Is the Pennsylvania Personal Property Tax Constitutional?

By Daniel B. Evans
Copyright © 1996-1998 Daniel B. Evans. All rights reserved.

[First published 4/10/96; last revised 10/10/98]

Is the Pennsylvania personal property tax constitutional?

No, according to Judge Smyth of the Court of Common Pleas of Montgomery County, but his recently published conclusions of fact and law, Interim Report, Annenberg v. Com. of Pennsylvania, Montg. C.P. No. 98-08615, Sup.Ct. Misc. Nos. 003 and 004 of 1997 (Oct. 7, 1998), may not provide any relief to any taxpayers in Pennsylvania.

The issue of the constitutionality of the personal property tax arose out of the decision of the United States Supreme Court in Fulton Corp. v. Faulkner, 516 U.S. 324 (1996), in which the Supreme Court found that a similar tax in North Carolina was unconstitutional as a violation of the Commerce Clause of the U.S. Constitution because it discriminated between the stock of corporations that did business in North Carolina (and paid North Carolina taxes) and corporations that did no business, the tax falling on the stock of the out-of-state corporations. Shortly afterwards, several residents of Pennsylvania (including Walter H. Annenberg) sued for refunds of the Pennsylvania personal property tax, relying on a statute in Pennsylvania allowing actions for refunds on taxes paid to counties (and other political subdivisions) within the preceding three years if the county was not “legally entitled” to the tax.

In an order issued April 7, 1998, the Pennsylvania Supreme Court agreed that the personal property tax is facially discriminatory, and remanded the issue to a trial court for hearings and a determination on whether the tax was “compensatory” and constitutional, or unconstitutional and, if unconstitutional, what remedy is appropriate for taxpayers who have paid the tax or have been billed for the tax. Annenberg v. Commonwealth, et al., Slip Opinion J-109-1997 (Pa. Supreme Court, 4/7/98). The hearings were held in Montgomery County before President Judge Joseph A. Smyth, who determined that the tax is not “compensatory” but that the exclusion for stock of Pennsylvania corporations could be severed from the rest of the tax, and that it was the exclusion that was unconstitutional, not the tax itself.

If adopted by the Pennsylvania Supreme Court, Judge Smyth’s determinations will probably mean that there will be no refunds for taxpayers, and that the counties may collect a personal property tax on all stocks, both of Pennsylvania corporations and of corporations operating outside of Pennsylvania.

What is the Pennsylvania Personal Property Tax?

The “personal property tax” is a tax on various forms of intangible personal property, such as stocks, bonds, and certain other forms of indebtedness. There are a number of exemptions, including an exemption for the stock of corporations which are subject to the Pennsylvania capital stock tax or franchise tax. Act of June 17, 1913, P.L. 507, §1. It is that exemption that causes the constitutional problem.

What is the Commerce Clause?

Article I, Section 8, clause 3, of the Constitution of the United States gives Congress the power to “regulate Commerce … among the several States….” That provision has long been interpreted as both giving power to Congress and restricting the power of the states. Congress has the power to regulate businesses and business activities that affect more than one state, and states are prohibited from enacting legislation that restricts or burdens commerce that crosses their borders from another states. As a result, a state cannot impose a tax that falls more heavily on businesses from another state than on businesses within the state.

The Fulton Decision

In Fulton Corp. v. Faulkner, 516 U.S. 324 (1996), the U.S. Supreme Court was asked to review the constitutionality of the North Carolina personal property tax. Like Pennsylvania, North Carolina taxed corporate stock, and distinguished between corporations already paying taxes to the state and those not paying any taxes. Under the North Carolina system, a corporation paid corporate income tax on that portion of it’s income attributable to operations in North Carolina. The stock of the corporation was then subject to personal property tax in the hands of the shareholders in the same percentage that the income of the corporation was not subject to income tax in the state. So the stock of corporation which operated entirely within North Carolina was not subject to the personal property tax, while the stock of a corporation which did not earn any income at all in North Carolina was entirely subject to the personal property tax. If a corporation earned 5% of its income in North Carolina, then 95% of the value of the stock was subject to personal property tax.

The Supreme Court recognized that the tax discriminated between corporations that operated within the state and corporations that did not operate within the state. However, it also recognized that a tax may be applied to interstate commerce if the tax is “compensatory” and simply makes interstate commerce bear a tax burden already borne by commerce within the state. The classic example of a “compensatory” tax is a “use” tax imposed on personal property purchased outside of the state and brought into the state to be used there. A use tax that is equal to the sales tax already imposed by the state has been held to be constitutional because the consumer pays the same tax in each case, either at the time of purchase within the state or at the time the property is brought into the state from another state.

