[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.
ASSESSMENT
ELIGIBLE TAX
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
HEARING OFFICER
LOCAL GOVERNMENT
LOCAL TAXPAYERS' BILL OF RIGHTS
OVERPAYMENT
PETITION
TAX ADMINISTRATOR
TAXPAYER
UNDERPAYMENT
VOLUNTARY PAYMENT
Definitions. As used in this section, the following
terms shall have the meanings indicated:
The determination by the Tax Administrator of the amount
of underpayment by a taxpayer.
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:
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;
Any per capita tax;
Any occupation, occupation assessment or occupation
privilege tax;
Any tax levied on income;
Any tax measured by gross receipts;
Any tax on a privilege;
Any tax on amusements or admissions; and
Any tax on earned income and net profits.
The Hearing Officer appointed by the Board of Supervisors
of Hempfield Township to hear administrative appeals regarding an
eligible tax.
Hempfield Township, Westmoreland County, Pennsylvania.
Subchapter C of Act 50 of 1998 of the Pennsylvania General
Assembly, 53 Pa.C.S.A. §§ 8421-8428 (hereinafter referred
to as LTBR).
Any payment of tax which is determined, in the manner provided
by law, not to be legally due.
The petition for appeal and refund as described herein.
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."
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.
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.
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)
DATE OF OVERPAYMENT
(a)
(b)
(c)
(d)
(e)
DATE OF RESOLUTION
(a)
(b)
[1]
[2]
Definitions. As used in this Section 108, the following words and phrases shall have the meanings given to them in this subsection (5):
The later of the date paid or the date the tax is deemed
to have been overpaid as follows:
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.
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.
An overpayment made before the last day prescribed
for payment shall be deemed to have been paid on the last day.
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.
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.
The date the overpayment is refunded or credited as follows:
For a cash refund, a date preceding the date
of the refund check by not more than 30 days.
For a credit for an overpayment:
The date of the Tax Administrator's notice to
the taxpayer of the determination of the credit; or
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.
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.
