Dennis Cohen takes a humorous (or as humorous as tax attorneys get) look at tax law developments from 2018. More
The Cozen O’Connor tax team has been providing sound advice to clients for decades. We serve public and private companies, joint ventures, real estate interests, high net worth individuals, and exempt organizations. In our federal tax practice, we advise clients on the tax implications of mergers and acquisitions, financings, real estate deals, entity structure, contractual arrangements, cross-border transactions, and other business arrangements. In our state and local tax practice, we provide the full range of transactional counsel and represent clients in tax controversies and litigation. On occasion, the tax team also supports client efforts to reform state and local tax statutes or regulations.
Tax is a key element of Cozen O’Connor’s transactional practice. Our tax group works in close collaboration with colleagues from corporate law, real estate, public and project finance, private client services, health law, labor and employment, and mergers and acquisitions on a full range of business matters. The firm’s culture of cross-disciplinary cooperation benefits clients enormously. Our tax advisors are involved from the start to ensure that every project is structured and carried out to achieve tax efficiency.
Cozen O’Connor’s tax lawyers provide support at inception and throughout the entire life cycle of a deal. For pure transactional lawyers, work is done at closing. But our tax attorneys provide tactical advice for as long as a business decision has tax implications, which can be several years or several decades. Having continuous tax counsel is essential because our attorneys accrue invaluable institutional knowledge over time. They learn the hot-button issues and logic of prior decisions so they can quickly assess how future changes will affect a client’s tax position.
Because every tax matter is inherently case-specific and subject to interpretation, attorneys at Cozen O’Connor carefully avoid generic solutions and reject a this-is-how-it’s-always-done mentality. For analytical purposes, we often calculate the cost of following a standard model. But that figure simply represents an opening bid. We then undertake to lawfully improve on that baseline by adding nuance and creativity. Through innovation, we are often able to reduce tax costs considerably.
An essential aspect of a strong tax practice is good communication. Because few people other than tax lawyers are fully fluent in code-speak, a good tax attorney must be able to translate the tax code into plain English, focus on core issues, and present information to clients in a manner that is at once sophisticated and comprehensible. Cozen O’Connor attorneys are able to operate at a high level using a common lexicon and are known for their candor and lack of pretense.
Mergers, Acquisitions, and Business Transactions
Advise clients on the tax aspects of public and private mergers, acquisitions, buyouts, and joint ventures, as well as spin-offs, liquidations, and other divestitures
Counsel clients on structured finance, project finance, leasing transactions, and the use of derivatives to hedge business operations and debt issuances
Advise clients on appropriate business structure, including general and limited partnerships, limited liability and series limited liability companies, and business trusts
Provide tax planning prior to incorporation or securities offerings
Guide the organization and syndication of private equity funds
Structure cross-border transactions with the goal of minimizing U.S. federal income tax consequences to non-U.S. treasurers and their owners
Advise clients on the optimal structure for real estate investments
Represent public real estate investment trusts in the entire gamut of tax matters, including the management of REIT income and asset tests and formation of non-publicly traded REITS
Counsel clients regarding securitizations, including real estate mortgage investment conduits (REMICs) and other asset securitizations
Advise clients with real estate investments that qualify for safe harbor protection
Assist with tax-free exchanges of like-minded properties
Serve public charities, museums, trade associations, health care providers, veterans’ organizations, and private foundations
Advise on formation of non-profit corporations and charitable trusts
Obtain tax rulings and federal, state, and local tax exemptions
Counsel high net worth individuals and businesses on the advantages of establishing and operating private foundations
State and Local Tax
Represent clients in state and local tax controversies and litigation
Advocate for legislative and regulatory changes in state and local tax codes
Advise clients about variations in state tax laws and perform multi-state tax analyses
Tax Compliance, Controversy, and Litigation
Render formal tax opinions in connection with specific transactions and obtain rulings from the Internal Revenue Service and state and local tax authorities
Represent clients in connection with IRS tax examinations, including before the IRS appeals branch, and in litigation before state and local taxing authorities, U.S. Tax Court, and the federal district and appeals courts
Our Tax Practice represents a wide variety of corporate clients and individuals, including:
Public and private companies
Real estate clients
High net worth individuals
Cozen O’Connor’s Tax Practice is made up of exceptionally qualified practitioners, including a former tax adviser to the U.S. Department of Treasury and a former chief counsel to the Pennsylvania Department of Revenue. Several attorneys are certified public accountants and have master’s degrees in taxation law. Many also have prior professional experience as in-house general counsel, which gives them unique insight into the needs of clients. Our most seasoned attorneys are leading scholars in the field and have authored or edited widely referenced treatises on state tax law and real estate tax.
The firm differentiates itself, in part, through its staffing model. In plain terms, we do not believe clients are best served by sprawling teams of undermanaged associates. While we have the capacity to add support as necessary, at Cozen O’Connor tax matters are primarily handled by experienced tax professionals who are deeply knowledgeable about the relevant subject area and have credibility with judges and counterparts. Because veteran attorneys are fully cognizant of the details of every matter, they are prepared to engage in peer-to-peer dialogue with clients at any time. When clients call at 3 a.m., they don’t just get a response – they get an answer.
December 11, 2018
Dennis Cohen takes a humorous (or as humorous as tax attorneys get) look at tax law developments from 2018.
November 29, 2018
Joseph C. Bright and Heidi R. Schwartz discuss Downs Racing, LP v. Commonwealth and the court's decision that royalty fees are intangible legal rights that do not fall within the meaning of corporeal personal property or canned software.
October 31, 2018
Tom Gallagher discusses the proposed regulations, highlighting those rules that should be important to investors and sponsors of QOZ investments, and points out several key areas under the proposed regulations where guidance is lacking and where the absence of guidance could create obstacles to successfully implementing investments in a QOZ.
October 11, 2018
Heidi Schwartz and Richard Silpe discuss three cases published this past summer that provide guidance to cannabis businesses and their owners in preparing their federal income tax returns. These cases turn on the application of IRC Section 280E, which precludes taxpayers from deducting any expense relating to a business that consists of trafficking in cannabis.