Based on earlier decisions, the Supreme Court declared that there were three conditions that a discriminatory tax must satisfy in order to be constitutional:

1. The state must identify the tax burden within the state for which the state is attempting to compensate;
2. The tax on interstate commerce must roughly approximate the tax on commerce within the state; and
3. The taxable events must be “substantially equivalent” for the interstate and intrastate taxes.

Applying those tests to the North Carolina tax, the court unanimously found that the tax failed all three tests.

Applying Fulton to Pennsylvania

The similarities between the North Carolina personal property tax and the Pennsylvania personal property tax suggest that the Supreme Court would hold that the Pennsylvania tax is unconstitutional as well. A review of the opinion of the court, and the discussions of why the North Carolina tax failed the three part test described above, shows that the Pennsylvania tax is no more constitutional than the North Carolina tax, and may be less constitutional.

• When comparing the intrastate tax for which the interstate tax is supposed to compensate, the court held that the intrastate tax must serve a purpose for which the state may impose a burden on interstate commerce. North Carolina claimed that the tax on the value of corporate stock compensated the state for the income tax it could not collect on out- of-state income. However, the court held that North Carolina had no right to tax incomes earned outside of the state. Pennsylvania personal property tax appears to be linked to the capital stock tax or franchise tax. The capital stock tax is a property tax on domestic entities, and the franchise tax is a privilege tax on foreign organizations doing business in Pennsylvania. However, both taxes are calculated in the same way, based on a series of formulas that calculate stock values from net worth and net income, then apportion the value between activities in Pennsylvania and activities outside of Pennsylvania. Like North Carolina, Pennsylvania has no right to tax property outside of Pennsylvania or the privilege of doing business outside of Pennsylvania, so the personal property tax on the stock of corporations doing business outside of Pennsylvania does not serve a purpose for which the state may impose a burden on interstate commerce.North Carolina attempted to justify the personal property tax on the grounds that the tax was a payment for the privilege of access to the capital markets of the state, which other corporations supported through payment of the corporate income tax, but Supreme Court rejected that argument, quoting from Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. ___ , ___ (slip opinion at 13, n. 8), (1994), holding that “(p)ermitting discriminatory taxes on interstate commerce to compensate for charges purportedly included in general forms of intrastate taxation would allow a state to tax interstate commerce more heavily than in-state commerce anytime the entities involved in interstate commerce happened to use facilities supported by general tax funds.” There is no reason to believe that Pennsylvania could distinguish itself from North Carolina on this issue, or advance a more convincing argument.

   

   

• The Supreme Court also held that North Carolina had failed to show that the tax on interstate commerce be shown “roughly to approximate” the tax on intrastate commerce. Although North Carolina attempted to show that the personal property tax burden might be similar to the corporate income tax burden, the Supreme Court rejected the argument as a comparison of “apples to oranges,” because a corporate income tax supports a wide range of government services, while the personal property tax was supposedly imposed to support capital markets in North Carolina, and the court held that North Carolina could not carry its burden of proving what proportion of the corporate income tax goes to support the capital market, or whether that proportion represents a burden greater than the one imposed on interstate commerce by the intangibles tax. Pennsylvania would have an even greater burden of proof, because the North Carolina personal property tax was at least proportionate to the income of the corporation outside of the state, while the stock of a corporation that is “subject” to the capital stock or franchise tax to Pennsylvania is wholly exempt from the Pennsylvania personal property tax even though the corporation pays little or no tax to Pennsylvania. For example, a foreign corporation that conducts a small percentage of its business in Pennsylvania will pay a franchise tax on a small percentage of its income and net worth, yet its stock will be entirely exempt from Pennsylvania personal property tax. However, the personal property tax will apply in full to the stock of an otherwise identical corporation with no operations in Pennsylvania. Within this statutory framework, it will be impossible for Pennsylvania to show any equivalence between the capital stock/franchise tax burden and the personal property tax burden. 
• Finally, the Supreme Court held that the North Carolina personal property tax and corporate income tax did not fall on events that were “substantially equivalent,” despite evidence that net income and stock values were closely related, because the taxes were “apparently different in a number of obvious respects, including the parties ostensibly taxed.” North Carolina tried to argue that a tax on shareholders could be equivalent to a tax on a corporation, but the court was not convinced, and expressed doubt that any such showing could ever be made outside the limited confines of sales and use taxes. Pennsylvania would have the same difficulties in claiming that the personal property tax and the capital stock/franchise tax are “substantially equivalent” because, like North Carolina’s taxes, the two taxes fall on different taxpayers. There are other differences between Pennsylvania’s taxes that could cause even greater problems. For example, there is a manufacturing exemption for the capital stock/franchise tax in Pennsylvania, but no equivalent exemption for the personal property tax. A corporation that derives all of its income from manufacturing in Pennsylvania would pay no capital stock/franchise tax in Pennsylvania, and its shareholders would pay no personal property tax. However, the personal property tax would apply to the shareholders of a corporation with the same manufacturing operations entirely outside of Pennsylvania. The capital stock/franchise tax and the personal property tax are simply too different to be considered “substantially equivalent.”

