[1]
Editor's Note: This ordinance amended in entirety the text
of the Emergency and Municipal Services Tax Ord. No. 2319 which had
previously amended the Occupational Privilege Tax Ord. No. 602.
The following words and phrases, when used in this article,
shall have the meanings ascribed to them in this section, except where
the context or language clearly indicates or requires a different
meaning:
The Department of Community and Economic Development of the
Commonwealth of Pennsylvania.
Compensation as this term is defined in Section 13 (relating
to earned income taxes) of the Local Tax Enabling Act, the Act of
Dec. 31, 1965, P.L. 1257, § 13, as amended, 53 P.S. § 6913,
as amended.[1]
An individual, partnership, association, limited liability
corporation, limited liability partnership, corporation, governmental
body, agency or any other entity employing one or more persons on
a salary, wage, commission or other compensation basis, including
a self-employed person.
An exemption certificate substantially in the form of the
uniform certificate prescribed by the Pennsylvania Department of Community
and Economic Development affirming that the person reasonably expects
to receive earned income and/or net profits from all sources within
the Municipality of less than $12,000 in the calendar year for which
the exemption certificate is filed, which exemption certificate has
attached to it a copy of all of the employee's last pay stubs or W-2
forms from employment within the Municipality for the year prior to
the calendar year for which the employee is requesting to be exempted
from the tax. In addition to the income exemptions, provision has
been made for certain military exemptions.
Indicates the singular and plural number, as well as male,
female and neuter genders.
Any person, male or female, engaged in any occupation, trade
or profession within the corporate limits of the political subdivision.
Emergency services; road construction and/or maintenance;
reduction of property taxes; and property tax relief through implementation
of a homestead and farmstead exclusion in accordance with 53 Pa.C.S.A.
Subch. F.[2]
The Municipality of Monroeville.
The person, public employee or private agency designated
by the political subdivision to collect and administer the tax herein
imposed.
The net income from the operation of a business, profession;
or other activity, as this term is defined in Section 13 (relating
to earned income taxes) of the Local Tax Enabling Act, the Act of
December 31, 1965, P.L. 1251, § 13, as amended, 53 P.S.
§ 6913, as amended.[3]
Any livelihood, trade, profession, business or undertaking
of any type, kind or character, including services, domestic or other,
earned on or performed within the corporate limits of the political
subdivision for which compensation is charged or received; whether
by means of salary, wages, net profits, commission or fees for services
rendered.
The area within the corporate limits of the Municipality
of Monroeville.
The calendar year before the current year.
The local services tax at the rate fixed in § 334-12 of this article.
The period from January 1 until December 31 in any year;
a calendar year.
[1]
Editor's Note: Former 53 P.S. § 6913 was repealed
by Act 32 of 2008, effective 6-30-2012. See now 53 P.S. § 6924.101
et seq. The definition of "earned income" is now in 53 P.S. § 6924.501.
[2]
Editor's Note: See 53 Pa.C.S.A. § 8581 et seq.
[3]
Editor's Note: Former 53 P.S. § 6913 was repealed
by Act 32 of 2008, effective 6-30-2012. See now 53 P.S. § 6924.101
et seq. The definition of "net profits" is now in 53 P.S. § 6924.501.
A.
For specific
revenue purposes, an annual tax is hereby levied and assessed, commencing
January 1, 2008, and continuing on a calendar basis annually thereafter,
until modified, amended, or repealed by a subsequent law and/or ordinance;
upon the privilege of engaging in an occupation with a primary place
of employment within the Municipality of Monroeville during the tax
year. Each natural person who exercises such privilege for any length
of time during any tax year shall pay the tax for that year in the
amount of $52, assessed on a pro rata basis, in accordance with the
provisions of this article.
B.
This tax
may be used solely for the following purposes as the same may be allocated
by the Municipality of Monroeville from time to time: emergency services,
which shall include emergency medical services, police services and/or
fire services; road construction and/or maintenance; reduction of
property taxes; or property tax relief through implementation of a
homestead and farmstead exclusion in accordance with 53 Pa.C.S.A.
