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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY MANN, BOYD, DENLINGER, HARKINS, HORNAMAN, MURT AND SIPTROTH, MAY 12, 2009 |
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| REFERRED TO COMMITTEE ON FINANCE, MAY 12, 2009 |
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| AN ACT |
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1 | Amending the act of March 4, 1971 (P.L.6, No.2), entitled "An |
2 | act relating to tax reform and State taxation by codifying |
3 | and enumerating certain subjects of taxation and imposing |
4 | taxes thereon; providing procedures for the payment, |
5 | collection, administration and enforcement thereof; providing |
6 | for tax credits in certain cases; conferring powers and |
7 | imposing duties upon the Department of Revenue, certain |
8 | employers, fiduciaries, individuals, persons, corporations |
9 | and other entities; prescribing crimes, offenses and |
10 | penalties," in sales and use tax, further providing for |
11 | definitions. |
12 | The General Assembly of the Commonwealth of Pennsylvania |
13 | hereby enacts as follows: |
14 | Section 1. Section 201(g)(6), (k), (o), (bb) and (cc) of the |
15 | act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code |
16 | of 1971, amended or added August 4, 1991 (P.L.97, No.22), |
17 | December 13, 1991 (P.L.373, No.40), May 7, 1997 (P.L.85, No.7), |
18 | April 23, 1998 (P.L.239, No.45) and June 29, 2002 (P.L.559, |
19 | No.89), are amended to read: |
20 | Section 201. Definitions.--The following words, terms and |
21 | phrases when used in this Article II shall have the meaning |
22 | ascribed to them in this section, except where the context |
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1 | clearly indicates a different meaning: |
2 | * * * |
3 | (g) "Purchase price." |
4 | * * * |
5 | [(6) The purchase price of employment agency services and |
6 | help supply services shall be the service fee paid by the |
7 | purchaser to the vendor or supplying entity. The term "service |
8 | fee," as used in this subclause, shall be the total charge or |
9 | fee of the vendor or supplying entity minus the costs of the |
10 | supplied employe which costs are wages, salaries, bonuses and |
11 | commissions, employment benefits, expense reimbursements and |
12 | payroll and withholding taxes, to the extent that these costs |
13 | are specifically itemized or that these costs in aggregate are |
14 | stated in billings from the vendor or supplying entity. To the |
15 | extent that these costs are not itemized or stated on the |
16 | billings, then the service fee shall be the total charge or fee |
17 | of the vendor or supplying entity.] |
18 | * * * |
19 | (k) "Sale at retail." |
20 | (1) Any transfer, for a consideration, of the ownership, |
21 | custody or possession of tangible personal property, including |
22 | the grant of a license to use or consume whether such transfer |
23 | be absolute or conditional and by whatsoever means the same |
24 | shall have been effected. |
25 | (2) The rendition of the service of printing or imprinting |
26 | of tangible personal property for a consideration for persons |
27 | who furnish, either directly or indirectly the materials used in |
28 | the printing or imprinting. |
29 | (3) The rendition for a consideration of the service of-- |
30 | (i) Washing, cleaning, waxing, polishing or lubricating of |
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1 | motor vehicles of another, whether or not any tangible personal |
2 | property is transferred in conjunction therewith; and |
3 | (ii) Inspecting motor vehicles pursuant to the mandatory |
4 | requirements of "The Vehicle Code." |
5 | (4) The rendition for a consideration of the service of |
6 | repairing, altering, mending, pressing, fitting, dyeing, |
7 | laundering, drycleaning or cleaning tangible personal property |
8 | other than wearing apparel or shoes, or applying or installing |
9 | tangible personal property as a repair or replacement part of |
10 | other tangible personal property except wearing apparel or shoes |
11 | for a consideration, whether or not the services are performed |
12 | directly or by any means other than by coin-operated self- |
13 | service laundry equipment for wearing apparel or household goods |
14 | and whether or not any tangible personal property is transferred |
15 | in conjunction therewith, except such services as are rendered |
16 | in the construction, reconstruction, remodeling, repair or |
17 | maintenance of real estate: Provided, however, That this |
18 | subclause shall not be deemed to impose tax upon such services |
19 | in the preparation for sale of new items which are excluded from |
20 | the tax under clause (26) of section 204, or upon diaper |
21 | service. |
22 | (8) Any retention of possession, custody or a license to use |
23 | or consume tangible personal property or any further obtaining |
24 | of services described in subclauses (2), (3) and (4) of this |
25 | clause pursuant to a rental or service contract or other |
26 | arrangement (other than as security). |
27 | The term "sale at retail" shall not include (i) any such |
28 | transfer of tangible personal property or rendition of services |
29 | for the purpose of resale, or (ii) such rendition of services or |
30 | the transfer of tangible personal property including, but not |
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1 | limited to, machinery and equipment and parts therefor and |
