[Adopted 12-22-1986 by Ord. No. 650, approved 12-22-1986]
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 masculine includes
the feminine, the singular includes the plural, and vice versa.
The Borough of Darby.
Any activity carried on or exercised for gain or profit in
the Borough of Darby, Delaware County, Pennsylvania, including but
not limited to the sale of merchandise or other tangible property
or realty.
The period from January 1 to December 31, inclusive, and
each year thereafter.
The gross value of revenue received in cash, credits or property
of any kind or nature by any person engaging in business in Darby
Borough. In the case of a sale of goods in which goods are delivered
from a place of business regularly maintained outside Darby Borough
by the purchaser and in the case of any service which was rendered
outside Darby Borough by individuals in Darby Borough, "gross volume
of business" will only include that portion of the revenue therefrom
which is received or earned from transactions made and/or services
performed within Darby Borough. In case of a financial business, the
cost of security and other property sold, exchanged, paid at maturity
or redeemed and moneys or credits received in repayment of advances,
credits and loans (not to exceed the principal amount of such advances,
credits or loans), and deposits shall not be included.
The period from January 1 to December 31, inclusive, and
each year thereafter.
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 Borough Council of Darby
Borough to administer the within tax.
A person subject to the payment of the tax imposed by this
article.
The period from January 1 to December 31, inclusive, and
each year thereafter.
Any business that is conducted in one location for less than
60 consecutive days.
A.
For the tax year beginning January 1 and for each tax year thereafter,
every person desiring to continue to engage in or hereafter to begin
to engage in a business in the Borough on or before the 31st day of
January of the tax year or prior to commencing business in such tax
year shall make application for one registration for each actual place
of business within the Borough and, if such person has no actual place
of business within the Borough, shall make application for one registration
with the Tax Collector. Such registration shall be made by the completion
of an application furnished by the Tax Collector and the payment of
a registration fee to be established by the Borough Council. Each
registration shall be made by the applicant if a natural person and,
in the case of a corporation, by an officer thereof or, in the case
of an association or partnership, by a member or partner thereof.
B.
Each applicant shall receive a certification of registration from
the Tax Collector, which shall not be assignable. In the case of loss,
defacement or destruction of any certificate, the person to whom the
certificate was issued shall apply to the Tax Collector for a new
certificate, for which a fee shall be charged. Such certificate shall
be conspicuously posted at each place of business within the Borough
at all times. Any taxpayer who is in default in payment of tax due
hereunder shall be refused a certificate until such tax is paid in
full.
There is hereby levied for the tax year 1987 and annually thereafter
a tax for general revenue purposes of the privilege of doing business
as herein defined in Darby Borough, Delaware County, Pennsylvania,
as follows:
A.
Rate and basis of tax. The rate of tax on each and every dollar of
the whole or gross volume of business transacted within the territorial
limits of Darby Borough shall be 1 1/2 mils (1 1/2 mils
means $1.50 per $1,000 of gross volume of business), except that the
rate of the tax on each and every dollar of the whole or gross volume
of business transacted by wholesale dealers or wholesale vendors within
the territorial limits of Darby Borough shall be one mil. All nonwholesale
business of such wholesale dealers or wholesale vendors shall be taxed
at the general rate of 1 1/2 mils. All taxpayers may credit toward
payment of the tax imposed the registration fee.
B.
Computation of volume of business.
(1)
Every person subject to the payment of the tax hereby imposed who
has commenced his business 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 said immediately preceding calendar
year.
(2)
Every person subject to the payment of the tax hereby imposed who
has commenced or who commences his business less than one full year
prior to the beginning of the license year shall compute his annual
gross volume of business for such license year upon the gross volume
of business transacted by him during the first month in business multiplied
by 12.
(3)
Every person subject to the payment of the tax hereby imposed who
commences his business subsequent to the beginning of the license
year shall compute his annual gross volume of business for such license
year upon the gross volume of business transacted by him during the
first month of his engaging in business multiplied by the number of
months he engages in business in such license year.
(4)
Every person subject to the payment of the tax hereby imposed who
engages in a business temporary, seasonal or itinerant by its nature
shall compute his annual gross volume of business upon the actual
gross amount of business transacted by him during the license year.