September 18, 2018
Joseph Bright discusses the Pennsylvania Commonwealth Court dismissal of a taxpayer’s petition that requested reversal of an order of the Board of Finance and Revenue in Greenwood Gaming & Entertainment Inc. v. Commonwealth
August 01, 2018
Joseph Bright discusses the decision in Williams v. City of Philadelphia holding that whether a city tax is preempted under the Sterling Act will depend on the incidence of the tax — that is, on what or whom the tax is imposed.
June 27, 2018
Dan Schulder discusses the 5-4 Supreme Court ruling that out-of-state online retailers can be held responsible for collecting use tax from their customers without having a physical presence in the state.
May 24, 2018
Joseph Bright, a member of Cozen O'Connor's Tax Practice Group, wrote an article for Bloomberg Law discussing the Pennsylvania Commonwealth Court recently ruling that an electric wholesaler is subject to the state's gross receipts tax
February 22, 2018
Joe Bright discusses recent decisions by the Commonwealth Court that will impact Pennsylvania taxpayers.
February 05, 2018
Cheryl A. Upham and Heidi R. Schwartz discuss new Personal Income Tax withholding obligations on certain lessees of non-residential real property and non-employer payors of Pennsylvania source compensation and business income.
January 22, 2018
Tom Gallagher discusses how the Tax Cuts and Jobs Act may impact real estate professionals.
January 22, 2018
Robert Friedman and Alexia Fishman discuss important changes to the estate and gift tax rules that likely will have an impact on your estate plan.
January 10, 2018
David Zambito, Ira Megdal, Rich Silpe, and Rory Moore discuss the Tax Cuts and Jobs Act and the changes to the taxation of business enterprises that have significant implications for public utilities.
January 09, 2018
Thomas Gallagher discusses changes made by Section 11011 of the Act, which added new Code Section 199A that creates a tax benefit to owners of passthrough entity businesses, i.e., partnerships and limited liability companies not taxed as corporations, S corporations, and sole proprietorships.
January 08, 2018
Sarah Kelly, Kate Ericsson and Rory Moore discuss a provision in the new Tax Act proposed by Senator Robert Menendez, (D-N.J.) that bars deductions for settlement payments, including attorney’s fees, related to sexual harassment or sexual abuse if the settlement payment is subject to a nondisclosure agreement.
January 05, 2018
Rory Moore discusses the Trump administration's Tax Cuts and Jobs Acts and how these changes will impact individuals.
January 04, 2018
Josh Weinberger discusses how the Trump administration's Tax Cuts and Jobs Act impacts U.S. persons with foreign income earned by foreign corporations.
January 03, 2018
Dennis Cohen continues the firm's series summarizing the Tax Cuts and Jobs Act, specifically focusing on changes to the tax code that impact exempt organizations.
December 27, 2017
Joseph Bright and Heidi Schwartz, members of Cozen O’Connor’s Tax Practice Group, discuss the Nextel Communications of the Mid-Atlantic, Inc. v. Commonwealth case in Bloomberg BNA.
December 21, 2017
Rich Silpe, co-chair of Cozen O'Connor's Tax Group, discusses key business tax changes under the Tax Cuts and Jobs Act. This is the first in a series of Alerts that our firm will be issuing on select topics of the Act.
December 14, 2017
Dennis Cohen takes a humorous (or as humorous as tax attorneys get) look at tax law developments from 2017.
November 16, 2017
Joe Bright and Bob Careless, members of Cozen O’Connor’s Tax Practice Group, discuss the Pennsylvania Commonwealth Court’s decision that a freight broker, who was taxed on delivery charges although it did not provide delivery services, does not fall within the freight delivery exception of the Local Tax Enabling Act (LTEA) in Bloomberg BNA.
October 03, 2017
Joseph Bright and Heidi Schwartz, members of Cozen O’Connor’s Tax Practice, discuss the Saturday Family L.P. v. Commonwealth case in Bloomberg BNA, in which the Commonwealth Court en banc held that Pennsylvania Realty Transfer Tax could not be imposed on a ground lease that contained an option for renewal at fair rental value that included an appraisal procedure.
August 15, 2017
Joseph Bright and Heidi Schwartz, members of Cozen O’Connor’s Tax Practice, discuss a case which found that all nuts, bolts, and washers used to install a guardrail system on a road or highway for Pennsylvania were exempt from sales tax in Bloomberg BNA.
August 08, 2017
Joseph Bright, a member of Cozen O’Connor’s Tax Practice, discusses the Pennsylvania Supreme Court’s finding that selective appeals of only commercial property violated the state uniformity clause in Valley Forge Towers Apartments N LP v. Upper Merion School District in Bloomberg BNA.
August 02, 2017
Heidi Schwartz discusses the validity of Philadelphia’s Sugar-Sweetened Beverage Tax (SBT) and the tax being challenged in Williams v. City of Philadelphia.
June 29, 2017
The Tax Court has allowed the owners of the Boston Bruins hockey team (a subchapter S corporation) to deduct 100 percent of the cost of pre-game meals at hotels for employees while traveling for away games.
June 06, 2017
Joseph Bright, a member of Cozen O’Connor’s Tax Practice Group, discusses a recent
Pennsylvania Commonwealth Court case that found American Electric Power liable for the gross receipts tax in an article for Bloomberg BNA.
May 11, 2017
The court overruled the trial court that the assessment must be stricken, and instead remanded the case to the lower court to apportion the receipts consistent with its opinion.
May 10, 2017
Joseph Bright and Heidi Schwartz discuss the impact of the Nextel case in Bloomberg BNA.
February 01, 2017
Joseph C. Bright discusses three recent rulings by the Commonwealth Court regarding sales and use tax.
December 23, 2016
Joe Bright discusses the Saturday Family case and its impact on determining the length of leases subject to realty transfer taxes in Bloomberg BNA.
