Appeal from the Order of the Board of Finance and Revenue in case of The Philadelphia Saving Fund Society v. Commonwealth of Pennsylvania, dated August 7, 1973.
Joseph C. Bright, Jr., with him Michael J. DeLaurentis, Drinker, Biddle & Reath, for appellant.
Vincent J. Dopko, Deputy Attorney General, for appellee.
President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge MacPhail. Dissenting Opinion by Judge Doyle. Judge Williams, Jr. joins in this dissent.
[ 78 Pa. Commw. Page 284]
This appeal*fn1 raises in this Court for a third time the issue of whether interest received by a financial institution subject to the provisions of The Mutual Thrift Institutions Tax Act (MTITA), Act of June 22, 1964, P.L. 16, as amended, 72 P.S. §§ 1986.1-1986.6
[ 78 Pa. Commw. Page 285]
may be considered in determining the tax due pursuant to that Act, where the interest arises from obligations which are generally tax exempt under the provisions of the Act of August 31, 1971 (Act 94), P.L. 395, 72 P.S. §§ 4752-1 and 4752-2.
Petitioner, Philadelphia Saving Fund Society (PSFS), appeals here from an order of the Board of Finance and Revenue (Board) which denied the petition for review filed by PSFS from the refusal of the Departments of Revenue and Auditor General to resettle its MTITA tax for the year 1971. The basis upon which resettlement was sought was that interest from obligations of the Pennsylvania Turnpike Commission, the City of Philadelphia, the School District of Philadelphia, the Food Distribution Center and the Levittown Educational Foundation should be excluded from the computation of its MTITA tax. We affirm the Board.
This Court adopts the stipulation of facts and first amendment to stipulation of facts filed by counsel for the litigants as the pertinent facts for a determination of the issue now before us.
PSFS contends that the provisions of Act 94 are clear that such interest must be excluded. The Commonwealth relies upon our prior decisions in Commonwealth v. Commonwealth Federal Savings and Loan Association of Norristown, 29 Pa. Commonwealth Ct. 222, 370 A.2d 409 (1977) and First Federal Savings and Loan Association of Hazleton v. Commonwealth, 25 Pa. Commonwealth Ct. 359, 360 A.2d 773 (1976) as controlling.
PSFS admits, as it must, that both of our prior cases held that notwithstanding the provisions of Act 94, franchise or excise taxes may be measured by property, including obligations of the United States and the Commonwealth, or the income ...