The aforementioned shall be required to make a deposit in an amount
determined by the Tax Administrator prior to their engaging in business.
(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 cases 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 be applicable to cases in which the
facts are similar to those in a case litigated in a court of competent
jurisdiction.
C.
Persons, businesses and receipts exempted.
(1)
Persons and businesses. Persons employed for a wage or salary, 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)
No such tax shall be assessed and collected on a privilege, transaction,
subject or occupation which is subject to a state tax or license fee
and which tax or license fee has been held by the courts of Pennsylvania
to be the basis for exemption from the imposition of a business privilege
tax by a municipality.
(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 privilege or transaction involving the rendering
of any such public utility service.
(4)
State 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 state tax except on sales of admission to places of
amusement or on sales or other transfers of title or possession of
property.
(5)
No such tax shall be assessed and collected on any other person exempt
by law from the imposition of this tax.
D.
Determination of gross or whole volume business. 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, rentals and/or services rendered, subject only to the
following allowable deductions and exemptions:
(1)
The dollar volume of business transacted by wholesale and retail
dealers derived from the resale of goods, wares and merchandise, except
to the extent that the resale price exceeds the trade-in allowance.
(2)
Refunds, credits or allowances given by a taxpayer to a purchaser
on account of defects in goods, wares or merchandise sold or on account
of goods, wares or merchandise returned.
(3)
Any commissions paid by a broker to another broker on account of
a purchase or sales contract initiated, executed or cleared with such
broker.
(4)
Bad debts, where the deduction is also taken in the same year for
federal income taxation purposes.
(5)
Taxes collected as agent for the United States of America, Commonwealth
of Pennsylvania or Darby Borough.
E.
Partial exemptions. Where 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 any other provision of law, the Tax Administrator, with the approval
of the Borough, shall establish 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 allowable
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, December 31, 1965, P.L. 1257, and its amendments,[1] to the Borough and one or more political subdivisions
of the state, then and in that event the tax shall be apportioned
by such political subdivisions, but in no event shall the combined
taxes of both subdivisions exceed a maximum rate of tax by said enabling
act permitting the imposition of such taxes.
[1]
Editor's Note: Pursuant to P.L. 197, No. 32, enacted 7-2-2008,
sections of the Local Tax Enabling Act formerly codified in 53 P.S.
§ 6901 et seq. have been revised and renumbered. See now
53 P.S. § 6924.101 et seq.
G.
Records. The taxpayer, to obtain the foregoing enumerated exclusions
and deductions, shall keep books and records of his business so as
to show clearly, accurately and separately the amount of such sales
and services as are excluded from the tax and the amounts of such
sales and services which he is entitled to deduct from the gross 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. Each return shall be documented by the appropriate schedule
to verify its accuracy.
B.
Every person subject to the tax imposed by this article who commenced
his business at least one full year prior to the beginning of any
license year shall, on or before the 15th day of April of each year,
file with the Tax Administrator a return setting forth his name, his
business and business address and such other information as may be
necessary in arriving at the actual gross amount of business transacted
by him during the first month of business and the amount of the tax
due.
C.
Every person subject to the tax imposed by this article who commences
business subsequent to the beginning of any license year shall, within
60 days from date of commencing such business, file a return with
the Tax Administrator setting forth his name, his business and business
address and such information as may be necessary in arriving at the
actual gross amount of business transacted by him during his first
month of business and the amount of the tax due.
D.
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, within seven days from the day he completes such business,
file a return with the Tax Administrator setting forth his name, his
business address and such information as may be necessary in arriving
at the actual gross amount of business transacted by him during such
period and the amount of the tax due.
E.
Any person going out of or ceasing to do business shall, within 14
days from the date of ceasing to do business, file a return showing
the actual gross volume of business conducted and done by such person
during that 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, without interest, of any excess tax paid for the tax
year in which business was terminated.
F.
Receipt. The Tax Administrator shall, upon payment to him of the
business privilege tax, give the person paying the same a receipt
therefor, or the Tax Administrator, as the case may be.
The business privilege 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 above, and, if the same is not paid on
said date, a penalty of 10% of tax due shall be added thereto, plus
interest of 1 1/4% of tax due for each month or fractional part
thereof from the day it is due and payable until paid.