Ch. 85, Subch. F (relating to homestead property exclusion).[1] The political subdivision shall use no less than 25% of
the funds derived from the tax for emergency services.
[1]
Editor's Note: See 53 Pa.C.S.A. § 8581 et seq.
C.
This tax
is in addition to all other taxes of any kind or nature heretofore
levied by the political subdivision. The tax shall be no more than
$52 on each person for each calendar year, irrespective of the number
of political subdivisions within which a person may be employed.
A.
Exemption. Any person whose total earned income and net profits from
all sources within the political subdivision is less than $12,000
for any calendar year in which the tax is levied is exempt from the
payment of the tax for that calendar year. In addition, the following
persons are exempt from payment of the tax:
(1)
Any person who has served in any war or armed conflict in which the
United States was engaged and is honorably discharged or released
under honorable circumstances from active service if, as a result
of military service, the person is blind, paraplegic or a double or
quadruple amputee or has a service-connected disability declared by
the United States Veterans' Administration or its successor to be
a total one-hundred-percent disability.
(2)
Any person who serves as a member of a reserve component of the armed
forces and is called to active duty at any time during the taxable
year. For the purposes of this subsection, "reserve component of the
armed forces" shall mean the United States Army Reserve, United States
Navy Reserve, United States Marine Corps Reserve, United States Coast
Guard Reserve, United States Air Force Reserve, the Pennsylvania Army
National Guard or the Pennsylvania Air National Guard.
B.
Procedure to claim exemption.
(1)
A person seeking to claim an exemption from the local services tax may annually file an exemption certificate with the political subdivision and with the person's employer affirming that the person reasonably expects to receive earned income and net profits from all sources within the political subdivision of less than $12,000 in the calendar year for which the exemption certificate is filed. In the event the political subdivision utilizes a tax collection officer, it shall provide a copy of the exemption certificate to that officer. The exemption certificate shall have attached to it a copy of all the employee's last pay stubs or W-2 forms from employment within the political subdivision for the year prior to the fiscal year for which the employee is requesting to be exempted from the tax. Upon receipt of the exemption certificate and until otherwise instructed by the political subdivision or except as required by Subsection B(2), the employer shall not withhold the tax from the person during the calendar year or the remainder of the calendar year for which the exemption certificate applies. Employers shall ensure that the exemption certificate forms are readily available to employees at all times and shall furnish each new employee with a form at the time of hiring. The exemption certificate form shall be the uniform form provided by the political subdivision.
(2)
With respect to a person who claimed an exemption for a given calendar year from the tax, upon notification to an employer by the person or by the political subdivision that the person has received earned income and net profits from all sources within the political subdivision equal to or in excess of $12,000 in that calendar year or that the person is otherwise ineligible for the tax exemption for that calendar year, or upon an employer's payment to the person of earned income within the Municipality in an amount equal to or in excess of $12,000 in that calendar year, an employer shall withhold the local services tax from the person under Subsection B(3).
(3)
If a person who claimed an exemption for a given calendar year from the tax becomes subject to the tax for the calendar year under Subsection B(2), the employer shall withhold the tax for the remainder of that calendar year. The employer shall withhold from the person, for the first payroll period after receipt of the notification under Subsection B(2), a lump sum equal to the amount of tax that was not withheld from the person due to the exemption claimed by the person under this subsection, plus the per payroll amount due for that first payroll period. The amount of tax withheld per payroll period for the remaining payroll periods in that calendar year shall be the same amount withheld for other employees. In the event the employment of a person subject to withholding of the tax under this subsection is subsequently severed in that calendar year, the person shall be liable for any outstanding balance of tax due, and the political subdivision may pursue collection under this article.
C.
Time period. Any person who has overpaid the tax may obtain a refund
by making a written application for a refund to the Collector no later
than one calendar year after payment of the tax or three years after
the due date for payment of the tax, whichever is later; provided
that said person satisfactorily proves to the Collector that the taxpayer
is entitled to the refund.
