(1)
Any information obtained by the Tax Administrator or
Hearing Officer, or any of their respective officers, agents, legal counsel,
financial accountants or employees as a result of any audit, assessment, return,
report, investigation, hearing, appeal or verification of a taxpayer shall
be confidential tax information. It shall be unlawful, except for official
purposes or as provided by law, for such persons to:
(a)
Divulge or make known in any manner any confidential
information obtained through any audit, return, assessment, investigation,
report, appeal, hearing or verification of a taxpayer to any person other
than the taxpayer or the taxpayer's authorized representative.
(b)
Permit confidential tax information or any book containing
any abstract or particulars thereof to be seen or examined by any person other
than the taxpayer or the taxpayer's authorized representative.
(c)
Print, publish or make known in any manner any confidential
tax information of a taxpayer.
(2)
An offense under this Section 112 is a misdemeanor of
the third degree and, upon conviction thereof, a fine of not more than $2,500
and costs, or a term of imprisonment for not more than one year, or both,
may be imposed on the offender. If the offender is an officer or employee
of the Tax Administrator or the Hearing Officer, the officer or employee shall
be dismissed from office or discharged from employment.
O.
Section 113. Collection. After the decision of an appeal,
or if no appeal is requested by a taxpayer, the Tax Administrator may engage
in efforts to collect any eligible tax determined to be legally due. Such
efforts may include, but shall not be limited to, obtaining additional information,
auditing taxpayer records, compromising the amount of tax, interest or penalty
owed, obtaining liens on the taxpayer's property, or obtaining wage attachments,
levies and seizures of the taxpayer's property. As provided in Section 111[5] of these regulations, the Tax Administrator may enter into a written
installment agreement with the taxpayer if the Tax Administrator determines
that an installment agreement will facilitate collection. The Tax Administrator
also reserves the right to seek criminal prosecution of a taxpayer in appropriate
circumstances.
