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BUSY BEAVER BUILDING CENTERS v. SCHOOL DISTRICT PITTSBURGH (06/24/76)

decided: June 24, 1976.

BUSY BEAVER BUILDING CENTERS, INC., APPELLANT
v.
THE SCHOOL DISTRICT OF PITTSBURGH, THE CITY OF PITTSBURGH AND JOSEPH L. COSETTI, TREASURER OF THE SCHOOL DISTRICT OF PITTSBURGH AND THE CITY OF PITTSBURGH, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Busy Beaver Building Centers, Inc. v. The School District of Pittsburgh, The City of Pittsburgh, and Joseph L. Cosetti, Treasurer of the School District of Pittsburgh and the City of Pittsburgh, No. S.A. 147 of 1973.

COUNSEL

Edward J. Van Allem, with him Kirkpatrick, Lockhart, Johnson & Hutchison, for appellant.

Grace S. Harris, Assistant City Solicitor, with her Mead Mulvihill, Jr., Solicitor, City of Pittsburgh, and Ronald F. Talarico, Assistant Solicitor and Justin M. Johnson, Solicitor, Board of Public Education of the School District of Pittsburgh, for appellees.

Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson. Judge Kramer did not participate in the decision in this case.

Author: Wilkinson

[ 25 Pa. Commw. Page 290]

The issue presented in this tax appeal from the Court of Common Pleas of Allegheny County is whether appellant made certain sales as a "wholesale dealer

[ 25 Pa. Commw. Page 291]

    or vendor" or as a "retail dealer or vendor," as those terms are used in the Act of June 20, 1947, P.L. 745, as amended, 24 P.S. § 582.1 et seq., and in Pittsburgh City Ordinance No. 595 of 1970, as amended, enacted pursuant to The Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6901 et seq. The court below adopted the contention of the appellees that appellant made the sales as a retail dealer or vendor and affirmed a decision of the appellee Treasurer assessing appellant additional mercantile taxes.

Appellant is, inter alia, a distributor of assembled and prefinished kitchen and bathroom cabinet units manufactured by other corporations. During the years 1969, 1970, and 1971, appellant sold and distributed such cabinets to building contractors who installed them in homes and apartment units they were constructing for others. For such transactions occurring within the City of Pittsburgh, appellant filed mercantile tax returns with the appellee City for the years 1971 and 1972 and with the appellee School District for the years 1970, 1971, and 1972, paying such taxes at wholesale rates.*fn1 However, in 1972, appellant was audited and notified that it should have filed its tax returns at retail rates, which were twice the wholesale, and assessed accordingly.

Under the Act of June 20, 1947, 24 P.S. § 582.1 et seq., the appellee School District is authorized to levy, assess, and collect mercantile taxes on, inter alia, wholesale dealers and vendors at a rate of one-half mill on each dollar of annual gross business transacted, and on retail dealers and vendors at a rate of one mill. Wholesale and retail dealers and vendors are

[ 25 Pa. Commw. Page 292]

    defined under Sections 1(2) and 1(3) of the Act, 24 P.S. §§ 582.1(2)-(3), as follows:

"(2) 'Wholesale dealer' or 'Wholesale vendor' shall mean any person who sells to dealers in, or vendors of, goods, wares and ...


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