Appeal from the Order of the Board of Finance and Revenue in case of Petition of Charles Riebe Construction Company, Docket No. R-ST-48.
Philip S. Davis, with him Richard W. Davis, and Davis, Katz, Buzgon & Davis, for appellant.
Paul S. Roeder, Assistant Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers and Blatt. Judges Kramer and Wilkinson, Jr. did not participate. Opinion by President Judge Bowman.
[ 17 Pa. Commw. Page 509]
Charles Riebe Construction Company (appellant) appeals from a decision of the Board of Finance and Revenue, which sustained a decision of the Sales Tax Board of Review in denying appellant's petition for review of a use tax assessment against appellant for the period of January 1, 1969-September 30, 1972. The instant appeal, having been taken pursuant to section 1104 of The Fiscal
[ 17 Pa. Commw. Page 510]
Code,*fn1 is heard de novo by this Court. However, the facts of this case are not in dispute as evidenced by a stipulation of facts entered into by the parties and filed with this Court. We adopt this stipulation as our findings of fact which, as material to the issue involved, are related in narrative form.
Appellant is a construction contractor who entered into a contract with the Pennsylvania Department of Highways for the construction of a highway in Carbon County. Incident to fulfilling this contract, it became necessary for appellant to obtain crushed rock as subbase material. Accordingly, appellant entered into a contract with Susquehanna Quarries (Susquehanna) in December of 1969 for the purpose of producing such crushed rock. Pursuant to the contract, Susquehanna provided a portable rock crusher at appellant's construction site, to which appellant brought his rock for crushing. At all times pertinent hereto, the rock remained titled in appellant and Susquehanna did not lease or sell any material to appellant. Susquehanna's sole duty under the contract was to crush appellant's rock to comport with Department of Highway's specifications. All work performed under this contract between appellant and Susquehanna occurred between March 30, 1970 and July 20, 1970.
Following an audit of appellant in 1972, it was notified on December 15, 1972, of an assessment of a use tax deficiency in the amount of $8,194.19 plus interest and penalties for the period of January 1, 1969-September 30, 1972.
Included within this assessment is an amount of $4,380.98, which was attributed to the services performed by Susquehanna incident to the aforementioned contract, and it is only this portion of the use assessment
[ 17 Pa. Commw. Page 511]
here in issue. Appellant disputes the propriety of the conclusion of the Bureau of Taxes for Education that this transaction was taxable, and following adverse decisions by the hearing examiner for the Sales Tax Board of Review and the Board ...