decided: November 14, 1972; April 5, 1973, Refiled.
Appeal from the Order of the Board of Finance and Revenue in case of Petition of Lehigh Valley Cooperative Farmers. Appeal transferred from the Court of Common Pleas of Dauphin County to the Commonwealth Court of Pennsylvania, September 1, 1970.
Robert G. Tallman, with him Butz, Hudders & Tallman, for appellant.
Edward T. Baker, Deputy Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Judge Blatt did not participate. Opinion by Judge Kramer.
This is an appeal from an adjudication, dated April 29, 1970, of the Board of Finance and Revenue (Board) refusing to grant the prayer of the Petition For Refund of Sales Tax, filed by the Lehigh Valley Cooperative Farmers (Lehigh). The appeal was properly filed, originally, with the Court of Common Pleas of Dauphin County, and was subsequently transferred to this Court for final determination.
In lieu of a trial by jury before this Court, the parties entered into a Stipulation of Facts which adequately sets forth a description of the pertinent facts and the procedural aspects of this case. We adopt that Stipulation, and it reads as follows:
"1. Lehigh Valley Cooperative Farmers, hereinafter called Defendant, was formed under the provisions of the Agricultural Cooperative Association Act of April 30, 1929, P.L. 885, 15 P.S. § 12151, as amended, for the purpose of processing and marketing milk produced by its 800 members. It maintains its principal place of business at 1000 North Seventh Street, Allentown, Pennsylvania.
"2. During the years 1964, 1965, 1966, 1967 and 1968, Defendant paid Sales and Use Tax on tangible personal property purchased by it, under the provisions of the Tax Act of 1963 for Education, Act of March 6, 1956, P.L. (1955), 1228, as amended by Act of May 29, 1963, P.L. 49, 72 P.S. § 3403.
"3. During the years 1965 through 1969, Defendant was subject to and paid tax imposed by the Cooperative Agricultural Association Corporate Net Income Tax imposed under the provisions of the Act of May 23, 1945, P.L. 893, 72 P.S. § 3420-21.
"4. During the years 1964 through 1969, Defendant paid $418,583.03 in Sales and Use Tax as per schedules
filed with the Sales Tax Bureau, Department of Revenue, and the Board of Finance and Revenue of the Commonwealth of Pennsylvania.
"5. Defendant, during the period in question, received raw milk from farmers and processed the milk at its plants into various products, including fluid milk which is packaged or bottled for drinking, yogurt, cottage cheese, ice cream and similar dairy products. These products are then sold through Defendant's salesmen directly to consumers at their doors and also at wholesale to independent grocers, chain stores, and other retailers in the marketing area principally comprised of southeastern Pennsylvania. Defendant also sold directly to certain large hospitals and similar institutions for their own use.
"During this period, Defendant also sold butter, eggs, orange juice, and convenience foods which were not processed by it but purchased and resold and Defendant also operated a dairy bar at its processing plant. These additional ...