[Adopted 2-21-2006 by Ord. No. 122; amended in its entirety 12-17-2007 by Ord. No. 133]
This article shall be known and may be cited as the "Pocono
Township Local Services Tax Ordinance."
This article is enacted under authority of the Local Tax Enabling
Act, P.L. 1257, No. 511, December 31, 1965, 53 P.S. 6901 et seq. (1982),
as amended by Act 222 of 2004 and by Act 7 of 2007, and as revised
and renumbered in 53 P.S. § 6924.101 et seq. and as hereafter
amended, supplemented, modified or reenacted by the General Assembly
of Pennsylvania,
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 person, public employee or private agency designated
by the political subdivision to collect and administer the tax herein
imposed.
The Board of Commissioners of Pocono Township, Monroe County,
Pennsylvania.
The Department of Community and Economic Development of the
Commonwealth of Pennsylvania.
Compensation as determined under Section 303 of the Act of March 4, 1971 (P.L. 6, No. 2), known as the "Tax Reform Code of 1971," and regulations in 61 Pa. Code Pt. I, Subpt. B, Art. V (relating to personal income tax), not including, however, wages or compensation paid to individuals on active military service. Employee business expenses are allowable deductions as determined under Article III of the Tax Reform Code of 1971. The amount of any housing allowance provided to a member of the clergy shall not be taxable as earned income.
An individual, partnership, association, limited liability
company, limited liability partnership, corporation, governmental
body, agency or other entity employing one or more persons on a salary,
wage, commission or other compensation basis, including a self-employed
Individual.
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 Pocono Township, Monroe
County, Pennsylvania.
The net income from the operation of a business, profession, or other activity, except corporations, determined under Section 303 of the Act of March 4, 1971 (P.L. 6, No. 2), known as the "Tax Reform Code of 1971," and regulations in 61 Pa. Code Pt. I, Subpt. B, Art. V (relating to personal income tax). The term does not include income which is not paid for services provided and which is in the nature of earnings from an investment. For taxpayers engaged in the business, profession or activity of farming, the term shall not include:
Any interest earnings generated from any monetary accounts or
investment instruments of the farming business;
Any gain on the sale of farm machinery;
Any gain on the sale of livestock held 12 months or more for
draft, breeding or dairy purposes; and
Any gain on the sale of other capital assets of the farm.
Any trade, profession, business or undertaking of any type,
kind or character, including services, domestic or other, carried
on or performed within the corporate limits of Pocono Township for
which compensation is charged or received; whether by means of salary,
wages, commission or fees for services rendered.
The local services tax imposed by this article.
The period from January 1 until December 31 in any year;
a calendar year.
Pocono Township, Monroe County, Pennsylvania.
The Township hereby levies and imposes on every individual engaging
in an occupation within the jurisdictional limits of the Township
a tax in the amount of $52 per annum, beginning on January 1, 2008,
and continuing on a calendar basis annually thereafter, in accordance
with the provisions of this article. This tax may be used solely for
the following purposes as the same may be allocated by the Commissioners
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). The Township shall use no less than 25% of the funds derived
from the tax for emergency services. This tax is in addition to all
other taxes of any kind or nature heretofore levied by the Township.
The tax shall be no more than $52 on each individual for each calendar
year, irrespective of the number of political subdivisions within
which an individual may be employed.
A.
Exemption. Any individual whose total earned income and net profits
from all sources within the Township 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 individuals
are exempt from payment of the tax:
(1)
Any individual 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 individual 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 individual 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)
An individual seeking to claim an exemption from the tax may annually file an exemption certificate with the Township and with the individual's employer affirming that the individual reasonably expects to receive earned income and net profits from all sources within the Township of less than $12,000 in the calendar year for which the exemption certificate is filed. In the event the Township utilizes a Collector, it shall provide a copy of the exemption certificate to that Collector. The exemption certificate shall have attached to it a copy of all the individual's last pay stubs or W-2 forms from employment within the Township for the year prior to the fiscal year for which the individual is requesting to be exempted from the tax. Upon receipt of the exemption certificate and until otherwise instructed by the Township or except as required by Subsection B(2), the employer shall not withhold the tax from the individual 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 Township.
