Anne X. Alpern, City Sol., J. F. McKenna, First Asst. City Sol., Pittsburgh, for City of Pittsburgh and James P. Kirk, Treasurer.
Mortimer B. Lesher, Sol., Oscar G. Peterson, Asst. Sol., Niles Anderson, Asst. Sol., all of Pittsburgh, for School District of Pittsburgh, and James P. Kirk, Treasurer.
Carl E. Glock, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 293]
Industrial Food Service, Inc., plaintiff-appellee, a Pennsylvania corporation, is engaged in operating restaurants and cafeterias at several locations within the City and School District of Pittsburgh. Ordinance No. 488 of the City, hereinafter referred to as the Ordinance, enacted pursuant to the Act of June 25, 1947, P.L. 1145, § 1 et seq., as amended, 53 P.S. § 2015.1 et seq., and Act No. 320, hereinafter referred to as the Act, Act of June 20, 1947, P.L. 745, § 2, as amended, 24 P.S. § 582.2, provide for the issuance of mercantile licenses and the levy and collection of an annual mercantile license tax by the City and School District respectively. The provisions of the Ordinance are, in all material respects, identical with the provisions of the Act, except that the rate of the City tax is two mills and that of the School District one mill.
Section 5 of the Act provides in part:
'(a) Every person, subject to the payment of the tax hereby imposed who has commenced his business at least one (1) full year prior to the beginning of any license year shall compute his annual gross volume of business upon the actual gross amount of business transacted by him during the preceding calendar year.
'(b) Every person, subject to the payment of the tax hereby imposed, who has commenced his business less than one (1) full year prior to the license year one thousand nine hundred forty-eight, for the license year one thousand nine hundred forty-eight, or who has commenced his business subsequent to the beginning of any license year for such license year and the succeeding license year, shall compute his annual gross volume of business upon the actual gross amount of business transacted by him during the first month of
[ 171 Pa. Super. Page 294]
his engaging in such business, multiplied by the number of months of the current license year remaining, or multiplied by twelve (12) for the first full license year he engages in business, as the case may be.'*fn1 (Italics supplied.)
Prior to March 15, 1948, plaintiff made mercantile license tax returns to the City and School District and paid tax for the license year 1948, based upon the total gross receipts from its various restaurant locations which operated during all of 1947, but made no return and paid no tax for 1948 on account of its ...