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PHILADELPHIA TAX REVIEW BOARD v. WEINER ET UX. (11/16/67)

decided: November 16, 1967.

PHILADELPHIA TAX REVIEW BOARD
v.
WEINER ET UX., APPELLANTS



Appeals from orders of Court of Common Pleas No. 2 of Philadelphia County, March T., 1966, No. 3320, and Court of Common Pleas No. 8 of Philadelphia County, March T., 1966, No. 3319, in cases of Tax Review Board of Philadelphia v. Jacob Weiner; and Same v. Rose Weiner.

COUNSEL

Robert J. Spiegel, with him Gratz & Spiegel, for appellants.

Levy Anderson, First Deputy City Solicitor, with him Frank J. Pfizenmayer, Assistant City Solicitor, Matthew W. Bullock, Jr., Second Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for Tax Review Board, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 211 Pa. Super. Page 231]

This is an appeal by Jacob and Rose Weiner, husband and wife, from the decision of the Court of Common Pleas No. 3 of Philadelphia County denying their companion claims for refund of net profit taxes and mercantile license taxes. Claimants contend that the interest of each of them (Rose Weiner, a 1/2 interest in the property at 134-42 North 13th Street; Jacob Weiner, a 1/2 interest in the property at 511 North Broad Street) is merely an investment producing passive income not taxable under either the Philadelphia Wage and Net Profits Tax or the Philadelphia Mercantile License Tax.

The Philadelphia Wage and Net Profits Tax was first enacted in 1939.*fn1 It provided, inter alia, for an annual tax for general revenue purposes on net profits designated as "the net gain from the operation of a business . . ." Philadelphia Code § 19-1502. The Philadelphia Mercantile License Tax ordinance became effective January 1, 1953.*fn2 It provides in part: "Every person engaging in any of the following businesses in the City shall, in addition to paying a license fee as herein provided, pay an annual mercantile license tax for the license year 1953 and annually thereafter at the rate set forth. . . ." "Business," in pertinent part,

[ 211 Pa. Super. Page 232]

    is designated as the carrying on or exercising for gain or profit within the City any trade, business, profession, vocation, or making sales to persons within the City, or any manufacturing, commercial or financial activity, service or business, including but not limited to manufacturers, brokers, wholesale dealers or wholesale vendors, retail dealers or retail vendors. Philadelphia Code § 19-1001.*fn3

Rose Weiner

In 1959, appellant Rose Weiner was audited by the Department of Collections of Philadelphia. As a result, assessments were imposed for failure to pay net profits tax from 1944 through 1957, and mercantile license tax from 1953 through 1958. In August, 1959 appeals were filed with the Tax Review Board of Philadelphia contesting these assessments. In March, 1960 these appeals were withdrawn and in March, 1961 appellant made payments of all taxes for the above years. In May, 1961 she filed a petition with the board for waiver of interest and penalties as a result of which, on October 9, 1961, the board entered an order abating the penalties in part provided the balance due (not included in the original assessment or payment of March, 1961) was paid in accordance with a new bill to be rendered by the Department of Collections. Payment of the taxes, the remaining interest and penalties and taxes for later years was made on December 12, 1961. In July, 1963, wife-appellant filed a petition for refund of net profits taxes paid from 1944 through 1961, and for refund of mercantile license taxes paid from 1953 through 1962.

[ 211 Pa. Super. Page ...


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