[Adopted 12-27-1989 by Ord. No. 260[1] (Ch. 134, Art. VI, of the 1982 Code)]
[1]
Editor's Note: This ordinance superseded the
business privilege tax adopted 7-18-1988 by Ord. No. 248, as amended.
This article shall be known and may be cited
as the "Business Privilege Tax Ordinance of the Township of Muhlenberg,
Berks County, Pennsylvania."
The following words and phrases, as used in
this article, shall have the meanings ascribed to them in this section:
Any activity carried on or exercised with the intent for
gain or profit in the Township of Muhlenberg, 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. As to those
taxpayers having their principal place of business within the Township
of Muhlenberg, "business" shall include all activities carried on
within the Township of Muhlenberg as well as those carried on outside
of the Township of Muhlenberg. As to those taxpayers having a place
of business other than a principal one within the Township of Muhlenberg,
"business" shall include all activities carried on within the Township
of Muhlenberg and those carried on outside of the Township of Muhlenberg
attributable to the place of business within the Township of Muhlenberg.
The period from January 1 to December 31, inclusive.
Any person owning or leasing land, buildings or personal
property to any person or persons for the purpose of allowing said
person or persons to operate any stand for the sale of goods or services
which shall be seasonal, temporary or itinerant by nature.
The period from January 1 to December 31, inclusive.
The application of skill and labor to the original substance
or material whereby the original substance or material is changed
into a new, different and useful article.
Any individual, partnership, limited partnership, association,
firm or corporation. Whenever used in any clause describing 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 and directors thereof.
The person duly appointed by the Board of Commissioners of
the Township of Muhlenberg to administer and collect 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.
The Township of Muhlenberg, Berks County, Pennsylvania.
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 commencing
January 1, 1990, and annually thereafter, without reenactment, a tax
for general revenue purposes on the privilege of engaging in business
in the Township of Muhlenberg, Berks County, Pennsylvania, as follows.
The rate of the tax on each and every dollar
of the whole or gross volume of business transacted shall be 1 1/2
mills, that is $1.50 per $1,000, except that the gross volume of business
transacted by wholesale dealers or wholesale vendors shall be one
mill, that is $1 per $1,000 of gross volume of business. All non-wholesale
business of such wholesale dealers or wholesale vendors shall be taxed
at the general rate of 1 1/2 mills.
A.
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.
B.
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 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 volume 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.
C.
Every person subject
to the payment of the tax hereby imposed who engages in a business
temporary, seasonal or itinerant by nature shall compute his 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 Township by a method to be determined by the Tax Administrator.
D.
Any flea market
and/or transient show operator who shall promote or allow the operation
of any stands for the sale of any product or service shall:
(1)
Collect and
pay over to the Township the business privilege tax license fee of
$10 for each person operating any stand.
(2)
Supply to
the Township a list of all persons operating any stand, which list
shall include the name, address, telephone number, social security
number, employer identification number and motor vehicle operator's
number.
E.
The Tax Administrator
is hereby authorized to accept payment under protest of the amount
of business privilege tax claimed by the Township in any case where
the taxpayer disputes the validity or amount of the Township's claim
for tax. If it is thereafter judicially determined by a court of competent
jurisdiction that the Township has been over paid, the amount of the
over payment 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.
F.
Payments made
under the mercantile license tax for business to which this tax is
applicable shall be credited to this tax and vice versa.
Gross or whole volume 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:
A.
The dollar volume
of business transacted by wholesale and retail dealers derived from
the resale of goods, wares and merchandise taken by any dealer as
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.
B.
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.
C.
Taxes collected
as agent for the United States of America, Commonwealth of Pennsylvania,
or the Township of Muhlenberg.
A.
Persons and businesses.
Persons employed for a wage or salary and corporations or associations
organized for religious, charitable, educational, social or civic
purposes who shall provide evidence of qualification of tax-exempt
status under Section 501 of the Internal Revenue Code, agencies of
the government of the United States of America, 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.
B.
No such tax shall
be assessed or 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 commonwealth and/or Supreme Court of Pennsylvania
to be the basis for exemption from the imposition of a business privilege
tax by a political subdivision.
C.
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.
D.
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.
E.
Production and
manufacturing. 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 Township of Muhlenberg or on the preparation or processing
thereof for use or market, or on any privilege, act or transaction
relating to the business of manufacturing or 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.