December 13, 2016
Dennis Cohen takes a humorous look back at the developments in tax law.
November 18, 2016
This analysis provides insight into some of the most pertinent business issues President-elect Trump will likely address during his term, and what the election could mean for your industry and your business.
June 23, 2016
The court held that the $2 million cap on a net loss carryover deduction for 2006 Corporate Net Income Tax purposes is unconstitutional because it results in two classes of taxpayers: one for taxpayers that can completely eliminate their taxable income; and another that can only limit the deduction to the extent of the cap.
January 26, 2016
Richard J. Silpe discusses the Bipartisan Budget Act of 2015 that repealed the TEFRA partnership regime and replaced it with an entirely new regime for federal tax audits of partnerships (including LLCs taxed as partnerships) for tax years beginning after December 31, 2017.
December 31, 2015
An informative and humorous look back at 2015 tax matters.
July 23, 2015
The taxpayer filed a complaint in the nature of a request for declaratory judgment to void the tax sale. After a trial, the taxpayer filed a Statement of Matters Complained of on Appeal, but had not previously filed post-trial motions.
July 23, 2015
The court agreed with the trial court that the taxpayer had not established that it donated or rendered gratuitously a substantial portion of its services. The evidence was that the taxpayer received charitable contributions that varied around one percent of its annual expenditures, but the contributions, at least in substantial part, were a return from its parent of fees charged for management services
July 02, 2015
The court held that the regulation was a reasonable interpretation of the statute and under its plain terms, an amended report did not constitute a petition for refund in because the amended report lacked information that must be included with a complete refund claim.
June 16, 2015
A divided panel of The Commonwealth Court of Pennsylvania held that a reassessment of property upon the expiration of a KOZ abatement was an unlawful spot assessment. Duke Energy Fayette II, LLC v. Fayette County Board of Assessment Appeals, No. 1406 C.D. 2014 (Pa. Commw. Apr. 14, 2015).
June 16, 2015
The Commonwealth Court of Pennsylvania held that a trial court correctly held that a charitable exemption in Allegheny County begins only on the next assessment day, not when the property was acquired. Global Links v. Keystone Oaks School District, No. 1511 C.D. 2014 (Pa. Commw. May 8, 2015).
June 16, 2015
A panel of The Commonwealth Court of Pennsylvania held that attorney’s fees are collectable in a tax sale, notwithstanding that Act 2003-20, which authorized the collection of reasonable attorney’s fees, was retroactive to 1996.
May 29, 2015
In Comptroller of the Treasury of Maryland v. Wynne, the Court concluded that the system did not grant a resident credit for Maryland county income tax paid on income earned and taxed in another state.
April 20, 2015
A divided Commonwealth Court held that a township’s business privilege tax on gross receipts enacted under the Local Tax Enabling Act could not be applied to lease payments in Fish v. Township of Lower Merion.
April 16, 2015
The substantial volume of tax sale decisions from appellate courts continues. The high volume of decisions suggests that it may be time for the General Assembly to review the tax sales statutes.
April 14, 2015
A tax appeal from an interim assessment was properly preserved, notwithstanding that the taxpayer did not appeal a subsequent assessment that reflected a tax abatement under LERTA.
March 24, 2015
The Philadelphia Office of Property Assessment (OPA) recently mailed notices to each owner of property listed as tax exempt on the OPA’s records indicating that the owner must file a form to certify that the property continues to be entitled to exemption.
March 04, 2015
A panel of the Commonwealth Court affirmed a decision that an assessment board correctly increased the use value of properties enrolled under the Clean and Green program, notwithstanding that the increased use values exceeded the certified market values. Herzog v. McKean County Board of Assessment, No. 413 C.D. 2014 (Pa. Commw. Jan. 27, 2015). The court rejected the argument that the assessor did not have the power to increase the use value of the properties after they were enrolled in the program.
February 23, 2015
The Philadelphia Office of Property Assessment (OPA) has begun mailing notices to each owner of property listed as tax exempt on the OPA’s records indicating that the owner must file a form to certify that the property continues to be entitled to exemption. The notice and form are confusing as they list different due dates and effective dates for the certification. The OPA has confirmed that the due date for filing the form is March 31, 2015 and that the certification of exemption is for tax year 2016.
February 19, 2015
Continuing a line of recent appellate decisions, a panel of the Commonwealth Court set aside a tax sale because the tax claim bureau failed to note in the file additional efforts that it had made to notify the owner. In re: 2013 Perry County Tax Claim Bureau Sale, Appeal of Tufarolo.
February 10, 2015
A panel of the Commonwealth Court held that a tax sale of owner-occupied property was void because of the failure of the sheriff to include a copy of the notice of the tax sale with affidavits filed in the proceeding. Montgomery County Tax Claim Bureau v. Queenan, No. 209 C.D. 2014 (Pa. Commw. Jan. 12, 2015). The owner had actual notice of the tax sale in advance of the sale. Notwithstanding, the Court held that the failure of the Sheriff to include a copy of the notice did not meet the mandatory requirement of the statute in 72 P.S. §601(a)(3). The tax sale of owner-occupied property requires stricter requirements than requirements of notice to property owners generally under 72 P.S. §5860.602.
January 26, 2015
A panel of the Commonwealth Court held that a taxpayer failed to prove that he was a nonresident of Pennsylvania in 2005. Lust v. Commonwealth, No. 645 F.R. 2011 (Pa Commw. Jan. 9, 2015) (unreported). The taxpayer filed Pennsylvania, New York and New Jersey tax returns reflecting part year residency in Pennsylvania in 2005. Several years later, the taxpayer filed an amended Pennsylvania return claiming nonresidency for the entire year. The court stated that, when asked about the conflicting documentary evidence on cross examination, the taxpayer was evasive, repeatedly declined to identify documents that he had filed, would not confirm information contained therein, testified that he could not remember critical facts, and provided only the most basic information. The court found the taxpayer’s testimony not credible and held that he had failed to prove nonresidency in Pennsylvania.
