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WAYNESBURG BOROUGH v. VAN SCYOC (12/16/64)

decided: December 16, 1964.

WAYNESBURG BOROUGH
v.
VAN SCYOC, APPELLANT



Appeal from order of Court of Quarter Sessions of Greene County, June T., 1964, No. 79, in case of Borough of Waynesburg v. Ronald L. Van Scyoc, manager, Greene County Farm Bureau Co-Operative Association.

COUNSEL

R. Wallace Maxwell, for appellant.

William P. Thomas, Jr., with him Pollock, Pollock & Thomas, for borough, appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 204 Pa. Super. Page 567]

The sole question in this case is whether the Greene County Farm Bureau Co-operative Association (Farm Bureau), a co-operative agricultural association, incorporated under the Act of April 30, 1929, P. L. 885, as amended, 14 P.S. §§ 81-82 et seq., is exempt from filing a return of all retail and wholesale sales and paying mercantile taxes thereon levied by the Borough of Waynesburg upon all mercantile establishments doing business in said borough under the ordinance enacted February 5, 1962.

The principal place of business of Farm Bureau is in Waynesburg, where it is engaged in purchasing feed, fertilizer, lime and farm equipment, which it sells, primarily, to members of the association and, to a limited extent, to the general public.

The ordinance was enacted pursuant to the Act of June 25, 1947, P. L. 1145, 53 P.S. § 6851, known as the "Tax Anything Act", which provides: "The duly constituted authorities of . . . boroughs . . . may, in their discretion, by ordinance or resolution, for general revenue purposes, levy, assess and collect . . . such taxes as they shall determine to be paid . . . on persons, transactions, occupations, privileges, subjects and personal property within the limits of such political subdivisions, except that such local authorities shall not have authority by virtue of this act (1) to levy, assess and collect . . . any tax . . . on a privilege, transaction, subject, occupation or personal property which is now or does hereafter become subject to a State tax or license fee; . . .".

Farm Bureau failed to file a return for the tax periods of 1962 and 1963 required by the ordinance but did file a return for 1962 and 1963 with the Commonwealth of Pennsylvania, pursuant to the Co-operative Agricultural Association Corporate Net Income Tax Act of 1945, 72 P.S. § 3420-23.

[ 204 Pa. Super. Page 568]

Corporations, other than co-operatives, which are required to file returns and pay taxes measured on net income for the privilege of doing business in Pennsylvania under the Act of May 16, 1935, P. L. 208, § 3, as amended, 72 P.S. § 3420c, have been held as not being exempt from paying a mercantile tax based on gross sales under the act aforesaid (53 P.S. § 6851).*fn1 However, there is a noticeable difference in the two acts. The act levying the tax on general corporations provides, "The tax hereby imposed shall be in addition to all taxes now imposed on any corporation under the provision of existing laws." (Emphasis supplied) The act applicable to Co-operative Agricultural Associations reads, ". . . which tax shall be collected in lieu of any other excise tax including corporate net income tax or property tax. The property shall be free from any county tax excepting tax on real estate."

We are constrained to follow the decisions of our Supreme Court set forth in Footnote 1 to the conclusion that the aforesaid tax on co-operative associations is also a property tax and not an excise tax as it is designated in the act and that a mercantile tax on gross sales is not a duplication of the Commonwealth tax.

However, we are still confronted with the specific exemption in the Co-operative Act, and must interpret it to determine whether it is in conflict with the Act of 1945 ...


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