(2)
With respect to an individual who claimed an exemption for a given calendar year from the tax, upon notification to an employer by the individual or by the Township that the individual has received earned income and net profits from all sources within the Township equal to or in excess of $12,000 in that calendar year or that the individual is otherwise ineligible for the tax exemption for that calendar year, or upon an employer's payment to the individual of earned income within the Township in an amount equal to or in excess of $12,000 in that calendar year, an employer shall withhold the tax from the individual under Subsection B(3).
(3)
If an individual 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 individual 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 individual due to the exemption claimed by the individual under this section, 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 an individual subject to withholding of the tax under this subsection is subsequently severed in that calendar year, the individual shall be liable for any outstanding balance of tax due, and the Township may pursue collection under this article.
C.
Refunds. The Commissioners, in consultation with the Collector and
DCED, shall establish procedures for the processing of refund claims
for any tax paid by any individual who is eligible for exemption,
which procedures shall be in accord with provisions of the general
municipal law set forth in 53 Pa.C.S.A. §§ 8425 and
8426 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 Commissioners or the Collector shall
determine eligibility for exemption and provide refunds to exempt
Individuals.
A.
Each employer within the Township, as well as those employers situated
outside the Township but who engage in business within the Township,
is hereby charged with the duty of collecting the tax from each of
his employees engaged by him or performing for him within the Township
and making a return and payment thereof to the 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 Township.
B.
An individual subject to the tax shall be assessed by the employer a pro rata share of the tax for each payroll period in which the individual is engaging in an occupation. The pro rata share of the tax assessed on the individual for a payroll period shall be determined by dividing the combined 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 one-hundredth of a dollar. Collection of the tax shall be made on a payroll period basis for each payroll period in which the individual is engaging in an occupation, except as provided in Subsection D 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 Township.
C.
No individual shall be subject to the payment of the tax by more
than one political subdivision during each payroll period.
D.
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 local services
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.
E.
The tax shall be no more than $52 on each individual for each calendar
year, irrespective of the number of political subdivisions within
which an individual may be employed. The Township shall provide a
taxpayer a receipt of payment upon request by the taxpayer.
F.
No employer shall be held liable for failure to withhold the tax or for the payment of the withheld tax money to the Township if the failure to withhold the 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 tax in an amount exceeding the amount withheld by the employer if the employer complies with the provisions of § 398-17B of this article and this section and remits the amount so withheld in accordance with this article.
Each employer shall prepare and file a return 30 days after
the end of each quarter of a calendar year showing a computation of
the tax on forms to be supplied to the employer by the 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 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 with a primary
place of employment within the Township shall be required to comply
with this article and pay the pro rata portion of the tax due to the
Collector on or before the 30th day following the end of each calendar
quarter of each tax year.
The situs of the tax shall be the place of employment on the
first day the individual becomes subject to the tax during each payroll
period. in the event an individual is engaged in more than one occupation,
that is, concurrent employment, or an occupation which requires the
individual to work 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 an individual maintains
his or her principal office or is principally employed;
B.
Second, the political subdivision in which the individual resides
and works if the local services tax is levied by that political subdivision;
C.
Third, the political subdivision in which an individual is employed
and which imposes the local services tax nearest in miles to the individual's
home.
All employers and self-employed individuals residing or having
their places of business outside of the Township but who perform services
of any type or kind or engage in any occupation or profession within
the Township 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 Township. Further, any individual engaged in an occupation
within the Township 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 Township shall have
the option of proceeding against either the employer or employee for
the collection of this tax as hereinafter provided.
A.
The Collector shall be appointed by resolution of the Commissioners.
