Pennsylvania State and Local Tax Update—Fourth Quarter 2023

The last three months of 2023 offered some interesting developments of note for Pennsylvania taxpayers, particularly those who work in Delaware and New York, Philadelphia residents, and executors of trusts.

Philadelphia Wage Tax Credit Denied

In a 3-2 decision, the Pennsylvania Supreme Court upheld the Commonwealth Court and sided with the Philadelphia Department of Revenue in Zilka v. Tax Review Board, a case addressing whether a city resident was entitled to a credit for state-level taxes paid to Delaware.

During the tax years at issue, the taxpayer lived in Philadelphia but worked full-time in Wilmington, Del. Accordingly, she was subject to state and local tax in Delaware as well as to Pennsylvania personal income tax and city wage tax.

Under the Pennsylvania and Philadelphia laws, she was able to claim a credit for Delaware tax against her personal income tax liability. Likewise, she was able to claim a credit for Wilmington tax against her wage tax liability. The city, however, denied her claim for a credit against wage tax based on the tax paid to Delaware that she was unable to use against her Pennsylvania liability.

The taxpayer appealed, arguing that denying the credit amounted to unconstitutional double taxation. The high court agreed that the city’s taxing system is constitutional and that the city is required by the state constitution to give a credit only for taxes paid to other local jurisdictions, not for state-level taxes.

The court reasoned that any increased tax burden was the result of rate disparities between the various jurisdictions and that, because of her living and work arrangements, the taxpayer was effectively subject to state tax at the Delaware rate and local tax at the city rate because those rates are higher than their counterparts.

This case is a blow to taxpayers who live in Pennsylvania (and particularly in Philadelphia) but who are subject to income tax in states with which Pennsylvania doesn’t have reciprocity (including Delaware and New York) because those taxpayers are essentially subject to two taxing systems and may not be able to fully use credits.

Property Tax Uniformity Challenges

In Downingtown Area School District v. Chester County Board of Assessment Appeals, the Commonwealth Court held that Downingtown’s policy of appealing any real property tax assessment that “may potentially result in total annual revenue of $10,000 or more” violated the uniformity clause of the Pennsylvania constitution.

The court reasoned that the purpose of the appeal process is to correct mistakes in the most recent countywide reassessment and not to function as a substitute for a countywide reassessment.

It found that by targeting only assessment appeals that were likely to result in material revenue to the school district, the district was unfairly burdening owners of overassessed properties. It also found that the threshold therefore created a “systematic and disparate treatment” of property owners.

In School District of Philadelphia v. Board of Revision of Taxes, the Commonwealth Court addressed nearly identical facts and the Philadelphia school district’s policy of appealing any real property tax assessment where it was “reasonably likely that an appeal of [the] assessed value will yield a minimum of an additional $7,500.” The court again found that this policy violated the uniformity clause.

As shown by these cases, school districts likely will continue to target certain types of properties for real estate tax appeals and the Pennsylvania Supreme Court may need to weigh in again on the constitutional limits of such policies. Buyers should consider this possibility when determining the appropriate purchase price for a property.

Realty Transfer Tax Ruling

In a case involving realty transfer taxes, or RTT, the Commonwealth Court held in Ebersole v. Commonwealth that deleting a contingency clause with retroactive effect—which authorizes distributions to persons other than the grantor if one of the grantors became incapacitated—allowed a trust to qualify as a living trust.

Under the RTT law, transfers to living trusts may be exempt from RTT, but only if the distributions from the transferee trust can be made only to the settlor(s) prior to the death of the settlor(s). As originally drafted, the trust at issue would have allowed the trustee, in the case of incapacity, to make distributions to charitable organizations.

That language would have rendered the transfer to the trust taxable. However, the Commonwealth Court overruled the Board of Finance and Revenue and held that an amendment to the trust, which was approved by the Orphans’ Court and retroactive to the formation date of the trust, reflected the intent of the grantor and meant that the transfer was exempt as a transfer to a living trust.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Christopher A. Jones co-leads Ballard Spahr’s tax and real estate team, focused on a wide range of matters, including tax consequences of complex transactions and associated planning opportunities.

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