F. J. Busse Co. v. City of Pittsburgh

• Decision Date: 28 June 1971
• Citation: 279 A.2d 14,443 Pa. 349
• Parties: F. J. BUSSE COMPANY, a Corporation et a., Appellants, v. CITY OF PITTSBURGH, a Municipal Corporation et al.
• Court: Pennsylvania Supreme Court

Page 14

279 A.2d 14

443 Pa. 349

F. J. BUSSE COMPANY, a Corporation et a., Appellants, v. CITY OF PITTSBURGH, a Municipal Corporation et al.

Supreme Court of Pennsylvania.

June 28, 1971.

Rehearing Denied Aug. 20, 1971.

John G. Kish, Brennan & Brennan, T. Robert Brennan, Pittsburgh, for appellants.

Ralph Lynch, Jr., Frederick A. Boehm, Eugene B. Strassburger, III, Marion K. Finkelhor, Asst. City Sol., Pittsburgh, for appellees.

Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

POMEROY, Justice.

The City of Pittsburgh, as a municipal corporation and a city of the second class, acting under the authority of the Local Tax Enabling Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6901 et seq. (Supp.1971) (hereinafter 'the Act' of 'the Enabling Act') enacted Ordinance No. 675 of 1968, known as the Business Privilege Tax Ordinance, imposing a tax upon the privilege of engaging in business in the City of Pittsburgh. This tax is measured by the gross receipts of a business and is assessed at the rate of six mills per dollar of volume of gross annual receipts. The appellants, a group of domestic and foreign corporations engaged in the contracting and construction industry, filed a complaint in equity attacking the validity of the ordinance and seeking to have the City and its officials enjoined from collecting the tax. The chancellor found the tax ordinance to be valid and applicable to the appellants; after exceptions his degree was affirmed and made final by the court En banc. This appeal followed.

The appellants assert that the ordinance should be invalidated for a variety of reasons, to wit: (1) the City had no authority to enact such an ordinance by virtue of the provisions of the Act; (2) the tax imposed by the ordinance duplicates already existing state taxes on the same property or subject mater; (3) the tax imposed by the ordinance violates the uniformity clause of the Pennsylvania Constitution (Art. VIII, Sec. 1) P.S.; (4) the ordinance contains an unlawful delegation of legislative authority to the treasurer of the City of Pittsburgh; and (5) the tax imposed by the ordinance exceeds the maximum rate which under the Act is allowed for a mercantile tax. We find none of these arguments persuasive and affirm the order of the lower court. ¹

(1) The Act is a substantial re-enactment of the so-called'Tax Anything Act' of June 25, 1947, P.L. 1145, as amended, 53 P.S. § 6851 et seq. See University Club v. Pittsburgh, 440 Pa. 562, 271 A.2d 221 (1970); Wilkes-Barre Appeal, 208 Pa.Super. 424, 222 A.2d 499 (1966). See also Crawford v. Southern Fulton School District, 431 Pa. 324, 246 A.2d 332 (1968); Lynch v. Owen J. Roberts Sch. Dist., 430 Pa. 461, 244 A.2d 1 (1968). The 1947 Act represented a legislative grant of power to the municipalities to tax anything except in those areas specifically forbidden by statute. See Rose Twp. v. Hollobaugh, 179 Pa.Super. 284, 288--289, 116 A.2d 32 (1955). Clearly, the 1965 reenactment represents a similar grant of power, for Section 3 of the 1965 Act declares, in the same language as the 1947 Act, that:

'It is the intention of this section to confer upon such political subdivision the power to levy, assess and collect taxes upon any and all subjects of taxation, except as above restricted and limited, which the Commonwealth has power to tax but which it does not now tax or license, * * *'

Despite the above quoted language, appellants assert that a municipality may not provide for a business privilege tax because that particular tax is nowhere mentioned in the Enabling Act. We cannot accept such a narrow interpretation. Section 2 of the Act generally states that municipalities may provide for taxes on 'persons, transactions, occupations, privileges, subjects and personal property.' It then carves out certain exclusions from the broad grant. Nowhere is it stated that business privilege taxes are outside the range of the taxing powers granted. We find, accordingly, that the City of Pittsburgh did have the power to enact the contested ordinance. ² See University Club v. Pittsburgh Supra; McGillick v. Pittsburgh, 415 Pa. 581, 203 A.2d 480 (1964); O. H. Martin Co. v. Sharpsburg Borough, 376 Pa. 242, 102 A.2d 125 (1954); Federal Drug Co. v. Pittsburgh, 358 Pa. 454, 57 A.2d 849 (1948).