When 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 Board of Commissioners of the Township of Muhlenberg, shall
establish rules and regulations and methods of allocation and evaluations,
so that only that part of the gross or whole volume of business which
is properly attributable and allowable to doing business in the Township
shall be taxable hereunder.
[Added 11-15-2004 by Res. No. 2004-37]
A.
Preamble: Under
certain circumstances receipts from sales in interstate or foreign
commerce may be exempt from tax in whole or in part even though they
are allocable to a place of business in the Township and receipts
are not automatically exempt from tax merely because the sale involves
interstate or foreign commerce. The controlling principles in determining
whether any such receipts are subject to tax are that there be some
nexus between the business activity carried on in the Township and
the imposition of the tax and that there be a fair method of allocation
of receipts to the business carried on in the Township, which will
avoid an undue burden on interstate commerce, and the burden is generally
on the taxpayer to establish that the receipts are exempt from tax.
B.
The following
methods of allocation will be followed by the Township:
(1)
Receipts directly
payable or paid to a place of business located within the Township
shall be considered allocable to the Township and subject to tax.
(2)
If the Administrator determines, either upon his own initiative or upon application by the taxpayer, that the receipts covered by Subsection B(1) above do not properly reflect all receipts attributable to the activity carried on in the Township, then to the extent possible (bearing in mind the accounting system used by the taxpayer and any other information reasonably capable of being derived from the books and records of the taxpayer), a separate accounting shall be made with respect to each place of business, and all receipts attributable to the place of business in the Township shall be considered allocable to the Township and subject to tax.
(3)
If the Administrator determines, either on his own initiative or upon application by the taxpayer, that the provisions of Subsection B(1) and (2) above do not properly reflect all receipts attributable to the activity carried on in the Township, a different method of allocation may be used with due regard to the extent of the receipts, property and wages of the taxpayer within the Township, the nature of the business concerned, the number of jurisdictions in which the receipts may be taxed, and such other factors as may be considered relevant.
(4)
All receipts
from interstate commerce, whether taxable or nontaxable under the
foregoing rules, must be included on the return filed by the taxpayer,
and a deduction for the nontaxable receipts shall be allowed thereon.
C.
Any taxpayer,
or prospective taxpayer, may request from the Township a written determination
as to the taxability of its receipts. In order to obtain such a determination,
a taxpayer must file with the Township a written request for tax determination,
identifying itself and supplying all information requested by the
Township to determine the taxability of the taxpayer.
The taxpayer shall keep books and records of
his business to show clearly, accurately and separately the gross
volume of business and such amounts as set forth by the taxpayer to
be excluded or exempted from the tax as hereinbefore provided.
A.
Every return
shall be made on 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
his or her federal income tax return for his or her prior tax year(s)
to substantiate the whole or gross volume of business reported. Exemptions
or exclusions shall be supported by appropriate documents attached
to the return.
B.
Every person
subject to the tax imposed by this article who has commenced business
at least one full year prior to the beginning of the tax year shall,
on or before April 15 of the tax year, file with the Township a return
setting forth such person's name, business and business address and
such other information as may be necessary to compute the actual gross
volume of business transacted by such person during the preceding
year and the amount of tax estimated to be due for the tax year.
C.
Every person
subject to the tax imposed by this article who has commenced business
less than one full year prior to the beginning of the tax year shall,
on or before April 15 of the tax year, file with the Township a return
setting forth such person's name, business and business address and
such other information as may be necessary to compute the actual gross
volume of business transacted by such person during the preceding
year and the amount of tax estimated to be due for the tax year.
D.
Every person
subject to the tax imposed by this article who commences business
subsequent to the beginning of the tax year shall, within 105 days
from the date of commencing such business, file with the Township
a return setting forth such person's name, business and business address
and such other information as may be necessary to compute the actual
gross volume of business transacted by such person during the first
month of business and the amount of tax estimated to be due for the
tax year.
E.
Every person
subject to the tax imposed by this article who engages in a business
which is temporary, seasonal or itinerant by its nature shall, within
seven days from the date of commencement of such business, file with
the Township a return setting forth such person's name, business and
business address and such other information as may be necessary in
arriving at the actual gross amount of business transacted by such
person during such period and the amount of tax estimated to be due
for the tax year.
F.
Any person going
out of or ceasing to do business in the Township of Muhlenberg 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.