(1)
The Municipality of Monroeville, in consultation with the Municipal
Tax Collector and DCED, shall establish procedures for the processing
of refund claims for any tax paid by any person who is eligible for
exemption, which procedures shall be in accord with provisions of
the general municipal law relating to refunds of overpayments and
interest on overpayments. Refunds made within 75 days of a refund
request or 75 days after the last day the employer is required to
remit the tax for the last quarter of the calendar year, whichever
is later, shall not be subject to interest. No refunds shall be made
for amounts overpaid in a calendar year that do not exceed $1. The
Municipality of Monroeville or the Municipal Tax Collector shall determine
eligibility for exemption and provide refunds to exempt persons.
(2)
It should be noted that incomplete refund requests will be deferred
until the missing or incomplete information is provided. Refunds in
the deferred status are only subject to the accrual interest.
A.
Every employer shall, within 30 days after first becoming an employer,
register with the Tax Office the employer's name, address and such
other information as the Tax Office may require. Failure to register
in a timely manner does not relieve the employer of the requirements
of this article.
B.
Each employer within the political subdivision, as well as those
employers situated outside the political subdivision but who engage
in business within the political subdivision, is hereby charged with
the duty of collecting the tax from each of his employees engaged
by him or performing for him within the political subdivision and
making a return and payment thereof to the Municipal Tax Collector.
Further, each employer is hereby authorized to deduct: this tax for
each employee in his or her employ, whether said employee is paid
by salary, wage or commission and whether or not all such services
are performed within the political subdivision.
C.
Employers who withhold the tax from employee earnings, and the person
responsible for the transmission of the tax by a corporate employer,
shall be a fiduciary charged with all the responsibilities of a fiduciary
with respect to taxes withheld, and shall be subject to all duties
imposed by law on fiduciaries, including civil and criminal penalties
for breach of duties.
D.
A person subject to the tax shall be assessed by the employer a pro rata share of the tax for each payroll period in which the person is engaging in an occupation. The pro rata share of the tax assessed on the person for a payroll period shall be determined by dividing the rate of the tax levied for the calendar year by the number of payroll periods established by the employer for the calendar year. For purposes of determining the pro rata share, an employer shall round down the amount of the tax collected each payroll period to the nearest 1/100 of a dollar. Collection of the tax shall be made on a payroll period basis for each payroll period in which the person is engaging in an occupation, except as provided in Subsection E of this section. For purposes of this subsection, combined rate shall mean the aggregate annual rate of the tax levied by the school district and the Municipality.
E.
No person shall be subject to the payment of the local services tax
by more than one political subdivision during each payroll period.
F.
In the case of concurrent employment, an employer shall refrain from
withholding the tax if the employee provides a recent pay statement
from a principal employer that includes the name of the employer,
the length of the payroll period and the amount of the tax withheld
and a statement from the employee that the pay statement is from the
employee's principal employer and the employee will notify other employers
of a change in principal place of employment within two weeks of its
occurrence. The employee's statement shall be provided on the form
approved by DCED.
G.
The tax shall be no more than $52 on each person for each calendar
year, irrespective of the number of political subdivisions within
which a person may be employed. The political subdivision shall provide
a taxpayer a receipt of payment upon request by the taxpayer.
H.
No employer shall be held liable for failure to withhold the tax or for the payment of the withheld tax money to the political subdivision if the failure to withhold taxes arises from incorrect information submitted by the employee as to the employee's place or places of employment, the employee's principal office or where the employee is principally employed. Further, an employer shall not be liable for payment of the local services tax in an amount exceeding the amount withheld by the employer if the employer complies with the provisions of § 334-13B of this article and this section and remits the amount so withheld in accordance with this article.
(1)
A recent pay statement from a principal employer that includes the
name of the employer, the length of the payroll period and the amount
of local services tax withheld; and
(2)
A statement from the employee that the pay statement is from the
employee's principal employer and the employee will notify other employers
of a change in principal place of employment within two weeks of its
occurrence.
I.
Employers shall be required to remit the local services taxes 30
days after the end of each quarter of a calendar year. A tax return
must be filed for each calendar quarter, regardless of whether withholdings
were completed or any tax liability exists.
J.
Any employer who discontinues business or ceases operation during
the calendar year shall within 30 days after discontinuing business
or ceasing operation, file the return hereinabove required and pay
the tax to the Collector.
