Appeal from the Order of the Board of Finance and Revenue in case of In Re: Appeal of Aldine Apartments, Inc., t/a Academy Apartments, Docket No. RST-1927, dated June 29, 1977.
Robert R. Guzzardi, with him, of counsel, Frank E. Hahn, Barton A. Hertzbach, and Obermayer, Rebmann, Maxwell & Hippel, for petitioner.
Paul S. Roeder, Deputy Attorney General, for respondent.
Barton A. Hertzbach, with him Frank E. Hahn, Jr., and, of counsel, Obermayer, Rebmann, Maxwell and Hippel, for amicus curiae, Delaware Valley Apartment House Owners' Association.
President Judge Bowman and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle and MacPhail. Judges Crumlish, Jr. and Craig did not participate. Opinion by Judge MacPhail.
[ 39 Pa. Commw. Page 205]
The appellant, Aldine Apartments, Inc. (Aldine), is the owner and operator of an apartment complex
[ 39 Pa. Commw. Page 206]
containing seventy (70) tenant-occupied residential units. From January 6, 1971, through July 7, 1976, Aldine paid $4,685.58 in sales tax on purchases of gas, fuel oil and electricity for use in operating the apartment complex. Pursuant to its leases, Aldine provided its tenants with electricity for lights and appliances and with gas to operate gas ranges. Aldine uses electricity to light common hallways and to power elevators, emergency lighting, a fire alarm system and water pumps. Aldine used fuel oil to provide steam heat to its tenants via a central heating system. Aldine's tenants made no payments to Aldine other than monthly rental payments which were not related to the amount of gas, heat and electricity used by the individual tenants. All electricity, gas and fuel oil used in operating the apartment complex were paid for by Aldine.
On September 16, 1976, Aldine filed a petition for a refund of sales taxes paid by them over the period in question. The petition was denied by the Sales Tax Board and that decision was affirmed by the Board of Finance and Revenue (Board). This appeal followed.
Aldine asks that we reverse the order of the Board contending that (1) the sales to Aldine of electricity and gas for residential use of its tenants do not constitute "sales at retail of tangible personal property" for sales tax purposes and (2) exclusion from the tax of sales of gas, fuel oil and electricity purchased directly by the user thereof solely for his own residential use violates the uniformity clause of the Pennsylvania Constitution and the equal protection clause of the Fourteenth Amendment of the United States Constitution by discriminating against landlords who purchase gas, oil and electricity for the residential use of their tenants.
[ 39 Pa. Commw. Page 207]
Section 202(a) of the Tax Reform Code of 1971 (Code), Act of March 4, 1971, P.L. 6, as amended, 72 ...