2 | supplies to be used or consumed by the purchaser directly in the |
3 | operations of-- |
4 | (A) The manufacture of tangible personal property. |
5 | (B) Farming, dairying, agriculture, horticulture or |
6 | floriculture when engaged in as a business enterprise. The term |
7 | "farming" shall include the propagation and raising of ranch |
8 | raised fur-bearing animals and the propagation of game birds for |
9 | commercial purposes by holders of propagation permits issued |
10 | under 34 Pa.C.S. (relating to game) and the propagation and |
11 | raising of horses to be used exclusively for commercial racing |
12 | activities. |
13 | (C) The producing, delivering or rendering of a public |
14 | utility service, or in constructing, reconstructing, remodeling, |
15 | repairing or maintaining the facilities which are directly used |
16 | in producing, delivering or rendering such service. |
17 | (D) Processing as defined in clause (d) of this section. |
18 | The exclusions provided in paragraphs (A), (B), (C) and (D) |
19 | shall not apply to any vehicle required to be registered under |
20 | The Vehicle Code, except those vehicles used directly by a |
21 | public utility engaged in business as a common carrier; to |
22 | maintenance facilities; or to materials, supplies or equipment |
23 | to be used or consumed in the construction, reconstruction, |
24 | remodeling, repair or maintenance of real estate other than |
25 | directly used machinery, equipment, parts or foundations |
26 | therefor that may be affixed to such real estate. |
27 | The exclusions provided in paragraphs (A), (B), (C) and (D) |
28 | shall not apply to tangible personal property or services to be |
29 | used or consumed in managerial sales or other nonoperational |
30 | activities, nor to the purchase or use of tangible personal |
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1 | property or services by any person other than the person |
2 | directly using the same in the operations described in |
3 | paragraphs (A), (B), (C) and (D) herein. |
4 | The exclusion provided in paragraph (C) shall not apply to |
5 | (i) construction materials, supplies or equipment used to |
6 | construct, reconstruct, remodel, repair or maintain facilities |
7 | not used directly by the purchaser in the production, delivering |
8 | or rendition of public utility service, (ii) construction |
9 | materials, supplies or equipment used to construct, reconstruct, |
10 | remodel, repair or maintain a building, road or similar |
11 | structure, or (iii) tools and equipment used but not installed |
12 | in the maintenance of facilities used directly in the |
13 | production, delivering or rendition of a public utility service. |
14 | The exclusions provided in paragraphs (A), (B), (C) and (D) |
15 | shall not apply to the services enumerated in clauses (k)(11) |
16 | through (18) and (w) through (kk), except that the exclusion |
17 | provided in this subclause for farming, dairying and agriculture |
18 | shall apply to the service enumerated in clause (z). |
19 | (9) Where tangible personal property or services are |
20 | utilized for purposes constituting a "sale at retail" and for |
21 | purposes excluded from the definition of "sale at retail," it |
22 | shall be presumed that such tangible personal property or |
23 | services are utilized for purposes constituting a "sale at |
24 | retail" and subject to tax unless the user thereof proves to the |
25 | department that the predominant purposes for which such tangible |
26 | personal property or services are utilized do not constitute a |
27 | "sale at retail." |
28 | (10) The term "sale at retail" with respect to "liquor" and |
29 | "malt or brewed beverages" shall include the sale of "liquor" by |
30 | any "Pennsylvania liquor store" to any person for any purpose, |
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1 | and the sale of "malt or brewed beverages" by a "manufacturer of |
2 | malt or brewed beverages," "distributor" or "importing |
3 | distributor" to any person for any purpose, except sales by a |
4 | "manufacturer of malt or brewed beverages" to a "distributor" or |
5 | "importing distributor" or sales by an "importing distributor" |
6 | to a "distributor" within the meaning of the "Liquor Code." The |
7 | term "sale at retail" shall not include any sale of "malt or |
8 | brewed beverages" by a "retail dispenser" or any sale of |
9 | "liquor" or "malt or brewed beverages" by a person holding a |
10 | "retail liquor license" within the meaning of and pursuant to |
11 | the provisions of the "Liquor Code," but shall include any sale |
12 | of "liquor" or "malt or brewed beverages" other than pursuant to |
13 | the provisions of the "Liquor Code." |
14 | (11) The rendition for a consideration of lobbying services. |
15 | (12) The rendition for a consideration of adjustment |
16 | services, collection services or credit reporting services. |
17 | (13) The rendition for a consideration of secretarial or |
18 | editing services. |
19 | (14) The rendition for a consideration of disinfecting or |
20 | pest control services, building maintenance or cleaning |
21 | services. |
22 | [(15) The rendition for a consideration of employment agency |
23 | services or help supply services.] |
24 | (17) The rendition for a consideration of lawn care service. |
25 | (18) The rendition for a consideration of self-storage |
26 | service. |
27 | (19) The rendition for a consideration of a mobile |