January 26, 2015
A panel of the Commonwealth Court held that taxpayers could not be reassessed when they subdivided a parcel into two parcels but retained title. Raup v. Dauphin County Board of Assessment Appeals, No. 237 C.D. 2014 (Pa. Commw. Jan. 14, 2015). The taxpayers owned a property that they subdivided into two lots. One of the parcels had been improved with half of a duplex property long before the subdivision. The court held that the subdivision could not be the occasion for a reassessment when the improvements were not made contemporaneously, citing 53 Pa. C. S. § 8817(a). Any improvement to the property could justify a reassessment at the time the improvements are made but not at an arbitrary time in the future. A subdivision does not constitute an improvement; an improvement requires an addition to the property. The court further held that the subdivision by a deed for $1.00 did not constitute a sale taking the conveyance out of the protection of the subdivision.
December 18, 2014
A divided panel of the Commonwealth Court concluded that real estate used by a railroad as a transloading facility was not exempt from local real estate tax. CSX Transportation, Inc., v. Delaware County Board of Assessment Appeals, No. 1276 C.D. 2014 (Pa. Commw. Nov. 19, 2014). The appeal may not be correctly decided.
December 15, 2014
A panel of a Commonwealth Court concluded that a mixed-use housing project owned by municipality was exempt from real estate tax. Reading Housing Authority v. Board of Assessment Appeals of Berks County, No. 1937 C.D. 2013 (Pa. Commw. Nov. 12, 2014). The Reading Housing Authority owned and operated a mixed-use housing project known as a 20-80 project. Twenty percent of the units were set aside for low income persons. The balance were rented at commercial rates.
December 15, 2014
An informative and humorous look back at 2014 tax matters, including the IRS's 2015 inflation adjustments, employment tax matters, accounting matters and court decisions.
November 04, 2014
A divided panel of the Commonwealth Court held that a city was not prohibited from imposing its Business Privilege Tax on the gross receipts of a freight broker. S & H Transport, Inc. v. City of York, No. 165 C. D. 2014 (Pa. Commw. Oct. 15, 2014). The taxpayer contracted with its customer to provide common carrier transportation services. The taxpayer would then contract with a common carrier to transport the items, negotiating the lowest feasible price. The difference between what the taxpayer charged its customer and what the common carrier charged the taxpayer constituted the taxpayer's profit.
September 26, 2014
A panel of the Commonwealth Court held that portions of a 45-acre tract were entitled to exemption as places of regularly stated religious worship. Four Quarters Interfaith Sanctuary of Earth Religion v. Medford County Board of Assessment and Revision of Taxes, No. 1963
C.D. 2013 (Pa. Commw. Sept. 16, 2014). The tract in question was used to conduct open air religious practices of a religious faith. The property was secluded, which served to protect the privacy of the participants. The trial court held that certain portions of the property were exempt but others were not.
September 02, 2014
The statute requires notice to be given to each owner of the property. The notice requirements of the statute are strictly construed. Rinier v. Tax Claim Bureau of Delaware County, 606 A.2d 635 (Pa Commw. 1992). There were four owners of the property. Notice was sent addressed only to one owner followed by et al. The court held that such notice was inadequate under the statute. Therefore the tax sale was invalidated.
September 02, 2014
A panel of the Commonwealth Court held that the trial court properly denied a mortgage holder’s petition to set aside the judicial tax sale of a property in Lackawanna County due to alleged improper service of notice and other errors committed under the Real Estate Tax Sale Law (RETSL). HSBC Bank USA, N.A. v. Lackawanna County Tax Claim Bureau, No. 2027 C.D. 2013 (Pa. Commw. Aug. 1, 2014).
June 30, 2014
A panel of the Commonwealth Court held that a pro se taxpayer waived all issues on appeal because he failed to comply with the lower court’s order directing him to file a statement of matters complained of on appeal. City of Philadelphia v. Tax Review Board, Appeal of Samuel Cook, No. 1070 C.D. 2013 (Pa. Commw. May 21, 2014) (unreported). Issues not stated in a statement are waived. Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005). Since the taxpayer filed no statement, all issues were waived.
June 30, 2014
A panel of the Commonwealth Court held that an owner of property was entitled to pursue a base year evaluation appeal, notwithstanding that the initial appeal was taken by a school district. Corey v. Washington County Board of Assessment Appeals, No. 370 C.D. 2013 (Pa. Commw. May 13, 2014) (unreported).
June 30, 2014
A panel of a Commonwealth Court held that a mortgagee is not an aggrieved party for purposes of standing to take an appeal of the assessment of real property. Mountain Manor Development Company LP v. Monroe County Board of Assessment Appeals, No. 1187 C.D. 2013 (Pa. Comm. May 22, 2014) (unreported).
June 30, 2014
A divided Commonwealth Court panel vacated an order of the Court of Common Pleas of Lackawanna County dismissing a property owner’s (Pascal) set aside petition to void the judicial sale of her property and remanded the case for an evidentiary hearing.
June 30, 2014
A panel of the Commonwealth Court held that the Westmoreland Tax Claim Bureau had the discretion under the Real Estate Tax Sale Law (RETSL) to allow an owner of a tax delinquent property (Rowe) to redeem the property through the payment of all tax and costs after the property failed to sell at a tax sale and a judicial sale and had been placed in the bureau’s repository of unsold property. Consequently, the court dismissed a complaint for mandamus and declaratory judgment filed by an individual (Sanders) seeking to force the bureau to accept his bid for the property.
May 08, 2014
A nearly unanimous Pennsylvania Supreme Court reversed the Commonwealth Court and held that certain promotional expenses were deductible in calculating gross terminal revenue for purposes of the 34 percent Pennsylvania tax on slot machines.
April 18, 2014
The Commonwealth Court affirmed on several grounds an assessment under the Liquid Fuels and Fuels Use Tax Act. Luther P. Miller, Inc. v. Commonwealth, No. 550 F.R. 2009 (Pa. Commw. Mar. 20, 2014). The taxpayer raised three issues. The court rejected the argument that sales to bus operators that provided services to a school district were exempt from taxation as sales to political subdivisions, as addressed in 61 Pa. C.S. § 315.3.
