Appeal from decree of County Court of Philadelphia, Sept. T., 1965, No. 4751-A, in case of City of Philadelphia v. Amil D. Mancini.
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 City of Philadelphia, appellant.
Michael F. Smith, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen and Mr. Justice Roberts concur in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
Amil Mancini was a cement contractor in Philadelphia whose business generally entailed working for general construction contractors for which work Mancini would submit bids to the general contractors. Mancini's business required the employment of other persons, both residents and nonresidents of Philadelphia.
The City of Philadelphia (City), by ordinance, imposes a tax on all salaries, wages and other compensation earned by residents of the City or by nonresidents whose work is done or services performed within the
City.*fn1 Under the provisions of this ordinance each employer, "who employs one or more persons on a salary, wage, commission or other compensation basis" must deduct the tax, make a return and pay the tax every three months.*fn2
Mancini for 1957 did file the requisite wage tax forms but for 1958, 1959 and 1960 did not file any returns or pay any taxes under the ordinance. After an examination of Mancini's records, although the City levied assessments for the years in question against Mancini,*fn3 he has never paid any of the taxes allegedly due the City.
The examination of Mancini's records revealed that, during the three years in question, Mancini neither withheld nor deducted any wage taxes from the wages due to his employees.
Mancini's position is that, during this three year period, the general contractors for whom he worked paid him only the net amount of wages due his employees, i.e., that amount which, after deduction of the wage tax, was due his employees, and the amount of the wage tax due on his employees' wages was withheld from him by the general contractors and never paid to or received by him.*fn4
The City's position is that the general contractors paid Mancini an amount necessary to pay for materials, the employees' net wages and sufficient to allow Mancini "a draw of one hundred dollars a week which [he] very seldom cashed" to support his ...