G.
Upon satisfactory
evidence of extension to file federal income tax report, the period
of time for filing the business privilege tax return shall be extended
to June 15, without imposition of penalty for failure to file the
return.
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 first return setting forth the taxpayer's
estimated tax and, if the same is not filed or paid on said date,
a 10% penalty shall be added thereto, in addition to interest on said
amount at the rate of 1% per month or fractional part thereof, thereafter
until paid in full.
[Amended 12-20-2004 by Ord. No. 402]
After the effective date of this article, any
person desiring to engage in business within the Township of Muhlenberg
shall file with the Township of Muhlenberg an application for business
privilege license on or before February 15 and shall pay a fee of
$35. Any license fee not paid on or before February 15 of each year
shall be increased to $50 for the additional costs of administration.
The business privilege license issued shall
be conspicuously posted in the place of business for which such license
is issued and shall remain in effect for the license year or fraction
thereof for which said license was issued. In cases where more than
one place of business is conducted, a separate license shall be issued,
without additional cost, for each such licensed business. Any taxpayer
who is in default of any tax due hereunder shall be refused a license
until such tax, together with penalty and interest thereon, is paid
in full.
A.
Any person who
shall engage in any business subject to the tax imposed by this article
without having first secured a business privilege license for the
tax year or any person who shall fail to file a tax return or fail
to pay estimated or final tax, as computed and as required by the
provisions of this article, or any person who shall willfully file
a false return shall, upon summary conviction before any Magisterial
District Judge of the County of Berks, be sentenced to pay a fine
not to exceed the sum of $600 for any one offense, together with costs,
or imprisonment not exceeding 90 days if the amount of said fine and
costs should not be paid.
B.
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.
C.
This penalty
shall be in addition to all other penalties and interest as may be
set forth herein.
A.
The Tax Administrator
is charged with the duties of collecting and receiving the taxes,
fines and penalties imposed by this article. It shall be the Tax Administrator's
duty to keep a record showing the amount received from each person
paying the tax and the date of each receipt.
B.
The Tax Administrator,
under the direction of the Board of Commissioners of the Township
of Muhlenberg, is hereby empowered 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
and correction of returns and payments alleged or found to be incorrect
or as to which an overpayment is 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 subject to the tax imposed by this article neglects
or fails or refuses to make a return, then, in such case, the Tax
Administrator shall assess said person on such an amount of whole
or gross volume of business as the Tax Administrator shall deem reasonable
and appropriate. In all cases of assessment, the Tax Administrator
shall give the person assessed a notice, in which shall be stated
the trade, business, privilege, occupation or class and amount of
business privilege tax imposed or levied.
D.
The taxpayer
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 accounts and records must be disclosed in detail,
including 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 to verify all transactions. The Tax Administrator
is hereby authorized to examine the books, papers and records of any
person or persons subject to or supposed to be subject to the tax
imposed by this article in order to verify the accuracy of the return
made or, if no return is made, to ascertain the tax due.
Any information gained by the Tax Administrator
or any other official, agent or employee of the Township of Muhlenberg
as a result of any return or investigation herein 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
shall have the power in the name of the Township 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, together with penalty and interest thereon, the person
liable therefor shall be liable for the costs of collection, interest
and penalties and tax.
A.
Nothing contained
in this article shall be construed to empower the Township 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
Township under the Constitution of the United States of America and
the statutes and 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 jurisdiction
to be in violation of the Constitution of the United States of America
or the Commonwealth of Pennsylvania or any other provision of the
law, the decision of the court shall not affect or impair the right
to impose the taxes or any portion thereof or the validity of the
taxes or any portion thereof so imposed upon such person or other
persons as herein provided.
A.
This article
is adopted under the authority of the Act of December 31, 1965, P.L.
511, and its amendments, known as the "Local Tax Enabling Act." This
article is intended as a continuation and a reenactment of the ordinance
originally adopted by the Board of Commissioners of the Township of
Muhlenberg, and it shall not be deemed a new enactment.
B.
The adoption
of this article shall not affect any act done, liability incurred,
right accrued or vested nor affect any suit or prosecution pending
or to be instituted to enforce any right or penalty or to punish any
offense under the authority of this article adopted by the Board of
Commissioners of Muhlenberg Township. This article shall be effective
immediately upon enactment.