March 27, 2014
In a four to three decision, the en banc Commonwealth Court held that a senior citizen’s estate was entitled to a rebate under the Senior Citizens Property Tax and Rent Rebate Assistance Act, 53 P.S. §§ 6926.1301-6926.1313 (the Senior Rebate Act), so long as the decedent met any of the claimant eligibility criteria under Section 1303 even if the decedent did not live throughout the tax year for which the rebate was sought.
March 06, 2014
The New York Court of Appeals reversed the decision of the Appellate Division of the New York Supreme Court and held that in order for an individual to have a “permanent place of abode” in New York for purposes of determining whether the individual is a statutory tax resident, there must be some basis to conclude that the property owned by the individual was actually used as the individual’s residence. Matter of Gaied v. New York State Tax Appeals Tribunal, et al., Docket No. 26 (N.Y. Ct. App. Feb. 18, 2014). While the decision is not binding in states other than New York, the analysis is pertinent in the myriad states, including Pennsylvania, that have a statutory definition of a resident for tax purposes that is the same or similar to that of New York.
February 20, 2014
A panel of the Commonwealth Court concluded that a continuing care retirement community qualified as an institution of purely public charity and was therefore exempt from real estate tax, except for a remand regarding application of the exemption to two relatively minor parcels. Albright Care Services v. Union County Board of Assessment, No. 2094 C.D. 2012 (Pa. Commw. Jan. 29, 2014) (unreported). The questions were whether the institution qualified as a purely public charity under case law and under Act 1997-55.
February 12, 2014
A panel of the Commonwealth Court modified an order of the Monroe County Court of Common Pleas that quashed certain real estate assessment appeals filed on a consolidated basis, but permitted the property owners to file amended appeals beyond the statutory appeal period provided they do so within 60 days of the order and pay the necessary filing fees.
February 12, 2014
Since the implementation in 2011 of federal legislation increasing the federal estate and gift tax exemption to $5,000,000, many New York residents have been making large lifetime gifts in order to substantially reduce their New York estate tax. Recently proposed legislation, if passed, will eliminate this tax reduction strategy by pulling back into the New York taxable estate at death lifetime gifts made by New York residents after March 30, 2014.
February 12, 2014
A federal district court remanded to state court an action that made various contractual and consumer oriented claims regarding the collection of sales tax. Farneth v. Wal-Mart Stores, Inc., 2:3-cv-01062 (W.D.PA. Dec. 30, 2013). The plaintiff purchased two items of shaving gel at a Wal-Mart store taking advantage of a two-for-one promotional sale. The store charged Pennsylvania Sales Tax as though both items were purchased at full price.
January 09, 2014
On December 30, 2013, the Internal Revenue Service issued its long-awaited historic rehabilitation tax credit guidance in the form of a Revenue Procedure that outlines a safe harbor for allocations of the Code Sec. 47 tax credits to partners in a partnership. The impetus for this guidance grew out of the 2012 3rd Circuit opinion in Historic Boardwalk Hall, LLC v. Commissioner, 694 F.3d 425 (3rd Cir. 2012), cert. denied, U.S., No. 12-901, May 28, 2013. In Boardwalk, the court determined that the tax credit investor’s return from the historic tax credit partnership was effectively fixed and that the investor had no meaningful downside risk. It concluded that the investor “lacked a meaningful stake in either the success or failure” of the partnership and was not a “bona fide partner.” As a result, the allocation of the rehabilitation tax credits to the partner by the partnership was disallowed.
January 09, 2014
A plurality of the full Pennsylvania Supreme Court held that the disparity in valuations that results from the application of the statutory averaging formula for valuations and a combination provision are not unconstitutional. Lebanon Valley Farmers Bank v. Commonwealth, No. 78 MAP 2011 (Pa. Dec. 27, 2012) (3 to 2), reversing 27 A.3rd 288 (Pa Commw. 2011) . The decision may be incorrectly decided.
December 31, 2013
We are pleased to present the 2013 Year-End Tax Update, as presented by Dennis L. Cohen at the Brindisi Tax Academy. It combines humor and important tax developments.
December 04, 2013
A panel of the Commonwealth Court reversed and remanded for further findings several assessments determined by a trial court. In re appeal of Harley-Davidson Motor Company, No. 159 C.D. 2013 (Pa Commw. Oct. 30, 2013). The property was approximately 229 acres formerly used for the manufacture of munitions and certain other industrial activities. The property had significant continuing environmental problems. The Commonwealth Court reversed for several reasons.
December 04, 2013
A divided panel of the Commonwealth Court affirmed a decision below that taxpayers were entitled to credits for overpaid Philadelphia Business Privilege Tax, notwithstanding a three-year limit on the refund of taxes. City of Philadelphia v. City of Philadelphia Tax Review Board ex rel. Keystone Healthplan East, Inc., No. 97 C.D. 2013 (Pa Commw. Nov. 18, 2013).
November 26, 2013
A panel of the Commonwealth Court reversed and remanded assessments on a property regarding the impact of obsolescence on the buildings. In re Appeal of Council Rock School District, Appeal of LMC Properties, Inc., No. 354 C.D. 2013 (Pa Commw. Nov. 8, 2013) (unreported). The property consisted of 52 acres and an office, research and industrial center used for research and manufacturing. The court first rejected an argument that the trial court used a value-in-use methodology. The court held that the appraiser upon which the trial court relied did not take into account specialized equipment in the buildings.
November 05, 2013
The Pennsylvania Supreme Court reversed the Commonwealth Court and held that property owned by the Board of City Trusts acting as trustee under the will of Stephen H. Girard was immune from real estate taxation because the trust is a state agency. City of Philadelphia, Trustee v. Cumberland County Board of Assessment Appeals, No. 902 MAP 2011
(Pa. Oct. 30, 2013). The court was unanimous in the result; two justices filed a concurring opinion.
