(a)
Generally. This section is issued by the Department to clarify
the scope and application of Chapter 38 (relating to Hotel Occupancy Tax).
Chapter 38 applies solely to the Hotel Occupancy Tax imposed by section 210 of
the TRC (72 P. S. §
7210). The
regulations do not, and statutorily could not, apply to any hotel tax imposed
by any county government of this Commonwealth under other laws enacted by the
General Assembly.
(b)
Enabling statute for Hotel Occupancy Tax. Under section 210 of
the TRC, the General Assembly has imposed "an excise tax of six per cent of the
rent upon every occupancy of a room or rooms in a hotel in this Commonwealth,
which tax shall be collected by the operator from the occupant and paid over to
the Commonwealth" as provided by the TRC. It is the responsibility of the
Department to collect for the Commonwealth all taxes imposed by Article II of
the TRC, including the Hotel Occupancy Tax. See
72 P. S. §§
7270-7277 (relating to
enforcement and examinations).
(c)
Enforcement and regulatory responsibility with regard to Hotel
Occupancy Tax statute.
(1)
Enforcement. As part of its responsibility to enforce and
administer the taxes imposed by Article II of the TRC, the Department is
authorized and empowered by section 270(a) of the TRC (72 P. S. §
7270(a)) to prescribe rules
and regulations relating to the administration and enforcement of Article
II.
(2)
Exemptions. Acting under its authority under section 270(a),
the Department promulgated Chapter 38. Section
38.1 (relating to imposition and
computation of tax) prescribes rules and methods for the imposition and
computation of the Hotel Occupancy Tax. Section
38.2 (relating to exemptions)
establishes certain exemptions from the Commonwealth's Hotel Occupancy Tax.
Under §
38.2, there are exemptions provided for permanent residents;
ambassadors, ministers and consular officers of foreign governments;
occupancies of hotel rooms by United States Government personnel; and
occupancies of hotel rooms by other exempt entities. See §
38.2(a)-(d).
(3)
Requirement.
(i) Having
listed in §
38.2 the hotel occupancies exempt
from the Hotel Occupancy Tax, the Department included a final subsection
providing explicitly certain hotel occupancies that are not exempt from the
Hotel Occupancy Tax. Section
38.2(f) provides
as follows:
(f)
Others not exempt. No person or entity
other than those referred to in this section may be exempt from the Hotel
Occupancy Tax. Occupancy by employees or representatives of the Commonwealth,
its instrumentalities or political subdivisions, is not exempt from hotel
occupancy tax, regardless of the nature of the business upon which the employee
or representative is engaged, and regardless of the identity of the person or
agency paying for the occupancy. Occupancy by employees or representatives of
State credit unions is not exempt from the tax. Exemption from the sales and
use tax portion of the TRC granted to persons, organizations or institutions,
including exemptions granted to religious organizations, charities, educational
institutions and the like, are not applicable to the Hotel Occupancy Tax, and
those persons, organizations or institutions are required to pay tax upon their
occupancy of hotel rooms.
(ii) As is true of all of Chapter 38, §
38.2(f) applies
solely and exclusively to the Hotel Occupancy Tax imposed by section 210 of the
TRC and collected by the Department.
(d)
Applicability of §
38.2 to certain county
taxes.
(1) Several county
governments of this Commonwealth have cited to §
38.2(f) as their
authority to impose and collect certain county taxes imposed on hotel room
rentals made to officials and employees of the Commonwealth while engaged in
official Commonwealth business. These counties have refused to honor exemptions
from the county taxes claimed by the Commonwealth and have cited to §
38.2(f) as their
legal basis for refusing the claimed exemptions.
(2) As the agency that promulgated §
38.2(f) and
administers and enforces the Commonwealth's Hotel Occupancy Tax imposed under
the TRC, the Department issued this section to make clear the limited scope and
applicability of Chapter 38. Promulgated by the Department under its authority
under the TRC solely to enforce and administer the Hotel Occupancy Tax imposed
by section 210 of the TRC, Chapter 38 of the Department's regulations has, and
statutorily could have, no application to taxes imposed by county governments
under separate statutory authority. Therefore, §
38.2(f) cannot
properly be cited as a basis for a county government to impose a hotel room
rental tax upon a Commonwealth official or employee staying overnight in a
hotel in the course of performing official Commonwealth
business.
