Both of these decisions were rendered prior to the enactment of the Philadelphia ordinance.
In Kesbec, Inc. v. McGoldrick, decided since the enactment of the Philadelphia ordinance, the New York Court of Appeals, in a four to three opinion, said: "The sales tax was not imposed on the vendor. It fell upon the purchaser (Merchants Refrigerating Company v. Taylor) * * *." The dissenting opinion in the Kesbec case states that in the Atlas Television case the court rejected the argument that the vendor became a debtor and decided that the vendor "is a taxpayer and not an agent of the city." Judge Lehman, who wrote the opinion in the Atlas Television case, concurred in the dissent in the Kesbec case.
In the recent case, McGoldrick v. Berwind-White Coal Mining Company, 309 U.S. 33, 60 S. Ct. 388, 391, 84 L. Ed. , the Supreme Court of the United States had before it the question whether the New York City Sales Tax infringed the commerce clause of the Federal Constitution. However, both the opinion of the court and the dissenting opinion commented upon the interpretations given by the New York Court of Appeals on the New York City Sales Tax Law. In rendering the court's opinion, Mr. Justice Stone said: "The ultimate burden of the tax, both in form and in substance, is thus laid upon the buyer, for consumption, of tangible personal property, and measured by the sales price. Only in event that the seller fails to pay over to the city the tax collected or to charge and collect it as the statute requires, is the burden cast on him. * * * The duty of collecting the tax and paying it over to the Comptroller is imposed on the seller in addition to the duty imposed upon the buyer to pay the tax to the Comptroller when not so collected. Such, in substance, has been the construction of the statute by the state courts."
In the dissenting opinion, Mr. Chief Justice Hughes said: "In the Matter of Atlas Television Co., * * * the Court of Appeals held that the contention that the seller was required only to collect the tax as the agent of the City could not be sustained and hence it was decided that in case of the seller's insolvency the City was entitled to priority of payment. The Court said: 'The duty of payment to the city is laid upon the vendor, not the purchaser. His liability is not measured by the amount actually collected from the purchaser but by the receipts required to be included in such return. Section 6. He must pay the tax even if failure to collect is due to fault of his own'. This statement was repeated in Matter of Merchants Refrigerating Co. v. Taylor, and while it was there said that the Atlas case did not hold that the sales tax was 'imposed' on the vendor, still the court again ruled that the vendor 'is under a duty to pay the tax to the city regardless of whether or not the vendor collects it from the purchaser.' Id., 275 N.Y. page 124, 9 N.E.2d  page 803. If the vendor must pay the tax whether or not he can recoup the amount from the purchaser, and the tax, as here, is assessed against the vendor, it would seem inadmissible to defend the tax upon the ground that it is a tax upon the purchaser."
Whatever status the decisions of the New York Court of Appeals give the vendor in the New York law, they in no way affect the decision of the Pennsylvania Supreme Court that the tax in the Philadelphia ordinance is assessed on the vendee and not on the vendor. For the reasons cited above, I am bound by the decision of the Pennsylvania court. The city's claim is not for taxes due to the city from the insolvent, but for monies collected by the insolvent as agent for the city. The order of the referee denying priority of payment to the claim of the city should be confirmed. It is so ordered.