[Adopted 1-12-1988 by Ord. No. 386]
[Added 12-12-1994 by Ord. No. 526]
Pursuant to the authority granted by the Local
Tax Enabling Act (53 P.S. § 6901 et seq.), the City Council
of the City of Pottsville hereby imposes a business privilege tax
for general revenue purposes, to be levied and assessed as hereinafter
provided.
This Article shall be known as the "Business
Privilege Tax Ordinance."
The following words and phrases, when used in
this article, shall have the meanings ascribed to them in this section,
except where the context clearly indicates a different meaning:
Any activity carried on or exercised for gain or profit in
the City of Pottsville, including but not limited to the sale of merchandise
or other tangible personalty, the performance of services and the
rental of personalty and/or realty.
The period January 1 to December 31, inclusive.
The City of Pottsville.
The application of labor and skill to material whereby the
original article is changed into a new, different and useful article.
Any individual, partnership, limited partnership, association,
firm or corporation. Whenever used in any clause prescribing or imposing
a penalty, the term "person," as applied to associations, shall mean
the partners or members thereof and, as applied to corporations, the
officers thereof.
The person duly appointed by the Council of the City of Pottsville
to administer the within tax.
Any person subject to the payment of the tax imposed by this
article.
The period from January 1 to December 31, inclusive.
Any person who sells to dealers in or vendors of goods, wares
and merchandise and to no other persons.
There is hereby levied for the tax year 1988,
and annually thereafter, a tax for general revenue purposes on the
privilege of doing business, as herein defined, in the City of Pottsville,
as follows:
A.
Rate and basis of tax. The rate of the tax on each
and every dollar of the whole or gross volume of business transacted
within the territorial limits of the City of Pottsville by persons
subject to the payment of the tax hereby imposed, shall be three and
one-half (3 1/2) mills, which shall mean $3.50 per $1,000 of the whole
or gross volume of business, except that, for wholesale dealers or
wholesale vendors, the rate of tax on each and every dollar of the
whole or gross volume of business transacted shall be one mill or
$1 per $1,000 of whole of gross volume of business, and for retail
dealers and retail vendors, the rate of tax on each and every dollar
of the whole or gross volume of business transacted shall be one and
one-half (1 1/2) mills or $1.50 per $1,000 of the whole or gross volume
of business.
[Amended 12-28-1989 by Ord. No. 424]
B.
Computation of volume of business.
(1)
Every person subject to the payment of the tax hereby
imposed who has commenced his business before the beginning of the
full calendar year prior to the tax year shall compute his annual
estimated gross volume of business upon the actual gross amount of
business transacted by him during the prior calendar year.
(2)
Every person subject to the payment of the tax hereby
imposed who has commenced or who commences his business before the
beginning of the tax year but after the beginning of the full calendar
year prior to the tax year shall compute his estimated annual gross
volume of business for the tax year upon the gross amount of business
transacted by him during the prior calendar year, taking the monthly
average during said period and multiplying the same by 12. In the
event that he shall be in business fewer than 90 days in the prior
calendar year, he shall be permitted to use sufficient days in the
calendar year in which the tax year begins to equal 90 successive
days after commencement of business, to take a monthly average thereon,
and to multiply the same by 12.
(3)
Every person subject to the payment of the tax hereby
imposed who has commenced or commences his business subsequent to
the beginning of the tax year, if there shall be fewer than three
months from the commencement of his business to the end of the tax
year, shall compute his annual gross volume of business upon the actual
gross amount of business transacted by him during the tax year. If
there shall be more than three months from the commencement of his
business to the end of the tax year, he shall compute his estimated
gross volume of business for such tax year upon the gross amount of
business transacted by him during the period from the commencement
of his business to the end of the tax year, taking the monthly average
during the first three months of business and multiplying the same
by the number of months from the commencement of business to the end
of the tax year.
(4)
Every person subject to the payment of the tax hereby
imposed who engages in a business temporary, seasonal or itinerant
by nature shall compute the estimated gross amount of business to
be transacted by him for the period said person engages in such temporary,
seasonal or itinerant business within the City by a method to be determined
by the Tax Administrator.
(5)
The Tax Administrator is hereby authorized to accept
payment under protest of the amount of business privilege tax claimed
by the City in any case where the taxpayer disputes the validity or
amount of the City's claim for tax. If it is thereafter judicially
determined by a court of competent jurisdiction that the City has
been overpaid, the amount of the overpayment shall be refunded to
the taxpayer. The provisions of this section shall apply to instances
in which the facts are the same as those in like cases litigated before
a court of competent jurisdiction.
C.
Persons, businesses and receipts exempted/excluded.