28 | telecommunications service. |
29 | * * * |
30 | (o) "Use." |
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1 | (1) The exercise of any right or power incidental to the |
2 | ownership, custody or possession of tangible personal property |
3 | and shall include, but not be limited to transportation, storage |
4 | or consumption. |
5 | (2) The obtaining by a purchaser of the service of printing |
6 | or imprinting of tangible personal property when such purchaser |
7 | furnishes, either directly or indirectly, the articles used in |
8 | the printing or imprinting. |
9 | (3) The obtaining by a purchaser of the services of (i) |
10 | washing, cleaning, waxing, polishing or lubricating of motor |
11 | vehicles whether or not any tangible personal property is |
12 | transferred to the purchaser in conjunction with such services, |
13 | and (ii) inspecting motor vehicles pursuant to the mandatory |
14 | requirements of "The Vehicle Code." |
15 | (4) The obtaining by a purchaser of the service of |
16 | repairing, altering, mending, pressing, fitting, dyeing, |
17 | laundering, drycleaning or cleaning tangible personal property |
18 | other than wearing apparel or shoes or applying or installing |
19 | tangible personal property as a repair or replacement part of |
20 | other tangible personal property other than wearing apparel or |
21 | shoes, whether or not the services are performed directly or by |
22 | any means other than by means of coin-operated self-service |
23 | laundry equipment for wearing apparel or household goods, and |
24 | whether or not any tangible personal property is transferred to |
25 | the purchaser in conjunction therewith, except such services as |
26 | are obtained in the construction, reconstruction, remodeling, |
27 | repair or maintenance of real estate: Provided, however, That |
28 | this subclause shall not be deemed to impose tax upon such |
29 | services in the preparation for sale of new items which are |
30 | excluded from the tax under clause (26) of section 204, or upon |
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1 | diaper service: And provided further, That the term "use" shall |
2 | not include-- |
3 | (A) Any tangible personal property acquired and kept, |
4 | retained or over which power is exercised within this |
5 | Commonwealth on which the taxing of the storage, use or other |
6 | consumption thereof is expressly prohibited by the Constitution |
7 | of the United States or which is excluded from tax under other |
8 | provisions of this article. |
9 | (B) The use or consumption of tangible personal property, |
10 | including but not limited to machinery and equipment and parts |
11 | therefor, and supplies or the obtaining of the services |
12 | described in subclauses (2), (3) and (4) of this clause directly |
13 | in the operations of-- |
14 | (i) The manufacture of tangible personal property. |
15 | (ii) Farming, dairying, agriculture, horticulture or |
16 | floriculture when engaged in as a business enterprise. The term |
17 | "farming" shall include the propagation and raising of ranch- |
18 | raised furbearing animals and the propagation of game birds for |
19 | commercial purposes by holders of propagation permits issued |
20 | under 34 Pa.C.S. (relating to game) and the propagation and |
21 | raising of horses to be used exclusively for commercial racing |
22 | activities. |
23 | (iii) The producing, delivering or rendering of a public |
24 | utility service, or in constructing, reconstructing, remodeling, |
25 | repairing or maintaining the facilities which are directly used |
26 | in producing, delivering or rendering such service. |
27 | (iv) Processing as defined in subclause (d) of this section. |
28 | The exclusions provided in subparagraphs (i), (ii), (iii) and |
29 | (iv) shall not apply to any vehicle required to be registered |
30 | under The Vehicle Code except those vehicles directly used by a |
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1 | public utility engaged in the business as a common carrier; to |
2 | maintenance facilities; or to materials, supplies or equipment |
3 | to be used or consumed in the construction, reconstruction, |
4 | remodeling, repair or maintenance of real estate other than |
5 | directly used machinery, equipment, parts or foundations |
6 | therefor that may be affixed to such real estate. The exclusions |
7 | provided in subparagraphs (i), (ii), (iii) and (iv) shall not |
8 | apply to tangible personal property or services to be used or |
9 | consumed in managerial sales or other nonoperational activities, |
10 | nor to the purchase or use of tangible personal property or |
11 | services by any person other than the person directly using the |
12 | same in the operations described in subparagraphs (i), (ii), |
13 | (iii) and (iv). |
14 | The exclusion provided in subparagraph (iii) shall not apply |
15 | to (A) construction materials, supplies or equipment used to |
16 | construct, reconstruct, remodel, repair or maintain facilities |
17 | not used directly by the purchaser in the production, delivering |
18 | or rendition of public utility service or (B) tools and |
19 | equipment used but not installed in the maintenance of |
20 | facilities used directly in the production, delivering or |
21 | rendition of a public utility service. |
22 | The exclusion provided in subparagraphs (i), (ii), (iii) and |
23 | (iv) shall not apply to the services enumerated in clauses (o) |