(2) Appellants next assert that even if the City did have the power to enact a business privilege tax, this tax is invalid as applied to them because, in contravention of Section 2(3) of the Act, the ordinance imposes a tax on the privilege of employing tangible property which is presently the subject of state taxation. ³ Section 2(3) of the Enabling Act does prohibit municipalities from taxing the privilege of employing 'such tangible property as is now or does hereafter become subject to a State tax.' The mere fact, however, that tangible property is utilized in exercising the privilege or conducting the activity being taxed, does not Per se convert the tax on that privilege or activity into a tax on the privilege of using the property. See Plymouth Lanes v. Plymouth Twp., 415 Pa. 206, 202 A.2d 811 (1964). Clearly, carrying on a business such as that in which the appellants are engaged, namely the business of construction, involves much more more than the use of the tangible property employed in the structures themselves. In order successfully to complete almost any project, a contractor must necessarily employ and supervise his own labor force, negotiate subcontracts, coordinate the supporting contractors and services, comply with the restrictions and conditions imposed by government regulatory authorities, and perform miscellaneous other functions. It is only in the very rare case where the business itself consists only of the use of tangible property already being taxed by the state, and where the tax is measured by the amount of such property being used, that under similar provisions of earlier enabling statutes we have invalidated a tax on the theory appellants assert. See Centerville Borough School District Tax Case, 362 Pa. 400, 67 A.2d 378 (1949); Hampton Township School District Tax Case, 362 Pa. 395, 67 A.2d 376 (1949); People's Natural Gas Co. v. Pittsburgh, 317 Pa. 1, 175 A. 691 (1934).

Appellantsargue, however, that even if the tax in question is not deemed to be levied upon the privilege of employing tangible property, it is invalid under Section 3 of the Act because in other ways it duplicates already existing state taxes, ⁴ viz., the corporate net income tax, Act of May 16, 1935, P.L. 208, as amended, 72 P.S. § 3420a et seq. (Supp.1971), the capital stock tax, Act of June 1, 1889, P.L. 420, as amended, 72 P.S. § 1871 et seq. (Supp.1971), and the corporate franchise tax, Act of May 16, 1935, P.L. 184, as amended, 72 P.S. § 1871 et seq. (Supp.1971).

In a suit contesting a very similar taxing ordinance enacted under the authority of the Sterling Act, ⁵ the exact duplication-of-tax issues involved herein were raised and considered. National Biscuit Co. v. Philadelphia, 374 Pa. 604, 98 A.2d 182 (1953). In that case we held that an excise tax on the privilege of transacting business was not duplicative of the corporate net income tax, the capital stock tax, or the foreign corporation franchise tax. Id. at 612--613, 98 A.2d 182. We consider this holding to be conclusive of the duplication issues presently raised except as to the corporate franchise tax.

In National Biscuit, supra, we based our decision on the proposition that the Commonwealth taxes there under consideration, Including the corporate franchise tax, were property taxes, whereas the Philadelphia ordinance was an excise or privilege tax, and therefore no double taxation occurred. Subsequent to the National Biscuit decision, Supra, however, this Court held, in Commonwealth v. National Biscuit Co., 390 Pa. 642, 136 A.2d 821 (1958), that the foreign corporation franchise tax is an excise tax. In distinguishing the cases which had indicated to the contrary where, as here, local taxes were under attack as being duplicative of state taxes, the Court said:

'In determining whether a tax duplicates another tax and results in double taxation prohibited to local taxing authorities, the operation or incidence of the two taxes is controlling as against mere differences in terminology from time to time employed in describing taxes in various cases. The incidence of a tax embraces the subject matter thereof and, more important, the measure of the tax, i.e., the base or yardstick by which the tax is applied. Id. at 652, 136 A.2d at 826.

Applying this test we find the contested ordinance is not duplicative of the corporate franchise tax (nor, for that matter, any others of the pertinent state taxes) because it does not tax the same subject matter, nor is it measured by the same tax base. As the Court expressly held in the closely similar case of Federal Drug Co. v. Pittsburgh, 358 Pa. 454, 57 A.2d 849 (1948):

'The Act of 1935, supra, is a tax for the privilege of a foreign corporation coming into the state of Pennsylvania for the purpose of conducting its business In corporate form. The city ordinance, under attack, is a tax for the privilege of doing business within the city with respect to Any individual, partnership or corporation. It is not a tax limited to foreign corporate associations. In the second place, while in each case the Object of the tax is to license for the purpose of doing business, the tax actually Imposed by the Foreign Corporate Franchise Tax is measured by the value of The property of the foreign corporation within the state. In the Pittsburgh ordinances the tax is on the Gross volume of business conducted by the taxpayer. The respective impacts of the two taxes are on a totally different basis.'

See also Blauner's Inc. v. Philadelphia, 330 Pa. 342, 198 A. 889 (1938).

(3) Appellants earnestly urge that because of the exemptionsset forth in the...