RULES AND REGULATIONS
Title 61—REVENUE
DEPARTMENT OF REVENUE
[ 61 PA. CODE CH. 1001 ]
Amendments to Pennsylvania Gaming Cash Flow Management
[41 Pa.B. 41]
[Saturday, January 1, 2011]The Secretary of Revenue, under 4 Pa.C.S. Part II (relating to Pennsylvania Race Horse Development and Gaming Act) (act), specifically section 1501 of the act (relating to responsibility and authority of department), amends Chapter 1001 (relating to Pennsylvania gaming cash flow management). The act of January 7, 2010 (P. L. 1, No. 1) (Act 1) further amended the act to authorize table games in this Commonwealth. The Department of Revenue (Department) adopts this final-omitted rulemaking to facilitate its responsibilities of cash flow management of table game revenue under the act.
Because of time constraints associated with implementation of Act 1, the Department, under section 204 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204), known as the Commonwealth Documents Law (CDL), and the regulation thereunder, 1 Pa. Code § 7.4 (relating to omission of notice of proposed rulemaking), finds that notice of proposed rulemaking, under the circumstances, is impracticable and, therefore, may be omitted.
The Department's justification for utilizing the final-omitted rulemaking process is that it is in the public interest to implement the regulations for the cash flow management of table game revenue to facilitate prompt implementation of its responsibilities as defined by the act.
Purpose of Final-Omitted Rulemaking
The timely adoption of this final-omitted rulemaking will provide procedures for the administration and distribution of gross table game revenue.
The act legalizes the operation of table games at a number of venues across this Commonwealth. The Pennsylvania Gaming Control Board (Board) has the primary responsibility for regulatory oversight of gaming activity in this Commonwealth and is separately promulgating regulations in 58 Pa. Code Part VII (relating to Gaming Control Board).
Explanation of Regulatory Requirements
The Department is amending Chapter 1001 to promulgate regulations necessary to implement the cash flow management of table game revenue in this Commonwealth for accurate accounting and collection of revenues due the Commonwealth from table gaming operations.
A broad change has been made throughout the regulations to add ''and certificate holder'' to the term ''licensed gaming entity.'' For purposes of the regulations, the two terms are used in tandem. Other amendments to the regulations include the following:
Sections 1001.1 and 1001.2 (relating to scope; and purpose) are amended to add the term ''gross table game revenue.''
Section 1001.3 (relating to definitions) amends the following definitions: ''annual minimum distribution'' is revised to reflect changes to section 1403(c)(3) of the act (relating to establishment of State Gaming Fund and net slot machine revenue distribution); ''CCS'' is revised to accurately reflect the parameters of the system; and ''fund'' is amended by adding ''and gross table game revenue.''
In addition, three definitions are added to facilitate the responsibilities of cash flow management of table game revenue under this act: ''certificate holder,'' ''General Fund'' and ''gross table game revenue.''
Section 1001.4(b) (relating to calculations of credit against tax and Race Horse Improvement Daily Assessment) is amended to reflect changes to sections 1406(a)(2) and (2.1) of the act (relating to distributions from Pennsylvania Race Horse Development Fund).
''Certificate holders'' is added to the heading of § 1001.5 (relating to administration and distribution of moneys held by licensed gaming entities, certificate holders and the Commonwealth). The term ''General Fund'' is added in subsection (a). Subsection (b) contains new paragraphs that are inserted regarding ''deposits and transfers of gross table game revenue to Treasury by certificate holders.'' Former subsection (b) is renumbered to subsection (c) and has been amended to delete ''on the same banking day'' to reflect a change in Department procedure. Former subsection (c) is renumbered to subsection (d). Subsection (d)(1) and (2) contains new references to appropriate sections of the act regarding distributions of local share assessments.
The heading and text of § 1001.6 (relating to administration of amounts deposited by licensed gaming entities and certificate holders with Treasury to pay Commonwealth gaming related costs and expenses) are amended to remove the ''($5 million)'' references and add ''certificate holders.'' Language has been inserted with references to the appropriate section of the act.
Section 1001.7 (relating to deposits of license, permit and other fees) has been amended to include new language regarding deposits of table game fees and fines within the General Fund.
