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MAY DEPARTMENT STORES COMPANY v. CITY PITTSBURGH AND JOSEPH L. COSETTI (08/11/77)

decided: August 11, 1977.

THE MAY DEPARTMENT STORES COMPANY, A CORPORATION
v.
CITY OF PITTSBURGH AND JOSEPH L. COSETTI, TREASURER. (2 CASES)



Appeals from the Order of the Court of Common Pleas of Allegheny County in case of The May Department Stores Company, a corporation v. City of Pittsburgh and Joseph L. Cosetti, Treasurer, SA No. 1438 of 1975.

COUNSEL

Grace S. Harris, Executive Assistant City Solicitor, with her Mead J. Mulvihill, Jr., City Solicitor, for appellant.

A. Sieber Hollinger, with him Reed, Smith, Shaw & McClay, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate in the decision. Opinion by President Judge Bowman. Judge Kramer did not participate in the decision in this case.

Author: Bowman

[ 31 Pa. Commw. Page 399]

The May Department Stores Company (May), a New York corporation, operates a large department store in Pittsburgh (Kaufmann's) and also operates two parking garages under lease from the Public Parking Authority of Pittsburgh (Authority). As the result of an audit performed in August, 1975, the City of Pittsburgh (City), through its Treasurer, determined deficiencies and made assessments for May's Business Privilege Tax*fn1 returns for the years 1972 through

[ 31 Pa. Commw. Page 4001975]

. The deficiencies for tax years 1972 and 1973 are acknowledged to result from May's exclusion of certain contracting receipts which May now admits were taxable. The deficiencies for tax years 1974 and 1975 are similarly acknowledged to result from May's exclusion of receipts from its parking garage operations, receipts which it had included in its returns for 1972 and 1973.

May appealed the deficiency assessments to the Allegheny County Court of Common Pleas contending that its receipts from parking garage operations were not taxable in any year and that the Treasurer erred in: (1) including these receipts in the assessments for tax years 1974 and 1975; and (2) refusing to exclude these receipts (even though May had voluntarily included them) in his review of the returns for 1972 and 1973. Since May's parking receipts, voluntarily included in 1972 and 1973 but now claimed to be exempt, were in excess of the contracting receipts, excluded but now admitted to be taxable, May is, in effect, requesting a refund of taxes paid for those two years.

The court below ruled that May's parking receipts were exempt from Business Privilege Tax and that May properly excluded these receipts from its 1974 and 1975 returns.*fn2 The court also ruled that May was not entitled to any refund of tax paid for any prior years.

The City has appealed, at No. 1244 C.D. 1976, the lower court's ruling that the parking receipts are exempt from tax; May has filed a cross-appeal, at No. 1281 C.D. 1976, from the lower court's refusal to grant a refund for tax years 1972 and 1973, contending that while its alleged overpayment of tax for those years

[ 31 Pa. Commw. Page 401]

    may not be refundable, such overpayment should at least be allowed as a setoff up to the amount of the additional assessments made for those years based on the improper exclusion of contracting receipts. Both appeals were consolidated for argument and are disposed of by this opinion.

We begin by noting that Article VIII, Section 2(a) of the Pennsylvania ...


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