Each employer shall prepare and file a return showing a computation
of the tax on forms to be supplied to the employer by the Municipal
Tax Collector. If an employer fails to file the return and pay the
tax, whether or not the employer makes collection thereof from the
salary, wages or commissions paid by him or her to an employee, except
as provided hereafter in this article, the employer shall be responsible
for the payment of the tax in full as though the tax had been originally
levied against the employer.
In each tax year, each employer shall use his or her employment
records to determine the number of employees from whom such tax shall
be deducted and paid over to the Municipal Tax Collector on or before
the 30th day following the end of each calendar quarter of each such
tax year.
Each self-employed individual who performs services of any type
or kind or engages in any occupation or profession within a primary
place of employment within the political subdivision shall be required
to comply with this article and pay the pro rata portion of the tax
due to the Municipal Tax Collector on or before the 30th day following
the end of each quarter. The pro rata share of the tax assessed on
a taxpayer for a calendar quarter shall be determined by dividing
the rate of the tax levied, $52 for the calendar year, by four.
A check endorsement shall not qualify as a refund claim. The
words "Paid Under Protest" handwritten, typed or otherwise placed
on a taxpayer's check or money order, or the check or money order
of an employer, shall not qualify as a refund claim as the words are
not sufficient to appraise the Tax Collector's personnel of the taxpayer's
intent to seek a refund or of the substance of their claim, or of
facts sufficient to permit the Tax Collector to undertake an investigation
of the person's claim. If a court of competent jurisdiction thereafter
decides that there has been overpayment to the Tax Collector, the
Tax Collector shall refund the amount of the overpayment to the person
who paid under protest. Refunds shall be made only pursuant to approval
of the Monroeville Municipal Council.
A.
Local taxes withheld from employee wages by an employer or business
entity or corporation are held in trust for the taxing authority and
its Tax Collector, even in the event of a bankruptcy; said funds withheld
shall not be the "property of the bankrupt estate." Said withheld
taxes shall not be commingled in the employer's general cash or other
accounts.
B.
Failure to remit or administer.
(1)
Trustee ex maleficio. One who collects the tax as agent for the taxing
authority or the taxing authority's Tax Collector and fails to pay
same over to the appointed collector for the taxing authority is a
trustee ex maleficio.
(2)
Businesses and corporations must act through individuals and where
such individuals are the acting and controlling officers and agents
of the corporation or business, and they fail to administer the trust
responsibilities, liabilities are imposed upon the individuals who
are responsible for the performance of the trust duty.
(3)
Liabilities of corporations and officers. Where a corporation does
not remit the tax withheld from its employees and subsequently is
dissolved in bankruptcy, the corporate officers shall be held personally
liable, jointly or severally, for the payment of the tax withheld.
C.
The employer, the business, or the corporation shall not characterize
the tax withheld simply as creating a debtor-creditor relationship
between the employer, business or corporation and the Municipality
of Monroeville as collector for the taxing authority. Therefore the
employer, business or corporation is the conduit for its employees'
tax payments. Consequently, these taxes are withheld in "express trust"
or in "constructive trust" for the taxing authority and its collector
of these taxes.
D.
Lowest intermediate balance test (L.I.B.T.). This is a judicial test
which the Tax Collector will apply to ease the burden of the beneficiary
(the Tax Collector) to trace the funds if or when a trustee commingles
trust funds due to the Municipality of Monroeville with other monies
in a single account. The L.I.B.T. allows trust beneficiaries to assume
that trust funds are withheld last from a commingled account. Therefore,
the lowest intermediate balance in an account represents trust funds
that have never been dissipated and which are reasonably identifiable.
The Municipality of Monroeville will take the position that the Court
will keep in mind a broad policy against allowing a party unilaterally
to make a trust unenforceable by commingling assets. Also, in the
event of a bankruptcy filing the L.I.B.T. is intended to provide a
method for the Tax Collector to demonstrate that amounts of withheld
taxes were/are still in the possession of the debtor at the commencement
of the case.
E.
