Appeal from the Order of the Board of Finance and Revenue in case of In Re: Eva Marie Weissenberger, t/a Valley Forge Apartments, Docket No. RST-2763.
Thomas J. Tumola, with him George W. Braun, of Clark, Ladner, Fortenbaugh & Young, for petitioner.
Paul S. Roeder, Deputy Attorney General, for respondent.
President Judge Crumlish and Judges Mencer, Rogers, Blatt, Craig, MacPhail and Williams, Jr. Judge MacPhail did not participate. Opinion by Judge Blatt. Judge Williams, Jr. concurs in the result only.
[ 54 Pa. Commw. Page 178]
The petitioner, Eva Marie Weissenberger, is the owner of an apartment complex containing 447 residential units. From April 23, 1975 through December 30, 1975, she paid $7,117.58 in sales tax on purchases of electricity for the complex from the Philadelphia Electric Company. She filed a petition for a refund of this tax in January of 1978 which was denied by the Sales Tax Board. That decision was sustained by the Board of Finance and Revenue and this appeal followed.
Upon leasing one of the petitioner's apartments during the period in question, each tenant was required to enter into a utility agreement with the petitioner under which the petitioner promised to purchase electric service for the tenant concerned. Under these agreements, each tenant was charged an amount for electrical service based solely on the square footage of the apartment rented. The amount to be charged per square foot was apparently determined by subtracting from the petitioner's so-called "test period"
[ 54 Pa. Commw. Page 179]
electrical bill an amount approximately equal to the electricity used for the common areas of the apartment, and then by dividing the remainder (presumably representing the amount used by the tenants) by the total square footage of the residential units. The parties have stipulated that the petitioner's electrical consumption did not change between the time of the "test period" and the period of contested taxation.
Section 202(a) of the Tax Reform Code of 1971 (Code), Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7202(a), imposes a sales tax of six percent upon "each separate sale at retail of tangible personal property." Section 201(m) of the Code, 72 P.S. § 7201(m), defines "tangible personal property," in relevant part, as follows:
Corporeal personal property including . . . electricity for non-residential use . . . but the term shall not include house hold supplies purchased at retail establishments for residential consumption. . . . Nor shall said term include steam, natural and manufactured and bottled gas, fuel oil, electricity or intrastate telephone or telegraph service when purchased directly by the user thereof solely for his own residential use. (Emphasis added.)
The issue, therefore, is whether or not the electricity was purchased by the petitioner for her own residential use, and it is controlled by our decision in Aldine Apartments, Inc. v. Commonwealth of Pennsylvania, 39 Pa. Commonwealth Ct. 204, 395 A.2d 299 (1978). There we held that, where a landlord purchases electricity from a utility and supplies it to his tenants according to a flat monthly rate, the electricity is not for ...