It shall be the duty of the Collector to accept and receive payments
of the tax, as well as all interest, fines and penalties imposed by
this article, and to keep a record thereof showing the amount received
by him from each employer or self-employed individual, together with
the date the tax or other payment was received. It shall also be the
duty of the Collector to accept and keep a record of the information
submitted by employers relating to the number of employees subject
to the tax, the number of employees exempt from the tax, the employee
exemption certificates and refunds of the tax paid to individuals
and employers. Any and all rules and regulations that the Commissioners
deem necessary to administer and/or enforce this article shall also
be provided by resolution.
B.
The Collector is hereby charged with the administration and enforcement
of this article and is hereby authorized, charged and empowered, subject
to approval by the Commissioners, to proscribe, 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 filed pursuant to this article and any
payment alleged or found to be incorrect, or as to which overpayment
is claimed or found to have occurred. Any individual aggrieved by
any decision of the Collector shall have the right to appeal consistent
with the Local Taxpayers Bill of Rights under Act 50 of 1998.[1]
[1]
Editor's Note: See 53 Pa.C.S.A. § 8421 et seq.
C.
The Collector, and any agents designated by the Collector, are 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 Collector, and any agents
designated by the Collector, the means, facilities and opportunity
for such examination.
A.
In the event that any tax under this article remains due or unpaid
30 days after the due dates above set forth, the Collector may sue
for the recovery of any such tax due or unpaid under this article,
together with interest and penalties.
B.
If for any reason the tax is not paid when due, interest at the rate
of 6% per annum on the amount of such tax shall be calculated beginning
with the due date of the tax and an additional penalty of 1/2 of 1%
of the amount of the unpaid tax for each month or fraction thereof
during which the tax remains unpaid, shall be added and collected.
Where suit is brought for the recovery of this tax or other appropriate
remedy undertaken, the individual liable therefore shall, in addition,
be responsible and liable for the costs of collection (including but
not limited to attorney fees) as well as for the interest and penalties
herein imposed.
Whoever fails, neglects or refuses to make any declaration or
return required by this article; any employer who fails, neglects
or refuses to pay the tax deducted from his employees; any person
who refuses to permit the Collector or any agent designated by the
Collector to examine his books, records and papers setting employees
subject to this tax or necessary to properly calculate whether any
tax is due and the amount thereof; any person who knowingly makes
an incomplete, false or fraudulent return or attempts to do anything
whatsoever to avoid the full disclosure in order to avoid the payment
of the whole or any part of the tax imposed by this article, or who
violates any other provisions of this article, shall upon conviction
thereof before any Magisterial District Judge or court of competent
jurisdiction in Monroe County, Pennsylvania, be sentenced to pay a
fine of not more than $500 for each violation, and costs, and, in
default of payment of said fine and costs to be imprisoned for a period
not exceeding 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
or collect or pay the tax required by this article. Additionally,
the appropriate officers or agents of Pocono Township are hereby authorized
to seek equitable relief, including injunctions, to enforce compliance
with this article. The failure of any individual or employer to receive
or procure forms for making the declaration or returns required by
this article shall not excuse that individual or employer from making
such declarations or returns.
Nothing contained in this article shall be construed to empower
the Township to levy and collect the tax hereby imposed on any occupation
not within the taxing power of the Township under the Constitution
of the United States and the laws of the Commonwealth of Pennsylvania.
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 or laws of the United States or of the Constitution
or 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.
Except as hereafter set forth, all ordinances or parts of ordinances
inconsistent herewith are hereby repealed. Nothing herein shall be
construed to repeal the existing ordinance providing for the assessment
and collection of an occupation privilege tax, plus applicable penalties
and interest, for calendar year 2005 and all prior calendar years,
or of the existing ordinance levying an emergency and municipal services
tax, plus applicable penalties and interest, for calendar years 2006
and 2007, as the same exist prior to this amendment and reenactment.