Interlocking business entities. A company that maintains separate
payrolls for its employees on a separate checking account or general
ledger system and reported to the Tax Collector that it has withheld
payroll tax from its employees shall be liable for the tax, plus penalty,
plus interest, when the tax has not been remitted to the Tax Collector.
The situs of the tax shall be the place of employment on the
first day the person becomes subject to the tax during each payroll
period. In the event a person is engaged in more than one occupation,
that is, concurrent employment, or an occupation which requires the
person working in more than one political subdivision during a payroll
period, the priority of claim to collect the local services tax shall
be in the following order:
A.
First, the political subdivision in which a person maintains his
or her principal office or is principally employed;
B.
Second, the political subdivision in which the person resides and
works if the tax is levied by that political subdivision;
C.
Third, the political subdivision in which a person is employed and
which imposes the tax nearest in miles to the person's home. In case
of dispute, a tax receipt of the taxing authority for that calendar
year declaring that the taxpayer has made prior payment constitutes
prima facie certification of payment to all other political subdivisions.
All employers and self-employed individuals residing or having
their places of business outside of the political subdivision but
who perform services of any type or kind or engage in any occupation
or profession within the political subdivision do, by virtue thereof,
agree to be bound by and subject themselves to the provisions, penalties
and regulations promulgated under this article with the same force
and effect as though they were residents of the political subdivision.
Further, any individual engaged in an occupation within the political
subdivision and an employee of a nonresidential employer may, for
the purpose of this article, be considered a self-employed person,
and, in the event his or her tax is not paid, the political subdivision
shall have the option of proceeding against either the employer or
employee for the collection of this tax as hereinafter provided.
A.
The Municipal Tax Collector shall be appointed by resolution of the
political subdivision. It shall be the duty of the Municipal Tax Collector
to accept and receive payments of this tax and to keep a record thereof
showing the amount received by him from each employer or self-employed
person, together with the date the tax was received.
B.
The Municipal Tax Collector is hereby charged with the administration
and enforcement of this article and is hereby charged and empowered,
subject to Municipal approval, 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 examination
of payroll records of any employer subject to this article, the examination
and correction of any return made in compliance with this article
and any payment alleged or found to be incorrect or as to which overpayment
is claimed or found to have occurred. Any person aggrieved by any
decision of the Municipal Tax Collector shall have the right to appeal
consistent with the Local Taxpayers Bill of Rights under Act 50 of
1998. (Municipalities may detail their appeal processes.)
C.
The Municipal Tax Collector is hereby authorized to examine the books
and payroll records of any employer in order to verify the accuracy
of any return made by an employer or, if no return was made, to ascertain
the tax due. Each employer is hereby directed and required to give
the Municipal Tax Collector the means, facilities and opportunity
for such examination. Any such examination shall be conducted within
this Municipality or at the office where the tax return is processed.
D.
All employers who have a place of business located within the Taxing
Authority shall maintain complete records of all employees for a period
of six years in such form as to enable the Tax Collector to determine
the employers' liability to withhold for each employee, the actual
amount withheld, the actual amount transmitted to the Tax Collector
and such other information available to such employers as will enable
the Tax Collector to carry out its responsibilities.
E.
The limitations set forth in Subsection B should not prevent the institution of a suit for the collection of any tax due or determined to be due in the following cases:
F.
If as a result of research or investigation conducted by or on behalf
of the Tax Collector, a declaration or return is found or is reasonably
believed to be incorrect, the Tax Collector is authorized to assess
and collect underpayments of taxes withheld at the source, or any
underpayments of tax owed by any employer or taxpayer with respect
to the tax. If no declaration or return has been filed and a tax is
found or determined to be due, the tax actually due may be assessed
and collected without the formality of obtaining a delinquent declaration
or return from the employer or taxpayer.
G.
Hearings/meetings. Any person aggrieved by an assessment made by
the Tax Collector may, within 30 days after receipt of notice of the
assessment, appeal the assessment by forwarding a letter to the Tax
Collector stating in detail why the taxpayer believes the assessment
to be incorrect and including documentation to support the appellant's
position. A meeting or hearing will be arranged within 30 days of
the receipt of the appeal notice, unless both parties consent to a
continuance. The appeal meeting or hearing may be recorded at the
decision of the Tax Collector. A decision on the appeal shall be rendered
by the Tax Collector within 30 days of the close of the meeting or
hearing, unless both parties agree to an extension to render a determination.