24 | (9) through (16) and (w) through (kk), except that the exclusion |
25 | provided in subparagraph (ii) for farming, dairying and |
26 | agriculture shall apply to the service enumerated in clause (z). |
27 | (5) Where tangible personal property or services are |
28 | utilized for purposes constituting a "use," as herein defined, |
29 | and for purposes excluded from the definition of "use," it shall |
30 | be presumed that such property or services are utilized for |
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1 | purposes constituting a "sale at retail" and subject to tax |
2 | unless the user thereof proves to the department that the |
3 | predominant purposes for which such property or services are |
4 | utilized do not constitute a "sale at retail." |
5 | (6) The term "use" with respect to "liquor" and "malt or |
6 | brewed beverages" shall include the purchase of "liquor" from |
7 | any "Pennsylvania liquor store" by any person for any purpose |
8 | and the purchase of "malt or brewed beverages" from a |
9 | "manufacturer of malt or brewed beverages," "distributor" or |
10 | "importing distributor" by any person for any purpose, except |
11 | purchases from a "manufacturer of malt or brewed beverages" by a |
12 | "distributor" or "importing distributor," or purchases from an |
13 | "importing distributor" by a "distributor" within the meaning of |
14 | the "Liquor Code." The term "use" shall not include any purchase |
15 | of "malt or brewed beverages" from a "retail dispenser" or any |
16 | purchase of "liquor" or "malt or brewed beverages" from a person |
17 | holding a "retail liquor license" within the meaning of and |
18 | pursuant to the provisions of the "Liquor Code," but shall |
19 | include the exercise of any right or power incidental to the |
20 | ownership, custody or possession of "liquor" or "malt or brewed |
21 | beverages" obtained by the person exercising such right or power |
22 | in any manner other than pursuant to the provisions of the |
23 | "Liquor Code." |
24 | (7) The use of tangible personal property purchased at |
25 | retail upon which the services described in subclauses (2), (3) |
26 | and (4) of this clause have been performed shall be deemed to be |
27 | a use of said services by the person using said property. |
28 | (8) The term "use" shall not include the providing of a |
29 | motor vehicle to a nonprofit private or public school to be used |
30 | by such a school for the sole purpose of driver education. |
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1 | (9) The obtaining by the purchaser of lobbying services. |
2 | (10) The obtaining by the purchaser of adjustment services, |
3 | collection services or credit reporting services. |
4 | (11) The obtaining by the purchaser of secretarial or |
5 | editing services. |
6 | (12) The obtaining by the purchaser of disinfecting or pest |
7 | control services, building maintenance or cleaning services. |
8 | [(13) The obtaining by the purchaser of employment agency |
9 | services or help supply services.] |
10 | (15) The obtaining by the purchaser of lawn care service. |
11 | (16) The obtaining by the purchaser of self-storage service. |
12 | (17) The obtaining by a construction contractor of tangible |
13 | personal property or services provided to tangible personal |
14 | property which will be used pursuant to a construction contract |
15 | whether or not the tangible personal property or services are |
16 | transferred. |
17 | (18) The obtaining of mobile telecommunications service by a |
18 | customer. |
19 | * * * |
20 | [(bb) "Employment agency services." Providing employment |
21 | services to a prospective employer or employe other than |
22 | employment services provided by theatrical employment agencies |
23 | and motion picture casting bureaus. Such services shall include, |
24 | but are not limited to, services of the type provided by |
25 | employment agencies, executive placing services and labor |
26 | contractor employment agencies other than farm labor. |
27 | (cc) "Help supply services." Providing temporary or |
28 | continuing help where the help supplied is on the payroll of the |
29 | supplying person or entity, but is under the supervision of the |
30 | individual or business to which help is furnished. Such services |
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1 | include, but are not limited to, service of a type provided by |
2 | labor and manpower pools, employe leasing services, office help |
3 | supply services, temporary help services, usher services, |
4 | modeling services or fashion show model supply services. Such |
5 | services shall not include providing farm labor services. The |
6 | term shall not include human health-related services, including |
7 | nursing, home health care and personal care. As used in this |
8 | clause, "personal care" shall include providing at least one of |
9 | the following types of assistance to persons with limited |
10 | ability for self-care: |
11 | (1) dressing, bathing or feeding; |
12 | (2) supervising self-administered medication; |
13 | (3) transferring a person to or from a bed or wheelchair; or |
14 | (4) routine housekeeping chores when provided in conjunction |
15 | with and supplied by the same provider of the assistance listed |
16 | in subclause (1), (2) or (3).] |
17 | * * * |
18 | Section 2. This act shall take effect July 1, 2009, or |
19 | immediately, whichever is later. |
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