There is, therefore, no reason to believe that Pennsylvania’s personal property tax is distinguishable from the North Carolina tax (at least not in ways that are helpful to Pennsylvania), and every reason to believe that Pennsylvania’s personal property tax is unconstitutional.

Judge Smyth’s Determinations

In the hearing before Judge Smyth, the counties of Pennsylvania that had been imposing the personal property tax attempted to prove that the tax was “compensatory,” meaning that the tax on the stock of corporations not doing business in Pennsylvania was roughly equivalent to the capital stock or franchise tax paid by corporations doing business in Pennsylvania. In his recently published Interim Report, Judge Smyth concluded that the Pennsylvania personal property tax was not “compensatory,” because the capital stock and franchise was not part of a comprehensive scheme of taxing corporations, it does not roughly approximate the personal property tax, and imposes a tax based on “events” that are not similar to the personal property tax.

In its 4/7/98 opinion and order, the Pennsylvania Supreme Court concluded that the personal property tax was discriminatory and unconstitutional unless it was “compensatory,” and Judge Smyth concluded that the tax was not “compensatory.” However, Judge Smyth also concluded that it was not the tax that was unconstitutional, but the exclusion from tax of the stock of corporations not doing business in Pennsylvania. There is a general law that declares that the provisions of statutes in Pennsylvania are “severable.” See 1 Pa.C.S. § 1925. This means that, if a provision of a statute is invalid for any reason, only that one provision should be invalid, and not the entire statute, unless the entire statute cannot (or was not intended to) exist without the invalid provision. In this case, Judge Smyth found that the personal property tax existed in Pennsylvania for more than 50 years without the exemption for the stock of corporations that are subject to the capital stock or franchise tax (i.e., corporations doing business in Pennsylvania), and so the tax could exist without the exemption. Judge Smyth also concluded that the Pennsylvania legislature would have enacted the tax without the exemption if it had known that the exemption was invalid. (Interim Report, page 25.)

What does Judge Smyth’s Decision Mean?

If the personal property tax itself is constitutional and only the exclusion is constitutional, does that mean that the counties not only don’t need to refund any money, but can now go back and collect additional taxes on the value of stocks of Pennsylvania corporations and corporations doing business in Pennsylvania? Not according to Judge Smyth, who said the ruling should operate “prospectively only,” and that the counties can collect a personal property tax on stock of domestic corporations only after adopting new tax resolutions or ordinances.

This portion of Judge Smyth’s report, dealing with the remedies of taxpayers and the powers of the counties, is the most troubling. Judge Smyth concludes that “Since the exclusions are unconstitutional, leaving a valid tax, counties should be permitted to retain and collect the personal property tax on stock that is not subject to the capital stock or franchise taxes.” (Interim Report, page 26.) In other words, counties can keep the money already collected and can even continue to collect the tax. By why? Why are the counties allowed to retain monies collected under a tax system that is admittedly unconstitutional? Even more puzzling is why counties can continue to collect a tax imposed under an unconstitutional system. The only explanation provided by Judge Smyth is that counties and taxpayers “have planned their financial affairs” on the assumption that the tax was constitutional. (Interim Report, page 26.) Is that it? The fact that the Constitution has been violated, and continues to be violated, is all right because the counties had relied on it? Despite the legal and logical flaws in Judge Smyth’s opinion, it is quite likely that the report will be adopted by the Supreme Court of Pennsylvania, and quite likely that the Supreme Court of the United States will not hear any appeal on this dispute.

What Should You Do?

Although it is likely that there will be no refunds of Pennsylvania personal property tax, taxpayers who want to preserve the possibility of a refund must find a claim for a refund, because the present action by Walter H. Annenberg, even if ultimately successful, will not eliminate the need for each taxpayer to file a separate refund claim, and will not stop the statute of limitations from running on refund claims.

In order to obtain a refund of personal property tax to which a county or other political subdivision is not entitled, the taxpayer must file a written claim for refund within three years after the tax is paid. Act of May 21, 1943, P.L. 349, § 1, as amended, 72 P.S. § 5566b. Therefore, if you have paid any personal property tax within the last three years, you can file a refund claim before the end of the three year period.

Taxpayers who did not pay the personal property tax and are now facing collection efforts by the counties also face a difficult choice. It is possible that the Pennsylvania Supreme Court might distinguish between refund claims for past taxes and collection actions, holding that the counties do not need to pay refunds but cannot force a taxpayer to pay a tax that is admittedly unconstitutional, but it is more likely that the Supreme Court will follow the lead of Judge Smyth and agree that the counties may continue to collect the tax for past years. In that case, continuing to delay payment may result in nothing more than additional interest (and possible penalties).