Section 1001.8 (relating to State Gaming Fund transfers) contains several amendments. Subsection (b)(2) is amended to replace the January 1 publication date of the annual inflation adjustment notice with February 1. This new date reflects a more accurate time frame for filing the notice. The Department is required to utilize the Consumer Price Index, which is released in January, for the annual inflation adjustment. Subsection (c)(1) and (2) have been amended to add language regarding the certificate holders' reporting of table game revenue to the Department.
Section 1001.10(b) (relating to Pennsylvania Race Horse Development Fund transfers) is amended to add language referencing exceptions in the act regarding distributions from the Pennsylvania Race Horse Development Fund.
Fiscal Impact
The Department determined that the final-omitted rulemaking will have minimal fiscal impact on the Commonwealth.
Paperwork
The final-omitted rulemaking will not generate substantial paperwork for the public or the Commonwealth.
Effectiveness/Sunset Date
The final-omitted rulemaking will become effective upon publication in the Pennsylvania Bulletin. The regulations are scheduled for review within 5 years of publication. A sunset date has not been assigned.
Contact Person
The contact person for an explanation of the final-form rulemaking is Mary R. Sprunk, Office of Chief Counsel, Department of Revenue, Dept. 281061, Harrisburg, PA 17128-1061.
Regulatory Review
Under section 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)), on November 3, 2010, the Department submitted a copy of the final-omitted rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Finance and the Senate Committee on Finance. On the same date, the final-omitted rulemaking was submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101— 732-506).
Under section 5.1(j.1) of the Regulatory Review Act, on December 15, 2010, the final-omitted rulemaking was deemed approved by the Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on December 16, 2010, and approved the final-omitted rulemaking.
Findings
The Department finds that:
(1) Under section 204 of the CDL, the Department also finds that the proposed rulemaking procedures in sections 201 and 202 of the CDL (45 P. S. §§ 1201 and 1202) are unnecessary because it is in the public interest to expedite this rulemaking that reduces the burden to the taxpayer.
(2) The regulations are necessary and appropriate for the administration and enforcement of the authorizing statute.
Order
The Department, acting under the authorizing statute, orders that:
(a) The regulations of the Department, 61 Pa. Code Chapter 1001, are amended by amending §§ 1001.1—1001.8 and 1001.10 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Secretary shall submit this order and Annex A to the Office of General Counsel and Office of Attorney General for approval as to form and legality as required by law.
(c) The Secretary shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
C. DANIEL HASSELL,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 41 Pa.B. 118 (January 1, 2011).)
Fiscal Note: 15-450. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 61. REVENUE
PART IX. PENNSYLVANIA GAMING CASH FLOW MANAGEMENT
CHAPTER 1001. PENNSYLVANIA GAMING CASH FLOW MANAGEMENT
GENERAL PROVISIONS § 1001.1. Scope.
This chapter establishes procedures for the administration and distribution of all net slot machine revenue, gross table game revenue, collection of tax and collection of other assessments under the act. In addition, this chapter clarifies the administrative procedures for transferring the statutorily established amounts of funding as prescribed in the act.
§ 1001.2. Purpose.
The purpose of this chapter is to notify prospective licensed entities and certificate holders, as well as the general public, of the procedures and requirements for distributing net slot machine revenue, gross table game revenue, collection of tax and collection of other assessments.
§ 1001.3. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.
* * * * * Annual minimum distribution—As provided under the act, 2% of the gross terminal revenue of the licensed gaming entity or $10 million, whichever is greater.
* * * * * CCS—The central control computer system controlled by the Department and accessible by the Board, to which all slot machines communicate for the purpose of recording, reviewing, reporting and auditing real-time information regarding the events that occur during the operation of a slot machine. The system calculates the taxes and assessments due daily and provides information to the Department to track daily deposits.
Certificate holder—As defined in section 1103 of the act (relating to definitions).
* * * * * Fund—A fiscal and accounting entity with a self-balancing set of accounts recording cash and other financial resources, together with all related liabilities and residual equities or balances and the changes therein, that are segregated for the purpose of carrying on specific activities or attaining certain objectives established for the receipt of gross terminal revenue distributions and gross table game revenue under the act.
General Fund—The fund into which general, non-earmarked revenues of the Commonwealth are deposited and from which monies are appropriated to pay the general expenses of the Commonwealth.
Gross table game revenue—As defined in section 1103 of the act.
* * * * * § 1001.4. Calculations of credit against tax and Race Horse Improvement Daily Assessment.
