Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Tax Review Board of City of Philadelphia v. Eglin's 30th Street Garage Corporation, No. 1512 March Term, 1972.
Jerome E. Bogutz, with him David S. Rasner and Bogutz & Mazer, for appellant.
Leonard B. Rosenthal, Assistant City Solicitor, with him James M. Penny, Jr., Assistant City Solicitor, John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.
[ 11 Pa. Commw. Page 366]
This appeal is from an order of the Court of Common Pleas of Philadelphia County affirming a decision of the Tax Review Board of the City of Philadelphia which had affirmed the Revenue Commissioner's denial of a refund of parking lot taxes totaling $67,464.34 paid by Eglin's 30th Street Garage Corporation (Eglin) for the years 1955 through 1969. We affirm.
The tax in question was paid under the Philadelphia Parking Lot Ordinance originally enacted July 21, 1937, which was amended on April 19, 1945 and further amended on April 7, 1955. This ordinance, as amended, imposes a tax at the rate of ten percent on the gross receipts of all transactions in and for the parking of automobiles or other motor vehicles on public parking lots in the City of Philadelphia.
The parking lot tax regulations issued by the Department of Collections defines a "public parking lot," in Article I, Section 101, as " any unimproved piece of ground within the City of Philadelphia used for the parking of more than three automobiles or other motor
[ 11 Pa. Commw. Page 367]
vehicles for a charge, fee or other consideration." (Emphasis supplied.)
In February 1955, the Philadelphia Bulletin leased to Eglin a lot or piece of ground at the southwest corner of 30th Street and Pennsylvania Boulevard in the City of Philadelphia for the parking of automobiles. The parking area of approximately 25,000 square feet is paved and is on the street level with 30th Street and occupies less than one-half of the plaza in front of the Bulletin Building on the west side of 30th Street. Beneath this parking area is a lower level, approximately fifty percent of which is basement area of the Bulletin Building and the remainder of which is either railroad roadbed or track area adjacent to the Penn Central Railroad's 30th Street Station.
Eglin contends that the parking area just described does not constitute a "public parking lot" within the meaning of the ordinance. The regulations draw a distinction, justified by the terms of the ordinance, between taxable receipts from parking on open land and nontaxable receipts from parking which utilizes a building. The distinction is not arbitrary because land occupied by a substantial parking structure is assessed at the value of the land and buildings, whereas the open parking lot is assessed without any structure of substantial value.*fn1 Philadelphia v. Samuels, 338 Pa. 321, 12 A.2d 79 (1940). However, we need not decide whether Eglin's improved structure removes it from the definition of a "public parking lot" since we conclude that Eglin has suffered no loss.
Eglin admits that during the years in question it publicly stated the charge for parking and the tax in question separately. ...