October 31, 2013
A panel of the Commonwealth Court remanded a decision by the Montgomery County Court of Common Pleas for specific findings on certain aspects of a valuation for real estate tax purposes. 36 Township Line Storage, L.P. v. Montgomery County Board of Assessment Appeals, No. 1540 C.D. 2012 (Pa Commw. Oct. 18, 2013) (unreported). The court remanded, on the grounds of the now black-letter rule that a court may adopt some, a portion, or all of an expert’s report that it finds credible, but must explain which parts its relies upon so that a review in court can determine whether the conclusion is reasonably based on the record.
August 30, 2013
A panel of the Commonwealth Court sustained a decision that upheld the assessment of a township’s business privilege tax, interest and penalties. Whitehall Township Treasurer v. Allentown Power Center, L.P. No. 248 C.D. 2012 (Pa. Commw. Aug. 8, 2013). The taxpayer was assessed business privilege tax for 15 years beginning in 1995 on gross receipts from a rental commercial property.
July 18, 2013
Two tax bills will make substantial changes to Pennsylvania taxes if finally enacted. The bills were part of the budget process. House Bill 465 has passed the House and Senate and requires the governor’s signature. Senate Bill 591 needs Senate concurrence in certain House amendments and the governor’s approval.
July 18, 2013
The en banc Commonwealth Court held that private telephone line charges and directory assistance services were subject to the Public Utility Gross Receipts Tax (GRT), but non-recurring service charges were exempt. Verizon Pennsylvania, Inc. v. Commonwealth.
July 18, 2013
A panel of the Commonwealth Court held that a taxpayer had standing to challenge a LERTA designation, but the complaint nonetheless was dismissed because it alleged no facts in support of the claim that the property was incorrectly classified as deteriorated.
July 02, 2013
The Pennsylvania Supreme Court affirmed per curiam a decision that the burden of proving a change of domicile is on the person claiming the change. Hvizdak v. Commonwealth, 92 MAP 2012 (Pa. June 17, 2013) (per curiam), aff’g 50 A.3d 788, (Pa. Commw. 2012).
January 05, 2012
Sheetz Test Rejected for Sales and Use Tax - Tax Alert -
December 29, 2011
Pallets by Themselves Not Considered Containers - Tax Alert -
December 28, 2011
Tax Compromises Possible at Board of Appeals - Tax Alert -
December 15, 2011
Philadelphia Amends Business Privilege Tax Bases, Rates & Credits & Provides Relief to New Businesses - Tax Alert! - Philadelphia City Council unanimously passed bills number 110554 and 110548-A, both of which were signed by the mayor on November 14. Bill number 110554 amends the city’s Business Privilege Tax (BPT) to allow for an exclusion to all taxpayers for a flat amount of receipts from the gross receipts portion of the tax, a pro-rata exclusion from the net income portion of the tax to account for the excluded
August 12, 2011
Bank Shares Tax Calculation Modified - Tax Alert! - The Commonwealth Court en banc dismissed exceptions from a panel decision and held that the calculation of Bank Shares Tax must be modified to cure a constitutional defect in the application of the tax to certain post-merger institutions. Lebanon Valley Farmers Bank v. Commonwealth, No. 698 F.R. 2005 (Pa. Commw. Aug. 4, 2011).
August 10, 2011
Declaratory Judgment on Hotel Tax Application May Proceed - Tax Alert! - panel of the Commonwealth Court held that a county could proceed with a declaratory judgment action seeking to establish that online reservation companies are subject to the county’s hotel tax. County of Lawrence v. Hotels.com LP, No. 2541 C.D. 2010 (Pa. Commw., Aug. 3, 2011).
August 02, 2011
STEB Sets 2010 Philadelphia Common Level Ratio at 18.1% - Tax Alert! - The Pennsylvania State Tax Equalization Board (STEB) recently released the 2010 Common Level Ratios (CLR) for counties across Pennsylvania. The 2010 CLR for Philadelphia is 18.1% — not quite half what it has been for the past twenty-five years. The large shift will have an important impact in two areas of Philadelphia taxation.
July 21, 2011
IRS Issues Guidance to Examiners on the Codified Economic Substance Doctrine and Associated Penalties - Tax Alert! - On July 15, the IRS Large Business and International Division (LB&I) issued an Industry Director’s Directive (Directive) providing guidance to examiners and their managers regarding the Codified Economic Substance Doctrine (ES Doctrine) and its penalties. The Directive describes when it is appropriate to raise the ES Doctrine in a case and the series of steps the examiner must take to seek approval for the application of the ES Doctrine in the particular case.
July 08, 2011
Losses and Deductions From a Tax-Exempt Organization's Unrelated Trade or Business - Maximizing Tax Efficiencies in a Distressed Real Estate Market - Tax Group Reprt - In connection with its ongoing compliance audits of colleges and universities, the Internal Revenue Service has been reviewing the extent to which colleges, universities and certain other Code Sec. 501(c)(3) organizations reported tax losses from unrelated businesses. According to news reports, the IRS believes that these losses have been used to offset taxable income realized by the organizations from unrelated trades or businesses
June 29, 2011
Further Updates - FBAR Reporting Requirements for Employee Benefit Plans - Employee Benefits & Executive Compensation Alert! - Since our previous Alert, the Treasury Department has issued final regulations and a new disclosure form for the Report of Foreign Bank and Financial Accounts (FBAR), instituted a new Offshore Voluntary Disclosure Program, and provided certain individuals with extensions of filing deadlines.
May 31, 2011
Class Action Stayed - Tax Alert! - The Pennsylvania Superior Court held that a trial court correctly ruled that a purported class action for the refund of Sales and Use Tax must be decided in the first instance by the Department of Revenue. It should have stayed the action until the Department of Revenue acted on the refund claim. Stoloff v. Neiman Marcus Group, Inc., No. 2674 EDA 2009 (Pa. Super. May 23, 2011).