The person aggrieved may also properly file all applicable returns
and provide all needed supporting documentation if this was not previously
done by the aggrieved person. This may also permit promptly amending
the assessment to the satisfaction of both parties.
H.
Administrative review procedure. Upon receipt of a written request
for an administrative review (hereinafter referred to as "the review"),
the review will be scheduled within 30 days from the date such request
is received by the Tax Collector.
(1)
The review may be recorded at the option of the Tax Collector,
and the appellant may be required to provide verification that all
factual information presented, including oral statements, is true,
correct and complete to the best of their knowledge and belief. If
a record is made of the review, the appellant may obtain a copy of
the record by paying a fee equal to 50% of all costs incurred in the
preparation and transcription of the record.
(2)
The purpose of the review shall include, but not be limited
to a review of all documents, data and records produced by the appellant
and an opportunity for the appellant to explain his or her position
and be heard on issues directly relating to the filing of the tax
return and payment of taxes. The Tax Collector, or his authorized
representative, shall have ample opportunity to make such inquiries
of the appellant as will enable the Tax Collector to fully understand
the appellant's information and documents and to make other inquiries
as may be appropriate in examining and understanding the appellant's
position.
(3)
The appellant shall file with the Tax Collector the properly
completed and signed proposed tax returns for each tax year in question
and such returns, along with any supporting data and documents, shall
be reviewed. A reasonable effort shall be made to reach a fair and
equitable accommodation with the appellant. In the event this cannot
be done, the Tax Collector, after a review of all the data and records
submitted and of the record of the hearing, shall make such determination
as he believes in his opinion to be appropriate and notify the appellant
of his determination in writing, which shall be sent to the appellant
at the appellant's last known address by ordinary mail and which shall
then become the appellant's formal notice of the appellant's tax liability
as of the date of that determination.
A.
In the event that any tax under this article remains due or unpaid
30 days after the due dates above set forth, the Municipal Tax Collector
may sue for the recovery of any such tax due or unpaid under this
article, together with interest and penalty and costs of collection
as prescribed by Ordinance No. 2374, as amended.[1]
B.
If for any reason the tax is not paid when due, interest at the rate
of 6% on the amount of such tax shall be calculated beginning with
the due date of the tax and a penalty of 5% shall be added to the
flat rate of such tax for nonpayment thereof. Where suit is brought
for the recovery of this tax or other appropriate remedy undertaken,
the individual liable therefor shall, in addition, be responsible
and liable for the costs of collection.
C.
The failure of a taxpayer to receive a tax return does not relieve
their filing or payment responsibility.
Whoever makes any false or untrue statement on any return required
by this article, or whoever fails, neglects, or refuses to make a
return required, any employer who fails, neglects or refuses to register
or to pay the tax deducted from employees, or fails, neglects, or
refuses to deduct or withhold the tax from employees or whoever refuses
inspection of the books, records or accounts in his or her custody
and control setting forth the number of employees subject to this
tax who are in his or her employment, or whoever fails or refuses
to file any return required by this article shall be guilty of a violation
and, upon conviction thereof, shall be sentenced to pay a fine of
not more than $600 and costs of prosecution, and, in default of payment
of such fine and costs, to imprisonment for not more than 30 days.
The action to enforce the penalty herein prescribed may be instituted
against any person in charge of the business of any employer who shall
have failed or who refuses to file a return required by this article.
A.
Nothing contained in this article shall be construed to empower the
political subdivision to levy and collect the tax hereby imposed on
any occupation not within the taxing power of the political subdivision
under the Constitution of the United States and the laws of the Commonwealth
of Pennsylvania.
B.
If the tax hereby imposed under the provisions of this article shall
be held by any court of competent jurisdiction to be in violation
of the Constitution of the United States or of the laws of the Commonwealth
of Pennsylvania as to any individual, the decision of the court shall
not affect or impair the right to impose or collect said tax or the
validity of the tax so imposed on other persons or individuals as
herein provided.
