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Local Taxing Body May Not Levy a Business Privilege Tax on Rental Income, Holds the Commonwealth Court

The Pennsylvania Commonwealth Court recently held that a township could not levy its local business privilege tax on gross rental income received from leases within the township's jurisdiction. This decision, if upheld on appeal, may result in an opportunity for lessors to seek refunds of business privilege taxes paid on gross rental income.

The court's decision, in Fish v. Twp. of Lower Merion, 100 A.3d 746 (Pa. Commw. 2014), was based upon its interpretation of the Local Tax Enabling Act (the "LTEA"). The LTEA authorizes a local taxing body to levy, assess and collect taxes on, among other things, persons, transactions, occupations, privileges, subjects and personal property within the jurisdictional limits of the local taxing body. Excluded from this authority to tax, however, is the authority to levy, assess or collect taxes on leases or lease transactions.

Pursuant to the authority granted in the LTEA, a local taxing body may levy a business privilege tax on the "privilege of doing business" in the jurisdiction of the local taxing body if: (1) the privilege is exercised by conducting transactions in the jurisdiction of the local taxing body for at least 15 days per year; and (2) the privilege is exercised through a "base of operations" located in the jurisdiction of the local taxing body.

Interpreting the LTEA, the Court in Fish held that the Township of Lower Merion could not levy, assess or collect its business privilege tax on gross rental income received from lease transactions in the township. The Township of Lower Merion levied its business privilege tax on every person engaging in a business, trade, occupation or profession in the township, at a rate of 1.5 mills (i.e. $1.50 in taxes per $1,000 in taxable value) on such person's "gross receipts," including gross receipts from lease transactions. The Court concluded that the Township of Lower Merion violated the limitation on its taxing authority under the LTEA to the extent that it imposed the business privilege tax on gross receipts from lease transactions.

The Court concluded that the Township of Lower Merion could, however, consistent with the authority granted in the LTEA, impose annual registration requirements and related fees for business activities conducted within the township, including the business of leasing real property.

The Township of Lower Merion filed a Petition for Allowance of Appeal, which is currently pending before the Pennsylvania Supreme Court.

For more information, please contact Jenna Bickford at 814-870-7762 or any MacDonald, Illig, Jones & Britton LLP attorney with whom you have worked.