(a) Credit against tax. The amount of the credit must be equal to the difference between the tax calculated at the rate in effect when a license was issued to the licensed gaming entity and certificate holder and the tax calculated at the increased rate. The credit shall be applied on a dollar-for-dollar basis but may not extend beyond the 10-year period following the initial issuance of the license.
(b) Race Horse Improvement Daily Assessment. The amount of this assessment shall be calculated in accordance with section 1405(b) of the act (relating to Pennsylvania Race Horse Development Fund).
§ 1001.5. Administration and distribution of moneys held by licensed gaming entities, certificate holders and the Commonwealth.
(a) Application of section. This section applies to the collection of tax, the collection of other assessments and all transfers of moneys to and from the General Fund, State Gaming Fund, Pennsylvania Gaming Economic Development and Tourism Fund, Pennsylvania Race Horse Development Fund and any other fund as specified in this chapter.
(b) Deposits and transfers of gross table game revenue to Treasury by certificate holders.
(1) Certificate holders shall make computations of table game revenue in accordance with section 13A62 of the act (relating to table game taxes), on a daily basis and report the computed amount to the Department on a weekly basis on the form and in the manner prescribed by the Department.
(2) A deposit is required to be made at the time the report is submitted to the Department into the Department's collection account established to collect the taxes and assessments.
(c) Deposits and transfers to Treasury by licensed gaming entities.
(1) The Department will notify each licensed gaming entity, Treasury and Office of the Budget of the actual amount each licensed gaming entity shall be required to deposit with Treasury as calculated by the CCS in accordance with sections 1323, 1403 and 1405—1407 of the act. A licensed gaming entity shall make deposits with Treasury after receipt of the Department's notice to the licensed gaming entity and by the date and times specified by the Department.
(2) Payments shall be electronically transferred by the licensed gaming entities and available to the Commonwealth by the deadline established by the Department. Moneys shall be deposited in the Department's Collection Account.
(3) System problems or failures, such as power outages and states of emergency, will not excuse the licensed gaming entity from making the required deposits in a timely manner. The licensed gaming entity shall immediately notify the Department and the Board of any of these problems.
(4) The Department will maintain records of deposits to the Department's Collection Account under this chapter and will share information, as practicable, to assist Treasury in its reconciliation of deposits into its Concentration Account.
(5) The administration of assessments will be as follows:
(i) Proration of assessment. Upon imposition of the annual minimum distribution amount, as specified in section 1403(c)(3) of the act (relating to establishment of State Gaming Fund and net slot machine revenue distribution), regardless of whether the minimum is subject to the budgetary limitations of section 1403 of the act, the required minimum shall be prorated for that portion of the municipality's fiscal year that the Board determines that the licensed gaming entity was actually in operation.
(ii) Limitation of assessment. Upon imposition of the minimum distribution upon the licensed gaming entity, the required minimum shall be paid in accordance with the administrative procedures of this section.
(6) The Department reserves the right, upon notice served upon the licensed gaming entity and the Board, to temporarily disable the licensed gaming entity's slot machines through the CCS until the Department receives verification that the required deposit has been made.
(d) Distributions of local share assessments.
(1) Distributions of local share assessments to municipalities. If a licensed gaming entity and certificate holder fails to reach the requisite annual minimum distribution as required under the act within 15 days following the end of the municipality's fiscal year, the Department will notify the licensed gaming entity and certificate holder of the shortfall and the amount to be remitted. A licensed gaming entity and certificate holder shall remit the difference required to meet the requisite annual minimum distribution as required under the act within 15 days following the end of the municipality's fiscal year. The licensed gaming entity and certificate holder shall remit the required payment to the Department for distribution in accordance with sections 1403(c)(3) and 13A63(c) of the act (relating to establishment of state gaming fund and net slot machine revenue distribution; and local share assessment). Distributions specified in this chapter shall be made by the licensed gaming entity and certificate holder to the Department, no later than 15 days from the Department's notice of the shortfall.
(2) Distributions of local share assessments to counties. The Department will make distributions in accordance with sections 1403(c)(2) and 13A63(b) of the act. If the minimum distribution exceeds the applicable annual municipal allocation cap in section 1403(c)(3) of the act, the amount in excess of the municipal allocation cap shall be distributed by the Department in accordance with section 1403(c)(2) of the act.
§ 1001.6. Administration of amounts deposited by licensed gaming entities and certificate holders with Treasury to pay Commonwealth gaming related costs and expenses.
