No. 74 January Term, 1977, On Appeal from the Order of the Commonwealth Court, dated August 13, 1976, 1974 Term, Nos. 857, 871, 872, 873, 1086, affirming the Order of the Board of Finance and Review, dated May 30, 1974 Nos. M-607, M-608, M-609, and M-816.
Obermayer, Rebmann, Maxwell & Hippel, William G. O'Neill, Barry J. Hart, Philadelphia, for appellant.
Vincent J. Dopko, Eugene J. Anastasio, Deputy Attys. Gen., Harrisburg, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the consideration or decision of this case. Manderino, J., filed a concurring and dissenting opinion.
The City of Philadelphia owns a collection of real and personal property, known as the Philadelphia Gas Works (PGW). In 1961, pursuant to a City ordinance, the City contracted for the managerial services of United Gas Improvement Company. United Gas Improvement managed use of the City-owned property to furnish gas to residential, commercial and industrial users within the City. The parties captioned their contract an agreement "for the operation and management of the PHILADELPHIA GAS WORKS."*fn1 The parties agreed that the City, through PGW, would pay United Gas Improvement a fixed managerial fee for its services and that PGW's net revenues would inure to the City of Philadelphia.
Pursuant to another ordinance, the City on January 1, 1973 turned over management of PGW to the Philadelphia Facilities Management Corporation. The 1973 contract between the City and Philadelphia Facilities is substantially the same as the 1961 contract between the City and United Gas Improvement.
Section 4 of the Liquid Fuels Tax Act, as amended,*fn2 imposes a State tax upon all liquid fuels used or sold and delivered by distributors within the Commonwealth, "excepting liquid fuels delivered to the Commonwealth, every political subdivision." PGW petitioned the Board of Finance and Revenue for refunds of taxes paid beginning April 1,
, the effective date of amended Section 4,*fn3 on its purchases of fuel for City-owned motor vehicles used in the PGW operation. The Board denied PGW refunds of taxes paid from April 1, 1970 to December 31, 1972, but granted refunds beginning January 1, 1973, the date Philadelphia Facilities Management Corporation assumed operation of PGW.*fn4 The Board also denied PGW's petition for interest on the taxes paid. PGW appealed to the Commonwealth Court. A majority of the Commonwealth Court agreed with the Board that PGW is not a "political subdivision" and therefore not entitled to refunds of taxes paid from April, 1970 to December, 1972.*fn5 The Commonwealth Court unanimously rejected PGW's claim that the Board should have awarded interest on the taxes refunded.
PGW now appeals to this Court.*fn6 We conclude that PGW is entitled to a refund of taxes paid from April, 1970 to December, 1972. We agree, however, that the Board properly denied PGW interest on the taxes refunded. Accordingly, we reverse ...