Appeal from the orders of the County, at Nos. 1416 of 1957 and 1461 of 1957, in cases of In re: Appeal of Cities Service Oil Company, a corporation v. School District of the City of Pittsburgh, a municipal corporation and David A. Smith, School Treasurer, and In re: Appeal of Cities Service Oil Corporation, a corporation from City of Pittsburgh, a municipal corporation and David A. Smith, Treasurer.
Bernard Markovitz, Assistant Solicitor, with him Justin M. Johnson, Solicitor, for appellant School District of Pittsburgh.
Grace S. Harris, Assistant Solicitor, with her Ralph Lynch, Jr., Solicitor, for appellant City of Pittsburgh.
J. Robert Maxwell, with him Maxwell & Huss for appellee.
President Judge Bow-Court of Common Pleas, Civil Division, of Allegheny man, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Rogers. Opinion by Judge Kramer (Concurring in part and dissenting in part).
These are consolidated appeals by the City and the School District of Pittsburgh from judgments of the Court of Common Pleas of Allegheny County awarding appellee, Cities Service Oil Company, refunds of deficiency assessments of mercantile license taxes, penalty and interest paid under protest.
Cities Service Oil Company conducted business at two locations within the City of Pittsburgh. One was a retail service station at Coltart and Bates Street; the other a business office at 32 East Carson Street. After the passage of the Act of 1947, June 20, P.L. 745, 24 P.S. 582.1 and City of Pittsburgh Ordinance 509,
approved December 15, 1948, imposing mercantile license taxes, the appellee filed its returns for the years 1949, 1950, 1951 and 1952 and paid the mercantile taxes due on its sales at the Coltart and Bates Street location. In the course of an audit made in 1951, the taxpayer's manager upon inquiry by the supervisor of mercantile taxes explained at some length the scope of the operations conducted at the Carson Street location. In April 1957, appellants audited records of appellee's operations at the Carson Street office and assessed mercantile tax deficiencies for the years 1949 through 1952 totaling with penalties and interest $47,381.65. In June 1957, the appellee paid this sum under protest and promptly filed a petition for a refund of the amount so paid.
The school taxes were levied under the authority of the Act of June 20, 1947, P.L. 745, supra, which provides in part as follows: "Section 8(b). The tax collector is hereby charged with the administration and enforcement of the provisions of this Act and is hereby empowered to prescribe, adopt, promulgate and enforce rules and regulations relating to any matter pertaining to the administration and enforcement of this Act, including provision for the reexamination and correction of returns, and payments alleged or found to be incorrect, or as to which an overpayment is claimed, or found to have occurred. No assessment may be made more than five years after the date on which such taxes should have been paid, except where a fraudulent return or no return has been filed. Any person aggrieved by any decision of the collector shall have the right to appeal to the county court of Allegheny County." (Emphasis supplied.)
The city taxes were levied pursuant to its Ordinance No. 465, approved November 29, 1956, containing an identical limitation in deficiency assessments. Since the ...