(a) No later than 2 business days prior to the commencement of slot machine operations, the licensed gaming entity and certificate holder shall make all deposits required under section 1401 of the act (relating to slot machine licensee deposits) in the Department's Collection Account. Upon transfer of the deposit into Treasury's Concentration Account, the deposit shall be credited to an account established in Treasury for the licensed gaming entity and certificate holder. The account established shall also be used to recognize and account for all future deposits required from the licensed gaming entity and certificate holder by the Department for administrative costs and all future withdrawals made by the Department for reimbursement of administrative costs.
(b) Each licensed gaming entity and certificate holder shall maintain a minimum account balance with Treasury in accordance with section 1401 of the act.
(c) Moneys related to this account shall be transferred to the Department's Collection Account and from Treasury by EFT or other methods of funds transfer in accordance with § 1001.5(c) (relating to administration and distribution of moneys held by licensed gaming entities, certificate holders and the Commonwealth).
(d) Reimbursement of Commonwealth expenses will be as follows:
(1) The Department will issue to the licensed gaming entity and certificate holder, periodic assessments of expenses incurred by the Board, Department, Office of Attorney General and the Pennsylvania State Police, regarding expenses directly related to the licensed gaming entity and certificate holder, under budgets approved by the Board and upon appropriation by the General Assembly as required in section 1402.1 of the act (relating to itemized budget reporting). Expenses not included in budgets approved by the Board may not be assessed against the licensed entity under this section.
(2) Expenses incurred by the Commonwealth and assessed to the licensed gaming entity and certificate holder shall be charged back to the licensed gaming entity and certificate holder and deducted from the licensed gaming entity's and certificate holder's account, as specified in section 1401 of the act (relating to slot machine licensee deposits) and this section.
(3) General administrative costs of the Commonwealth not specifically assessed to a licensed gaming entity and certificate holder under paragraph (1), shall be borne by each licensed gaming entity and certificate holder on a pro rata basis, at the discretion of the Secretary of Revenue until all Category 1 and Category 2 licensed gaming entities and certificate holders are operating as permitted under the act.
§ 1001.7. Deposits of license, permit and other fees.
The fees for manufacturers' and suppliers' licenses, employment permits and other licenses and permits as the Board may require, excluding license fees paid for Categories 1, 2 and 3 licenses under sections 1209 and 1305 of the act (relating to slot machine license fee; and Category 3 slot machine license), shall be deposited with Treasury into a restricted receipt account within the State Gaming Fund. Fees to be paid under section 13A61 of the act (relating to table game authorization fee) and fees related to table games to be paid under section 1208 of the act (relating to collection of fees and fines) shall be deposited within the General Fund in accordance with section 13A61(f). The fees deposited within the Gaming Fund will be transferred from a restricted receipt account into a restricted revenue account of the State Gaming Fund to be used by the Board to pay its operating expenses. License fees paid for Categories 1, 2 and 3 licenses under sections 1209 and 1305 of the act shall be paid into the State Gaming Fund in accordance with sections 1209(d) and 1305 of the act.
§ 1001.8. State Gaming Fund transfers.
(a) Application of section. This section applies to the transfers of moneys to and from the State Gaming Fund.
(b) Quarterly distributions. Quarterly distributions from the State Gaming Fund to counties or municipalities in which a licensed facility is located, as determined by the Board, and as specified in Chapter 14 of the act (relating to revenues), shall be performed in accordance with the Governor's Management Directive 305.4 (relating to payments to counties), § 1001.5 (relating to administration and distribution of moneys held by licensed gaming entities, certificate holders and the Commonwealth) and the following provisions:
(1) The Department will submit payment requisitions, accompanied by documentation, to the Office of the Budget for payment through Treasury.
(2) The Department will determine the annual inflation adjustment and will publish notice of the inflation adjustment in the Pennsylvania Bulletin by February 1 of each year.
(3) The Department will make distributions quarterly, no later than 30 days following the end of each calendar quarter.
(c) Tax, assessments and credit against tax.
(1) Determinations of gross terminal revenue and the calculations of taxes and other assessments due will be determined by the Department based on the actual calculations by the CCS and the certificate holders' weekly reports of table game revenue made to the Department.
(2) Except in the case of gross table game revenue which will be self-reported to the Department by the certificate holders, the Department will notify each licensed gaming entity and Treasury of the amount of tax and other assessments due to the Commonwealth.
