[Adopted 11-30-1988 by Ord. No. 761 (Ch. 24, Part 2, of the
1993 Code)]
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:
The Borough of Irwin.
Any activity carried on or exercised for gain or for profit
in the Borough, 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 beginning January 1 through December 31, inclusive.
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 Borough of
Irwin to administer the within tax.
Any person subject to the payment of the tax imposed by this
article.
The period from January 1 through 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 1989 (and annually thereafter)
a tax for general revenue purposes on the privilege of doing business
as herein defined in the Borough, 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 Borough shall be one mill. "One mill" shall mean $1
per every $1,000 of gross volume of business.
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 commenced 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 less 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 which is temporary, seasonal, or itinerant in
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 Borough 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 Borough
in any case where the taxpayer disputes the validity or amount of
the Borough's claim for tax. If it is thereafter judicially determined
by a court of competent jurisdiction that the Borough 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 education 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)
Pre-exemption 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 Borough, 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
Borough.
(a)
Contractors with field offices. Borough contractors or subcontractors
engaged in the performance of building and construction contracts
at a point outside the territorial limits of the Borough 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)
Alteration and repairs. The provisions of this section shall
apply only to contractors engaged in the erection of complete new
buildings or in the complete altering 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 Borough.
(c)
Architects, engineers, consultants, and technicians. The provisions
of this subsection do not apply to architects, engineers, consultants,
and technicians rendering professional services outside the Borough.
(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-Borough branch offices.
(a)
Where a Borough general agent or broker of an insurance, real
estate, or other firm establishes and maintains a bona fide branch
office outside the Borough, the commissions attributable to such branch
office may be excluded from gross receipts. Commissions will be deemed
attributable to the Borough, 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 Borough 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 Borough 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-Borough branch offices, stores, etc.
(a)
Where a Borough business establishes and maintains a bona fide
branch office, store, or other place of business outside the Borough,
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 Borough, and hence subject to including in the
measure of the tax, if they result from the efforts of persons who
work in, from, or are attached to the Borough 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 Borough 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 Borough Council, 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 Borough 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 Borough, 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 Borough 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] and/or the Home Rule Charter and Optional Plans Law, 1972,
P.L. 814, No. 64, as amended,[2] to the Borough and one or more noncoterminous political
subdivisions of the commonwealth, then, 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.
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 which he is entitled to deduct from the gross
or whole volume of business as hereinbefore provided.
H.
The obligation to pay the tax, as provided hereunder, shall not apply to any person or taxpayer who shall have less than $5,000 of whole or gross volume of business transacted within the territorial limits of the Borough; provided, however, each person shall file his annual return as provided for in § 238-32 of this article, notwithstanding the fact that no taxes may be owing.
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, 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 any tax year shall, within 105 days from the date of commencing such business if said one-hundred-five-day period ends after May 15th of the tax year, and if prior thereto, on May 15th of the tax year, file with the Tax Administrator a return setting forth his name, his business, 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 in § 238-31 hereof, and the amount of the 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 15th of the tax year, and if prior thereto, on May 15th of the tax year, file with the Tax Administrator a return setting forth his name, his business, 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 § 238-31 of this article, 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 which is 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, 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 § 238-31 of this article, and the amount of the tax due.
F.
Any person going out of or ceasing to do business in the Borough
shall, within 15 days from the date of ceasing to do business, file
a return with the Tax Administrator 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 taxes 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 hereinabove, 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. If a receipt via return mail is desired,
a stamped, self-addressed envelope shall be furnished by the taxpayer.
On or after the effective date of this article, any person desiring
to conduct or to continue to conduct any business, as herein defined,
within the Borough shall file with the Tax Administrator an application
for the issuance of a business privilege license. Such license shall
be valid only for the person to whom it is issued and shall not be
transferable or assignable to any other person.
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 Borough shall obtain one license
for all his places of business and shall post such license at his
principal place of business.
[Amended 7-7-1993 by Ord. No. 791; 12-13-2017 by Ord. No. 961]
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 complete tax return, inclusive
of all necessary federal and state tax forms and schedules necessary
to substantiate the same, and 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 30 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 Borough Council, are hereby empowered, with the approval
by resolution of the Borough Council, to prescribe, adopt and promulgate
rules and regulations relating to any matter pertaining to the administration
and enforcement of this article, including 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 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
Borough, as a result of any return, examination, investigation, hearing,
or verifications 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 Borough, 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.