On or before April 15 of each year, beginning in 1987, every person subject to the tax hereby imposed shall make a final return to the Collector showing the actual volume of business transacted by the taxpayer during the preceding license year. Such final return shall state the amount of gross volume of business as set forth in the first tax return (see § 130-42, Returns), the amount of tax paid at the time of filing the first tax return and the amount of tax due upon the final computation. Each final return shall be documented by appropriate schedule to verify the accuracy thereof.
Any person who shall conduct, transact or engage in any of the
businesses subject to the tax imposed by this article without having
first secured a business privilege license for the year or any person
who shall fail to file a tax return as required by the provisions
of this article or any person who shall willfully file a false return
shall, upon summary conviction before any District Judge in the County
of Delaware, be sentenced to pay a fine not to exceed $300 for any
one offense, recoverable with costs, or imprisonment not exceeding
90 days if the amount of said fine and costs shall not be paid. The
fine imposed by this section shall be in addition to any other penalty
imposed by any other section of this article.
Each day on which such person violated the article will be considered
as a separate offense and punishable as such as aforeprovided.
A.
The Tax Administrator is charged with the duties of receiving the
taxes, fines 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 shall recommend
to the Borough Council of Darby Borough rules and regulations relating
to any matter pertaining to the collection, administration and enforcement
of this article, including provision for the examination and correction
of returns and payments alleged or found to be incorrect or as to
which any overpayments claimed or found to have occurred, and is charged
with enforcing the provisions of this article and any rules and/or
regulations promulgated pursuant hereto.
C.
In the event that the person to be assessed neglects or refuses to
make a return, then, in such case, the Tax Administrator or his duly
appointed deputies shall assess said person or persons 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 duly appointed deputies shall give the
parties assessed a notice in which shall be stated the trade, business,
occupation or class and the amount of the business privilege tax imposed
or levied.
D.
The taxpayer shall maintain such records and books or accounts as
will enable him to make a true and accurate return in accordance with
the provisions of this article. Such accounts and records must disclose
in detail the gross receipts and other data pertaining to the taxpayer's
gross volume of business and must be sufficiently complete to enable
the Tax Administrator or his deputies to verify all transactions.
The Tax Administrator or his deputies are hereby authorized to examine
the books, papers and records of any person or persons subject to
or supposed to the tax imposed by this article in order to verify
the accuracy of the return made or, if no return was made, ascertain
the tax due.
E.
Any person aggrieved by any decision of the Tax Administrator shall
have the right to appeal to the Court of Common Pleas as in other
cases.
Any information gained by the Tax Administrator or any other
official, agent or employee of the Borough as a result of any returns,
investigations, hearings or verifications required or authorized by
this article shall be confidential, except 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 and all persons who violate 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 any such tax, the person liable therefor shall,
in addition, be liable for the costs of collection and interest and
penalties herein imposed.
A.
Nothing contained in this article shall be construed to empower the
Borough to levy and collect the taxes hereby imposed on any person
or any business or any portion of any business not within the taxing
power of the Borough under the Constitution of the Commonwealth of
Pennsylvania.
B.
If the tax or any portion thereof imposed upon any person under the
provisions of this article shall be held by any court of competent
power or jurisdiction to be a violation of the Constitution of the
United States or of the Commonwealth of Pennsylvania or any other
provision of law, the decisions of the court shall not affect or impair
the right to impose the taxes or the validity of the taxes or the
validity of the taxes so imposed upon other persons as herein provided.
C.
The provisions of this article are severable, and, if any of its
provisions shall be held illegal, invalid or unconstitutional, the
decision of the court shall not affect or impair any of the remaining
provisions of this article. It is hereby declared to be the intention
of the Borough Council of Darby Borough that this article would have
been adopted if such illegal, invalid or unconstitutional provisions
had not been included herein.
It is the intent of the Borough Council of Darby Borough that
any ordinance now in effect which imposes a special license fee or
tax on specific types or kinds of business not covered by the provisions
of this article shall be and remain in full force and effect.
This article is enacted pursuant to the authority of the Local
Tax Enabling Act, December 31, 1965, P.L. 1257, as amended, and shall
become effective 30 days after it has been passed and shall continue
thereafter unless amended or repealed.
