The opinion of the court was delivered by: Judge McCULLOUGH
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
The Commonwealth of Pennsylvania has filed exceptions to this court's panel opinion and order, which reversed the April 28, 2006, order of the Board of Finance and Revenue (Board).*fn1 In our initial opinion we held that All Staffing, Inc. (Taxpayer) did not provide its clients with taxable "help supply services" as that term is defined by section 201(cc) of the Tax Reform Code of 1971 (Tax Code).*fn2 After review, we deny the exceptions.
The underlying facts are not in dispute*fn3 and may be summarized briefly as follows. Taxpayer is a Professional Employer Organization (PEO) and provides certain human-resources-related services to its clients through the mechanism of placing the clients' employees on its payroll; this arrangement enables Taxpayer to deliver its services at a competitive cost due to the savings realized from using a single computer payroll data system and specialized human relations knowledge for a large number of clients.*fn4 Taxpayer provides its services pursuant to agreements with its clients under which Taxpayer is considered the "Administrative Employer" and the client is considered the "Worksite Employer." In its capacity as Administrative Employer, Taxpayer performs all aspects of personnel administration, such as payroll, tax preparation, benefit plan administration, unemployment compensation account administration, and the administration of workers' compensation claims, thereby acting as each Worksite Employer's off-site human resources department. The Worksite Employer reimburses Taxpayer for all costs of the worksite employees placed on Taxpayer's payroll. The human resources services that Taxpayer provides for its clients are performed by Taxpayer's own personnel under Taxpayer's supervision, and Taxpayer charges its clients an administrative fee for performing these various PEO services. The Department's tax assessment relates solely to this service fee.
Although the clients' employees are transferred to Taxpayer's payroll, they do not perform any PEO services. Instead, just as before the transfer, the Worksite Employer retains control and direction over these individuals' day-to-day activities, and the Worksite Employer makes all decisions concerning personnel issues, including hiring, wages, discipline, and discharge. Taxpayer has no inventory of potential employees to add to the Worksite Employer's workforce; the Worksite Employer always selects additions to its workforce from sources other than Taxpayer.
The Pennsylvania Department of Revenue (Department) determined that Taxpayer's PEO services, as described above, constituted taxable "help supply services" and assessed sales tax on Taxpayer's fees for these services in the amount of $149,525.80.*fn5 The Department also assessed a use tax of $5,765.01, penalties of $46,584.13 and interest of $15,435.16, for a total of $217,313.10. Taxpayer filed a reassessment appeal which was denied by the Department's Board of Appeals. On further appeal, the Board affirmed that decision, agreeing that, because Taxpayer places all of the employees of a client on Taxpayer's payroll, its business activities are "help supply services" and, thus, the fees Taxpayer charges for its services are subject to sales tax pursuant to section 201(cc) of the Tax Code.
Taxpayer then petitioned this Court for review of the Board's order. We reversed, observing that the human relations services Taxpayer provides do not include providing individuals to supplement a client's workforce and concluding that Taxpayer's PEO services do not constitute "help supply services." These exceptions followed.
The Department reiterates its argument that the fee that Taxpayer receives from a client for providing the services detailed above is the "purchase price" of a "help supply services" transaction subject to sales tax.
Section 201(cc) of the Tax Code defines "help supply services" as follows:
Providing temporary or continuing help where the help supplied is on the payroll of the supplying person or entity, but is under the supervision of the individual or business to which help is furnished. Such services include, but are not limited to, service of a type provided by labor and manpower pools, employee leasing services, office help supply services, temporary help services, usher services, modeling services or fashion show model supply services.
72 P.S. §7201(cc) (emphasis added). And in relevant part, the Department's regulation defines a "help supply service" as:
The providing of an individual by a vendor to a purchaser whereby the individual is an employe of the vendor and the work performed by the individual is under the supervision of the purchaser.
(i) The term includes the type of service provided by labor and manpower pools, employe leasing services, office help supply services, temporary help services, usher services, modeling services or fashion show model supply services.
61 Pa. Code §60.4(a)(i) (emphasis added). The Department set forth examples of taxable help supply services at 61 Pa. Code §60.4(d), which include the following circumstances: 1) a law firm needs a secretary for a day and obtains the secretary from a vendor; 2) a construction company requires the services of an engineer and obtains the engineer from a vendor; and 3) an accounting firm needs more personnel than they have ...