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TAX REVIEW BOARD v. ESSO STANDARD DIVISION (03/14/67)

decided: March 14, 1967.

TAX REVIEW BOARD
v.
ESSO STANDARD DIVISION, APPELLANT



Appeal from judgment of Court of Common Pleas No. 6 of Philadelphia County, March T., 1965, No. 4635, in case of Tax Review Board of Philadelphia v. Esso Standard Division of Humble Oil and Refining Company.

COUNSEL

Park B. Dilks, Jr., with him Morgan, Lewis & Bockius, for appellant.

Levy Anderson, First Deputy City Solicitor, with him Richard B. Pearl, Assistant City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for tax review board, appellee.

Bell, C.j., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 424 Pa. Page 356]

Section 4081 of the United States Internal Revenue Code of 1954 (26 U.S.C. ยง 4081) provides: "(a) There is hereby imposed on gasoline sold by the producer or importer thereof, or by any producer of gasoline, a

[ 424 Pa. Page 357]

    tax of 4 cents a gallon."*fn1 Liability for payment of the tax is imposed upon the producer who makes the sale.*fn2

The appellant, Esso Standard Division of Humble Oil and Refining Company (Humble) is the producer of gasoline and other petroleum products. Humble adds the amount of the above tax to the sales price of the gasoline it charges each purchaser, and the latter receives at the time of the sale an invoice separately listing thereon the charge for the product and the tax.

The question posed by this appeal is, whether that portion of the total sales price (on sales in Philadelphia), which Humble charges the purchaser and later returns to the United States government in payment of the tax, is part of its "gross receipts" for mercantile tax purposes, under the pertinent provisions of the Code of the City of Philadelphia.

The Department of Collection of the City of Philadelphia ruled that such sums should be included in the computation of Humble's "gross receipts" for mercantile tax purposes for the years 1960 through 1962. On appeal the Court of Common Pleas of Philadelphia County sustained the decision of the department and entered judgment accordingly. We granted certiorari under Rule 68 1/2, and now reverse.

The Mercantile License Tax of Philadelphia's Code*fn3 is an excise tax on the privilege of doing business in that city, and is measured by the gross receipts of the business. See, National Biscuit Company v. Philadelphia, 374 Pa. 604, 98 A.2d 182 (1953). ...


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