May 12, 2011
Farmstead Valued at Current Market Value - Tax Alert! -
April 21, 2011
Air Pump Sales Not Taxable - Tax Alert! - In a divided panel decision, the Commonwealth Court held that sales from coin operated air vending machines located in gas stations and convenience stores were not taxable for Sales and Use Tax purposes. Air-Serv Group, LLC v. Commonwealth, No. 459 F.R. 2008 (Pa. Cmwth. April 14, 2011). The majority held that the sales were not taxable for several reasons.
April 20, 2011
Reassessment to Comparables Denied - Tax Alert! - A panel of the Commonwealth Court concluded that, although a taxpayer demonstrated that his property was assessed at a much greater value than certain comparable properties in a development, he was entitled to no relief beyond application of the common level ratio. Smith v. Carbon County Board of Assessment Appeals, 10 A.3d 393 (Pa. Commw. 2010).
April 19, 2011
Use Value of Forest Reserve Correctly Determined - Tax Alert! - A panel of the Commonwealth Court concluded that, although a taxpayer demonstrated that his property was assessed at a much greater value than certain comparable properties in a development, he was entitled to no relief beyond application of the common level ratio. Smith v. Carbon County Board of Assessment Appeals, 10 A.3d 393 (Pa. Commw. 2010).
April 15, 2011
Community Center Was Not a Charity - Tax Alert! - An en banc decision of the Commonwealth Court held that a community center that provided free services for all its programs was not a purely public charity entitled to an exemption for real estate tax purposes. Church of the Overcomer v. Delaware County Board of Assessment Appeals, No. 269 C.D. 2010 (Pa. Commw. Mar. 17, 2011). The decision appears to be incorrectly decided. Click here for the entire story.
January 18, 2011
Expedia Not Required to Collect Philadelphia Hotel Tax - Tax Alert! - The Philadelphia Court of Common Pleas affirmed a decision by the City’s Tax Review Board that an Internet hotel reservation company was not liable to collect Philadelphia’s Hotel Tax. City of Philadelphia v. City of Philadelphia Tax Review Board, Mar. Term 2010 No. 00764 (Phila. C.P. Jan. 14, 2011)
July 27, 2010
License for Canned Software is Taxable - Tax Law Alert! - The Supreme Court of Pennsylvania held that a license to use canned software is a license to use tangible personal property and is therefore taxable for Sales and Use Tax purposes. Dechert LLP v. Commonwealth, No. 12 MAP 2008 (Pa., July 20, 2010). Oral argument on the appeal was held over 1 ½ years ago.
June 22, 2010
Update - FBAR Reporting Requirements for Employee Benefit Plans - Employee Benefits & Executive Compensation Alert! - During the past year, we have reported on expanded obligations of retirement and other employee benefit plans, along with other taxpayers, to file the Report of Foreign Bank and Financial Accounts (“FBAR”). This report must be received by the U.S. Department of Treasury (not merely mailed) by June 30, 2010. There are no extensions of time to file. Recently, further guidance and administrative relief have been provided by the IRS for the 2009 FBAR.
May 03, 2010
Exemption Denied For Lack Of Free Services - Tax Law Alert! - A panel of the Commonwealth Court reversed a trial court
and held that a nonprofit corporation that provided student
housing was not entitled to a charitable exemption
because it did not give free or discounted services to the students.
CHF-Kutztown, LLC v. Berks County Board of Assessment Appeals, No.
1663 C.D. 2009 (Pa. Cmwlth. Apr. 13, 2010) (unreported).
April 26, 2010
Irrevocable Trust Is an Ordinary Trust - Tax Law Alert! - Adivided panel of the Commonwealth Court rejected
the position of the Department of Revenue and held
that a transfer to an irrevocable trust qualified as a transfer to a living trust excluded from realty transfer tax. Miller v. Commonwealth, No. 757 F.R. 2007 (Pa. Commw. Apr. 8, 2010). A living trust is a qualifying trust intended as a will
substitute. 72 P.S. §8101-C. A transfer to a qualifying living trust is excluded from tax. 72 P.S. §8102-C.3(8.1).
February 01, 2010
Flat Tax on Businesses Upheld - Tax Alert! - A panel of the Commonwealth Court concluded that a flat tax of $2,600 on all businesses in a township with gross receipts of over $1 million was lawful. Shelly Funeral Home, Inc. v. Warrington Township, No. 769 C.D. 2009 (Pa. Cmwlth. Dec. 31, 2009) (unreported). The appeal is probably correctly decided, but it highlights several serious policy mistakes by the General Assembly.
January 27, 2010
YMCA Empty Charity - Tax Alert! - In the third appellate decision in ten years of litigation, a commercial fitness center failed in a claim that the operation of a fitness center by a YMCA violated the prohibition against subsidizing a commercial business unrelated to the
YMCA’s charitable purpose. Selfspot, Inc. v. Butler County Family YMCA, No. 1308 D.C. 2008 (Pa. Cmwlth. Jan. 5, 2010) (en banc). The appellate court agreed with the conclusion of the trial court after five days of hearings that the YMCA’s fitness center
January 21, 2010
PEO Did Not Sell Help Supply Services - Tax Alert! - Apanel of the Commonwealth Court concluded that
a flat tax of $2,600 on all businesses in a township
with gross receipts of over $1 million was lawful.
Shelly Funeral Home, Inc. v. Warrington Township, No. 769 C.D.
2009 (Pa. Cmwlth. Dec. 31, 2009) (unreported). The appeal is
probably correctly decided, but it highlights several serious
policy mistakes by the General Assembly.
