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COMMONWEALTH PENNSYLVANIA v. PHILADELPHIA GAS WORKS (06/03/76)

decided: June 3, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
PHILADELPHIA GAS WORKS, APPELLANT



Appeal from the Orders of the Board of Finance and Revenue in case of In Re: Petition of Philadelphia Gas Works. Docket Nos. M-607, M-608, M-609 and M-816.

COUNSEL

Leonard B. Rosenthal, with him Abrahams & Lowenstein, for appellant.

Vincent J. Dopko, Deputy Attorney General, with him Donald J. Murphy, Deputy Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Mencer. Concurring and Dissenting Opinion by Judge Crumlish, Jr.

Author: Mencer

[ 25 Pa. Commw. Page 68]

This case involves five appeals brought by the Philadelphia Gas Works (appellant) from a decision rendered by the Board of Finance and Revenue (Board) on May 30, 1974, granting in part and denying in part appellant's claim for a refund of taxes paid under The Liquid Fuels Tax Act*fn1 (Tax Act). Originally, a single appeal was taken from the Board's decision on four separate refund requests. An appeal from each separate request was subsequently taken as a precautionary measure. Because these appeals involve identical issues, they were consolidated for argument and decision.

Appeals taken pursuant to Section 1104 of The Fiscal Code*fn2 are heard de novo. As is often the case, the parties here have submitted a stipulation of facts which we adopt as our findings for the purpose of this case and some of which we will refer to in the course of this opinion.

Between January 1, 1962 and December 31, 1972, appellant was operated and managed by the United Gas Improvement Company (UGI), a private corporation, in accordance with an agreement with the City of Philadelphia. On December 29, 1972, pursuant to

[ 25 Pa. Commw. Page 69]

    an ordinance of Philadelphia City Council, the City entered into an agreement for the management and operation of appellant with Philadelphia Facilities Management Corporation (PFMC), a nonprofit corporation created especially for that purpose. The new agreement became effective January 1, 1973.

On April 1, 1970, an amendment to the Tax Act*fn3 became effective which, among other things, exempted political subdivisions of the Commonwealth from the payment of the tax. Appellant claimed, before the Board, to be entitled to refunds with interest for all liquid fuels taxes paid after that date. The claim was made under Section 17 of the Tax Act, 72 P.S. § 2611q, which provides in part: "The Board of Finance and Revenue may refund to distributors taxes, penalties, and interest paid by them on liquid fuels delivered to the United States government, or paid as the result of an error of law or of fact or of both law and fact. Claims for such refunds shall be made under the procedure prescribed by The Fiscal Code." Appellants assert that they have paid the tax under a mistake of both law and fact.

[ 25 Pa. Commw. Page 70]

The Board granted refunds, without interest, for all liquid fuels taxes paid by appellant since January 1, 1973, on which date management of appellant by PFMC began. The Board denied refunds for taxes paid between April 1, 1970 and January 1, 1973 on the ground that appellant was not, before January 1, 1973, a political subdivision entitled to an exemption under Section 4 of the Tax Act, 72 P.S. § 2611d, which reads in part: "A permanent State tax of eight cents a gallon, or fractional part thereof, is hereby imposed and assessed upon all liquid fuels used or sold and delivered by distributors within ...


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