(1)
Persons and businesses. Persons employed for a wage
or salary, the noncommercial activities of nonprofit corporations
or associations organized for religious, charitable or educational
purposes, agencies of the government of the United States or of the
Commonwealth of Pennsylvania and the business of any political subdivision
or of any authority created or organized under and pursuant to any
Act of Assembly are exempt from the provisions of this article.
(2)
Preemption by commonwealth. No such tax shall be assessed
and collected on a privilege, transaction, subject or occupation which
is subject to a tax or license fee by the Commonwealth of Pennsylvania
and which tax or license fee has been held by a court of competent
jurisdiction to be the basis for exemption from the imposition of
a business privilege tax by a political subdivision.
(3)
Utilities. No such tax shall be assessed and collected
on the gross receipts from utility service of any person or company
whose rates of service are fixed and regulated by the Pennsylvania
Public Utility Commission or on any public utility service rendered
by any such person or company or on any privilege or transaction involving
the rendering of any such public utility service.
(4)
Commonwealth tax on tangible property. No such tax
shall be assessed and collected on the privilege of employing such
tangible property as is subject to a tax by the Commonwealth of Pennsylvania,
except on sales of admission to places of amusement or on sales or
other transfers of title or possession of property.
(5)
Production and manufacture. No such tax shall be assessed
and collected on goods, articles and products or on by-products of
manufacture or on minerals, timber, natural resources and farm products
manufactured, produced or grown in the City of Pottsville or on the
preparation or processing thereof for use or market or on any privilege,
act or transaction relating to the business of manufacturing, the
production, preparation or processing of minerals, timber and natural
resources or farm products by manufacturers, by producers and by farmers
with respect to the goods, articles and products of their own manufacture,
production or growth or any privilege, act or transaction relating
to the business of processing by-products of manufacture or on the
transportation, loading, unloading or dumping or storage of such goods,
articles, products or by-products.
(6)
Trade-in allowance. No such tax shall be assessed
and collected on the dollar volume of business transacted by wholesale
and retail dealers derived from the resale of goods, wares and merchandise
taken by any such dealer as a trade-in or as part payment for other
goods, wares and merchandise, except to the extent that the resale
price exceeds the trade-in allowance.
(7)
Contractors performing building or construction work
outside the City of Pottsville.
(a)
Contractors with field offices. City of Pottsville
contractors or subcontractors engaged in the performance of building
and construction contracts at a point outside the territorial limits
of the City may exclude from the measure of the tax the receipts derived
therefrom, provided that a bona fide field office was established
and maintained on the premises of the project during the performance
of the contract to such an extent as to constitute doing local business
at the situs of the job.
(b)
Alterations and repairs. The provisions of this
section apply only to contractors engaged in the erection of complete
new buildings or in the complete alteration and remodeling of old
buildings. They do not apply to contractors who engage in alteration
and repair jobs, such as a roofer repairing the roof of a building
situated outside the City of Pottsville.
(c)
Architects, engineers, consultants and technicians. The provisions of Subsection C(7) do not apply to architects, engineers, consultants and technicians rendering professional services outside the City of Pottsville.
(d)
Qualifications for exclusion. In order to qualify
for exclusion hereunder, the contractor must show that he established
a place of business at the situs of the job by maintaining a bona
fide field office thereat with machinery and equipment for use in
the fulfillment of the contract together with the performance of such
other functions so as to constitute doing local business at the situs
of the job.
(8)
Brokers and agents with out-of-City branch offices.
(a)
Where a City of Pottsville general agent or
broker of an insurance, real estate or other firm establishes and
maintains a bona fide branch office outside the City, the commissions
attributable to such branch office may be excluded from gross receipts.
Commissions will be deemed attributable to the City and hence subject
to inclusion in the measure of the tax, if they result from the efforts
of brokers, subagents or employees who work in, from or are attached
to the City of Pottsville office.
(b)
In order to qualify for exclusion hereunder,
the agent or broker must show that he established and maintained a
bona fide place of business outside the City by owning or leasing
realty thereat together with the performance of such other functions
so as to clearly constitute doing local business at such location.
(9)
Businesses with out-of-City branch offices, stores,
etc.
(a)
Where a City of Pottsville business establishes
and maintains a bona fide branch office, store or other place of business
outside the City, the receipts attributable to such branch offices
or stores may be excluded from the gross volume of business. Receipts
will be deemed attributable to the City, and hence subject to inclusion
in the measure of the tax, if they result from the efforts of persons
who work in, from or are attached to the City of Pottsville place
of business.
(b)
In order to qualify for exclusion hereunder,
the taxpayer must show that he established and maintained a bona fide
place of business outside the City by owning or leasing realty thereat
together with the performance of such other functions so as to clearly
constitute doing local business at such location.