January 20, 2010
Transfer of Residence to Trust is Taxable - Tax Alert! - A divided panel of the Commonwealth Court held that the transfer of a vacation residential property by husband and wife to themselves as trustees to benefit themselves and their children was taxable because the trust was a business trust, not an ordinary trust for realty transfer tax purposes. Kosco v. Commonwealth, No. 766 F.R. 2007 (Pa. Cmwlth. Dec. 16, 2009). The practical effect of the decision probably will be that virtually no transfer of real estate to a trust can ever qualify
January 18, 2010
MOBILE HOMES ARE REAL ESTATE - Tax Alert! - In two cases, a panel of the Commonwealth Court held
that mobile homes were taxable as real estate for real estate tax purposes. Lazor v. Board of Assessment Appeals, No. 2372 D.C. 2008 (Pa. Cmwlth., Dec. 15, 2009); Gelormino v.
Board of Assessment Appeals, No. 2371 C.D. 2008 (Pa. Cmwlth., Dec. 15, 2009). The pertinent assessment statute imposed real
estate taxes on mobile homes permanently attached to the land or connected to utility facilities.
January 15, 2010
Religious Summer Camp is Not a Charity - Tax Alert! - A panel of the Commonwealth Court held that a Jewish religious camp located in Pike County was not entitled to exemption as a purely public charity because it did not meet one of the case law requirements that an institution relieve the government of some of its burden. Mesivtah Eitz Chaim of Bobov, Inc. v. Pike County Board of Assessment Appeals, No. 2343 C.D. 2008 (Pa. Cmwlth. Dec. 29, 2009) (unreported).
January 13, 2010
Pennsylvania Tax Amnesty Program - Tax Alert! - Act 48 of 2009 established a new tax amnesty program in Pennsylvania (the “Program”). This Program will run 54 days commencing on April 26, 2010 and ending on June 18, 2010 (the “Amnesty Period”). Eligible periods for the Program include all those known and unknown periods that exist as of June 30, 2009. Periods subsequent to June 30, 2009 are not eligible for the program.
January 07, 2010
Local Head Tax Prohibited by Federal Act - Tax Alert! - The federal Third Circuit Court of Appeals held that the U.S. Department of Transportation correctly determined that a head tax imposed by Tinicum Township was prohibited by the Anti-Head Tax Act, 48 U.S.C. §40116. Township of Tinicum v. United States, No. 08-1830 (3rd Cir. Sept. 14, 2009).
December 18, 2009
Pennsylvania Tax Changes - 2009/2010 Budget Bill - Tax Alert! - More than 100 days after the due date mandated by law, the Pennsylvania budget for fiscal year 2009/2010 budget was finally passed and signed into law by Governor Rendell.
December 16, 2009
Self-Storage Facilities Correctly Valued - Tax Alert! - In an unreported decision, a panel of the Commonwealth Court concluded that certain self-storage facilities were correctly valued for real estate tax purposes based on the actual financial results from the property, since the trial court had found that the properties were optimally managed and a buyer could not reasonably expect to improve the financial performance. Guardian Self Storage WD v. Board of Property Assessment Appeals & Review, No. 119 C.D. 2009 (Pa. Cmwth., Nov. 16, 2009).
December 15, 2009
Investment Loss Disallowed - Tax Alert! - A panel of the Commonwealth Court disallowed a claimed business loss of over $21 million on the grounds that a settlement with the Internal Revenue Service regarding the same loss amounted to an admission that the investment was not made with the intention of making a profit. Hvizdak v. Commonwealth, No. 739 F.R. 2006 (Pa. Cmwlth., Nov. 19, 2009).
November 17, 2009
Electricity Delivery and Stranded Cost Charges are Taxable - Tax Alert! - The Pennsylvania Supreme Court held that after deregulation of the electricity industry, charges by a distribution company for the transmission of electricity and for stranded costs are taxable for Sales and Use Tax purposes. Spectrum Arena Limited Partnership v. Commonwealth, No. 42 MAP 2008 (Pa. Nov. 5, 2009). This was a hard case, and it made bad law.
August 06, 2009
Borrowers and Lenders Coming to Grips with the Pitfalls and Opportunities when Modifying the Terms of Distressed Debt - Tax Alert - According to First American CoreLogic, almost $165
billion of commercial real estate loans will mature in 2009. Trepp LLC, a commercial bond and real estate loan statistician based in New York City and London, reported that another $3.8 billion of commercial mortgage loans were transferred to special servicers in June, increasing the total balance of securitized commercial mortgages under the control of special servicers by 10%, to almost $40 billion. As the per square foot office rents in
June 26, 2009
Denial of Tax Credit is Appealable - Tax Alert! -A panel of the Commonwealth Court held that the denial by the Department of Community and Economic Development of a tax credit claimed under the Neighborhood Assistance Act is appealable. Dijas v. Department of Community and Economic Development, No.1388 C.D. 2008 (Pa. Commw. Apr. 28, 2009). The Act authorizes the Department to grant a tax credit to a taxpayer that contributes to certain approved improvements or programs in needy communities.
June 15, 2009
IRS Answers Questions on Employer-Owned Life Insurance Contracts but Tax Traps Remain - Tax Alert! - The IRS recently issued guidance in connection with employer-owned life insurance contracts (“EOLI”). Notice 2009-48 clarifies a number of administrative questions. It does not eliminate the loss of tax benefits applicable to EOLI or the need to satisfy notice and consent formality in order to quality for exception from these rules. An inadvertent
failure to satisfy the notice and consent requirements could result in the loss of a significant tax exclusion.
June 11, 2009
Recent Pennsylvania Tax Decisions - Tax Alert! -
May 12, 2009
IRS Life Insurance Guidance - Tax Alert! - On May 1, 2009, the IRS issued two revenue rulings to clarify the income tax treatment relating to the surrender, sale and purchase of certain life insurance policies. They are in response to a congressional request for guidance for life settlement transactions in which such life insurance policies are sold to unrelated third parties. However, the principles in the revenue rulings may extend beyond such transactions.
March 26, 2009
New Cancellation of Indebtedness Rule - Tax Alert -
February 11, 2009
Tax Planning Opportunity - Tax Alert - The dramatic reduction in short-term interest rates and
the dislocation in the bond market have combined
to create the following investment/income tax
savings/estate planning opportunity.