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C.I. WHITTEN TRANSFER COMPANY v. COMMONWEALTH PENNSYLVANIA (02/24/78)

decided: February 24, 1978.

C.I. WHITTEN TRANSFER COMPANY, A DELAWARE CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF REVENUE, RESPONDENT



Appeal from the Orders of the Board of Finance and Revenue in case of In Re: C.I. Whitten Transfer Company, Docket No. R-1806 and R-1807.

COUNSEL

Robert D. Kalinoski, with him William A. Gray, and Wick, Vuono & Lavelle, for appellant.

Vincent J. Dopko, Deputy Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt and DiSalle. Opinion by Judge Rogers.

Author: Rogers

[ 34 Pa. Commw. Page 39]

C.I. Whitten Transfer Company (Whitten) has filed a petition for review of a decision of the Board of Finance and Revenue (Board) sustaining the Department of Revenue's refusal to resettle Whitten's corporate net income tax and a second petition for review of the Board's decision sustaining the Department's refusal to resettle Whitten's franchise tax. The petitions were consolidated for hearing and judgment herein.

The facts have been stipulated. Whitten is a Delaware corporation engaged in the hauling of freight. Whitten filed reports for the Pennsylvania corporate net income tax and franchise tax for the period May 1, 1973 to December 31, 1973 together with a statement that it was not subject to either tax because it was not doing business in Pennsylvania. The strength or weakness of Whitten's position rests on the following stipulated facts:

(a) C.I. Whitten Transfer Company (hereinafter Taxpayer) was incorporated on or about January 22, 1973, and is a wholly-owned subsidiary of Qualpeco Services, Inc., which latter corporation is a Delaware corporation incorporated in September 1972.

(b) Prior to 1973, Taxpayer's predecessor company, a West Virginia corporation by the same name, was engaged in the transportation of commodities in interstate commerce and was

[ 34 Pa. Commw. Page 40]

    properly certificated by the Interstate Commerce Commission.

(c) On or about May 29, 1973, Taxpayer qualified to do business in Pennsylvania as a result of having secured intrastate operating rights from the Pennsylvania Public Utility Commission.

(d) During the tax period in question, May 1 to December 31, 1973, Taxpayer handled interstate freight from points in Pennsylvania to points outside Pennsylvania, interstate freight from points outside Pennsylvania to points within Pennsylvania, interstate freight from points outside of Pennsylvania to other points outside of Pennsylvania while traversing Pennsylvania and also made intrastate pickups and delivery between points in Pennsylvania. Since all of Taxpayer's equipment and vehicles are located outside Pennsylvania, such intrastate activity necessarily involved the interstate movement of Taxpayer's vehicles.

(e) Taxpayer owns no real property which is located in or has a situs in the Commonwealth of Pennsylvania. The only tangible personal property that is ever present in Pennsylvania is that which is there in connection with the conduct of Taxpayer's interstate transportation business or ...


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