D.
Determination of gross or whole volume business. The
gross or whole volume of business upon which the tax hereunder is
computed shall include the gross consideration credited or received
for or on account of sales made, services performed, personalty or
realty rented and commissions earned subject only to allowable deductions
and exemptions. Where the gross or whole volume of business cannot
be subjected to the tax imposed by this article by reason of the provisions
of the Constitution of the United States or of the Commonwealth of
Pennsylvania or any other provision of law, the Tax Administrator,
with the approval by resolution of the Council of the City of Pottsville,
shall promulgate rules and regulations and methods of allocation and
evaluation so that only the gross or whole volume of business which
is properly attributable and allocable to doing business in the City
shall be taxed hereunder.
E.
Partial exemptions/exclusions. Where the gross or
whole volume of business in its entirety cannot be subjected to the
tax imposed by this article by reason of the provisions of the Constitution
of the United States or of the Commonwealth of Pennsylvania or any
other provision of law, the Tax Administrator, with the approval by
resolution of the Council of the City of Pottsville, shall promulgate
rules and regulations and methods of allocation and evaluation so
that only that part of the gross or whole volume of business which
is properly attributable and allocable to doing business in the City
shall be taxed hereunder.
F.
Rate when same tax is imposed by two taxing bodies.
If any person is liable for the same tax on the same subject imposed
under the Local Tax Enabling Act, 1965, P.L. 1257, No. 511, as amended,[1] to the City and one or more non-coterminous political
subdivisions of the commonwealth and when such tax is limited by the
Enabling Act, then and in that event, the tax shall be apportioned
by such percentage as may be agreed upon by the political subdivisions,
but in no event shall the combined taxes of both political subdivisions
exceed the maximum rate of tax as fixed by the Enabling Act permitting
the imposition of such taxes.
[1]
Editor's Note: See 53 P.S. § 6901
et seq.
G.
Records. The taxpayer, to obtain the allowable exemptions,
exclusions and deductions, shall keep books and records of his business
so as to show clearly, accurately and separately the amount of such
sales, services and rentals as are exempted or excluded from the tax
and the amounts of such sales, services and rentals which he is entitled
to deduct from the gross or whole volume of business as hereinbefore
provided.
A.
Every return shall be made upon a form furnished by
the Tax Administrator. Every person making a return shall certify
the correctness thereof by affidavit and attach thereto a copy of
the appropriate form or schedule from their federal income tax return
for their prior calendar or fiscal year(s) to substantiate the gross
or whole volume of business reported. Where exemptions or exclusions
are claimed, substantiation of the nature and amount of such deductions
taken shall be attached to the return.
B.
Every person subject to the tax imposed by this article
who commenced his business on or before January 1 of the full calendar
year prior to the beginning of any tax year shall, on or before the
15th day of May of the tax year, file with the Tax Administrator a
return setting forth his name, his business, the business address
and such other information as may be necessary in arriving at the
actual gross amount of business transacted by him during the preceding
calendar year and the amount of the tax due.
C.
Every person subject to the tax imposed by this article who has commenced his business before the beginning of the tax year but after January 1 of the full calendar year prior to the beginning of the tax year shall, on or before the 15th day of May of the tax year, file with the Tax Administrator a return setting forth his name, his business, the business address and such other information as may be necessary in arriving at the estimated gross amount of business transacted by him, as calculated under § 201-65B(2) hereof, and the amount of tax due.
D.
Every person subject to the tax imposed by this article who commences business subsequent to the beginning of any tax year shall, within 105 days from the date of commencing such business if said one-hundred-five-day period ends after May 15 of the tax year and, if prior thereto, on May 15 of the tax year, file a return with the Tax Administrator setting forth his name, his business and the business address and such other information as may be necessary in arriving at the estimated or actual gross amount of business transacted by him, as calculated under § 201-65B(3) hereof, and the amount of the tax due.
E.
Every person subject to the payment of the tax imposed by this article who engages in a business temporary, seasonal or itinerant by its nature shall, at the time application is made for the business privilege license, file a return with the Tax Administrator setting forth his name, his business, his business address and such information as may be necessary in arriving at the estimated gross amount of business to be transacted by him, as calculated in accordance with § 201-65B(4) hereof, and the amount of the tax due.
F.
Any person going out of or ceasing to do business
in the City shall, within 15 days from the date of ceasing to do business,
file a return showing the actual gross amount of business transacted
by such person during the tax year in which said person ceased doing
business and pay the tax due, as computed thereon, at the rate herein
provided for at the time of filing said return. If such tax has been
previously paid based upon estimated gross receipts, the taxpayer
shall be entitled to a refund of any excess tax paid for the tax year
in which business was terminated.
