Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of City of Philadelphia Tax Review Board v. Harry D. Toben, No. 3255 March Term, 1973.
Stephen C. Zivitz, and White and Williams, for appellant.
Sheldon L. Albert, City Solicitor; Stephen Arinson, Chief Deputy City Solicitor; Beryl E. Hoffman, Deputy City Solicitor; Stewart M. Weintraub, Assistant City Solicitor; and Sally J. Bellet, Assistant City Solicitor, for appellee.
Judges Rogers and Blatt, sitting as a panel of two. Opinion by Judge Rogers.
[ 32 Pa. Commw. Page 525]
Harry D. Toben (Taxpayer) has appealed from an order of the Philadelphia Court of Common Pleas upholding the action of the Philadelphia Tax Review Board denying the prayer of his petition for review of a Department of Collection's ruling.
Taxpayer is a licensed real estate broker with offices in Philadelphia. He has associated with him in his office, a number of licensed real estate salesmen serving apprenticeships required for licensing as brokers. Section 6(b) of the Real Estate Brokers License Act (Act), Act of May 1, 1929, P.L. 1216, as amended, 63 P.S. § 436(b). The salesmen conduct all of their real estate transactions in the name of the Taxpayer. The Taxpayer provides them with a desk and telephone and instructs them in business principles and selling techniques. Taxpayer does not set the salesmen's work schedule or otherwise control their daily business. The Taxpayer pays the salesmen a part of the commission he, the Taxpayer, receives on account of sales arranged by the salesmen. The Taxpayer does not pay social security or unemployment compensation taxes, nor does he withhold federal, state, or local taxes from the salesmen's commissions.
The City of Philadelphia (City) imposes a Mercantile License Tax upon the engaging in business within its geographical limits. Philadelphia, Pa. Code (Philadelphia Code), §§ 19-1001 et seq. In his Mercantile License Tax Returns for the privilege years 1966-71, Taxpayer did not include in his gross receipts for the tax base years 1965-70 those portions of his gross sales commissions which were "split" with the associate brokers or paid as commissions to the real estate salesmen. The Department of Collections disallowed
[ 32 Pa. Commw. Page 526]
the "exclusion," as Taxpayer characterizes it, of the amounts paid to salesmen as commissions. Taxpayer's timely petition for review with the Tax Review Board was denied on February 22, 1973. Taxpayer filed an appeal with the Court of Common Pleas of Philadelphia County on March 21, 1973, but did not file exceptions to the Tax Review Board's decision until June 27, 1973. The City's motion to quash the appeal was denied by the court below, but the appeal was thereafter dismissed on the merits. A timely appeal to this Court followed.
At the outset, we must resolve a jurisdictional question raised by the City. The Philadelphia Code, § 19-1706, provides:
Appeal from Decisions of Tax Review Board.
(1) Decisions of the Tax Review Board pertaining to compromises and waiver of interest or penalty shall be final and conclusive and shall not be the ...