(3) Each licensed gaming entity and certificate holder shall deposit the amount specified in paragraph (2) into the Department's Collection Account, in the manner prescribed under § 1001.5(c).
(4) The Department will enter into an agreement with each licensed gaming entity setting forth the terms and conditions of any credit against tax as claimed by the licensed gaming entity.
(5) Taxes and other assessments due as determined by the Department shall remain payable by the licensed gaming entity and certificate holder to the Department in accordance with section 1501(a) of the act (relating to responsibility and authority of department) regardless of any discrepancies between the licensed gaming entity's and certificate holder's calculation and that of the Department's or amounts contested by any party concerning the credit against taxes due. Resolution of disputed payments due will be addressed by the Department through adjustments it makes to its calculation of future payment amounts due. The Department may make adjustments to its calculation of future payment amounts due after resolution of any dispute regarding the amount of taxes due. The Department will provide notice to the Board of the final calculations of taxes due under this subsection.
(6) Any remittance due that is caused by the imposition of the tax or other assessments on nonbanking days as well as holidays shall be remitted by the licensed gaming entity and certificate holder on the next banking day. For example, any tax that has accrued on Independence Day shall be transferred on the following banking day.
(d) Imposition of a penalty. Failure to comply with this section that results in the failure to transmit the requisite amounts to the Department's Collection Account shall result in the imposition of a penalty of 5% per month up to a maximum of 25% of the amounts due and unpaid by the licensed gaming entity and certificate holder. Payments made by a licensed gaming entity toward delinquent amounts, including penalties, shall be allocated to the licensed gaming entity's delinquency in accordance with the priority of payments as specified under section 209 of the Taxpayers' Bill of Rights (72 P. S. § 3310-209).
§ 1001.10. Pennsylvania Race Horse Development Fund transfers.
(a) Prior to making each Race Horse Improvement Daily Assessment against a licensed gaming entity, the Department will determine the amount of each licensed gaming entity's gross terminal revenue.
(b) Except as provided in section 1406(a)(2) and (2.1) of the act (relating to distributions from Pennsylvania Race Horse Development Fund), 18% of the gross terminal revenue of each Category 1 licensed gaming entity shall be returned to each active and operating Category 1 licensed gaming entity that conducts live racing subject to the assessment cap in section 1405(c) of the act (relating to Pennsylvania Race Horse Development Fund), and subject to the allocations specified in section 1406(a)(1)(i)—(iii) of the act.
(c) Procedures concerning Pennsylvania Race Horse Development transfers are as follows:
(1) Department personnel will notify the respective licensed gaming entity and Treasury of the actual amount each licensed gaming entity shall be required to deposit in the Department's Collection Account as determined by the CCS. Deposits shall be made on the same banking day as the date of the notice by the Department.
(2) Moneys shall be transferred by the licensed gaming entity by EFT or other method as the Department may require and shall be deposited in the Department's Collection Account prior to being transferred to Treasury's Concentration Account.
(3) System problems or failures, such as power outages and states of emergency, will not excuse the licensed gaming entity from making the required deposits in a timely manner. The licensed gaming entity shall immediately notify the Department and the Board of any of these problems.
(4) The Department will maintain records of the Department's Collection Account under this chapter and will share information as practicable, to assist Treasury in its reconciliation of deposits to its Concentration Account.
(d) The Department will notify each active and operating Category 1 licensee conducting live racing, Treasury and Office of the Budget of the amounts each active and operating Category 1 licensee conducting live racing will receive. An eligible Category 1 licensee will receive from Treasury a weekly payment from the Pennsylvania Race Horse Development Fund in accordance with the act. The deposits required under section 1406(a)(1)(ii) of the act will be deducted by the Department before making the payment to each active and operating licensee and transferred to the appropriate State fund, under section 1406 of the act.
(1) Payments will be electronically transferred by the Commonwealth and will be available to the licensee by the deadline established by the Department.
(2) Both Treasury and the Department will maintain records of distributions under this chapter and will share information, as practicable, to assist each agency in its reconciliation process.
(e) For purposes of the calculations and distributions of section 1406(a) of the act, live racing will be determined annually, and as a Category 1 licensed gaming entity commences live racing in accordance with section 1303(b) of the act (relating to additional Category 1 slot machine license requirements).
[Pa.B. Doc. No. 11-6. Filed for public inspection December 30, 2010, 9:00 a.m.]
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