G.
Payment of tax and penalties for late payment. The
tax levied pursuant to this article shall be due and payable on the
date on which the taxpayer is required to file a return, as set forth
hereinbefore, and if the same is not paid on that date, a penalty
of 10% shall be added thereto, plus interest at the rate of 1% per
month of the unpaid tax for each month or fraction thereof during
which the tax remains unpaid. Total amounts due of less than $1 need
not be paid.
H.
Receipt. The Tax Administrator shall, upon payment
to him of tax levied pursuant to this article, give the person paying
the same a receipt therefor, if requested. A stamped, self-addressed
envelope shall be furnished by the taxpayer if a receipt via return
mail is desired.
The license shall be conspicuously posted in
the place of business for which such license is issued. A licensee
maintaining more than one place of business within the City shall
obtain one license for all his places of business and shall post such
license at his principal place of business.
[Amended 12-12-1994 by Ord. No. 526]
Any person who conducts or engages in any business
subject to the tax imposed by this article, without having first secured
a business privilege license, or who fails to file a tax return as
required by the provisions of this article or who willfully files
a false return or who fails to maintain such records and books of
account as shall enable him to make a true and correct return in accordance
with the provisions of this article or any person subject to or supposed
to be subject to the tax imposed by this article who refuses to allow
the Tax Administrator or his duly appointed deputies to examine the
books, papers and records of such person or who fails to comply with
any other provisions of this article shall, upon conviction, be fined
not more than $600 for each offense, plus costs, and, in default of
payment thereof, shall be imprisoned for not more than 90 days.
Each day on which any person violates this article
shall be considered as a separate offense and shall be punishable
as such as hereinbefore provided.
A.
The Tax Administrator is charged with the duty of
collecting and receiving the taxes, fines, interest and penalties
imposed by this article. It shall be his duty to keep a record showing
the amount received by him from each person paying the tax and the
date of such receipt.
B.
The Tax Administrator and his duly appointed deputies,
under the direction of the City Treasurer, are hereby empowered, with
the approval by resolution of the Council of the City of Pottsville,
to prescribe, adopt and promulgate rules and regulations relating
to any matter pertaining to the administration and enforcement of
this article, including provisions for the reexamination and correction
of returns and of payments alleged or found to be incorrect or as
to which an overpayment is claimed or found to have occurred and charged
with enforcing the provisions of this article and any rules and/or
regulations promulgated pursuant hereto.
C.
In the event that any person subject to the tax imposed
by this article neglects or refuses to make a return, then and in
such case the Tax Administrator or his duly appointed deputies shall
assess said person on such an amount of whole or gross volume of business
as the Tax Administrator or his deputies deem reasonable and appropriate.
In all cases of assessment, the Tax Administrator or his deputies
shall give the person assessed a notice, in which shall be stated
the nature of business conducted and the amount of tax imposed or
levied.
D.
Any person subject to the tax imposed by this article
shall maintain such records and books of account as will enable him
to make a true and accurate return in accordance with the provisions
of this article. Such records must disclose, in detail, gross receipts
and other data pertaining to the taxpayer's gross or whole volume
of business and must be sufficiently complete to enable the Tax Administrator
or his duly appointed deputies to verify all transactions. The Tax
Administrator or his deputies are hereby authorized to examine the
books, papers and records of any person subject to or supposed to
be subject to the tax imposed by this article in order to verify the
accuracy of any return made or, if no return was made, to ascertain
the tax due.
Any information gained by the Tax Administrator
or his duly appointed deputies or any other official, agent or employee
of the City as a result of any return, examination, investigation,
hearing or verification required or authorized by this article shall
be confidential, except in accordance with proper judicial order or
as otherwise provided by law.
A.
The Tax Administrator or his duly appointed deputies
shall have the power, in the name of the City, to institute proceedings
against any person who violates the provisions of this article.
B.
If, for any reason, the tax is not paid when due and
suit is brought for the recovery of such tax, the person liable therefor
shall, in addition, be liable for the costs of collection and the
interest and penalties herein imposed.
A.
Nothing contained in this article shall be construed
to empower the City to levy and collect the tax hereby imposed on
any person or any business or any portion of any business not within
the taxing powers of the City granted by the Constitution of the United
States or of the Commonwealth of Pennsylvania or any other provision
of law.
B.
If the tax or any portion thereof imposed upon any
person under the provisions of this article shall be held by a court
of competent jurisdiction to be in violation of the Constitution of
the United States or of the Commonwealth of Pennsylvania or any other
provision of law, the decision of the court shall not affect or impair
the right to impose the tax or the validity of the tax so imposed
upon other persons, as herein provided.
