Appeal from the Order of the Pennsylvania Board of Finance and Revenue, in case of In re: Petition of: Summit House Condominium, Tax License Registration No. N/R, Board Docket No. SR-14695.
W. Robert Landis, with him, Gabriel N. Preston, W. Robert Landis Associates, P.C., for appellant.
Paul S. Roeder, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellee.
President Judge Crumlish, Jr. and Judges Rogers, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Doyle. Judge Williams, Jr. did not participate in this decision. Dissenting Opinion by Judge Palladino. Judge Rogers and Judge MacPhail joined in this dissent.
[ 84 Pa. Commw. Page 293]
This petition for review by Summit House Condominium (Condominium) follows an order of the Pennsylvania Board of Finance and Revenue which sustained a decision of the Sales Tax Board of Review denying the Condominium a refund for sales tax paid on purchases of electricity from the Philadelphia Electric Company (PECO) between July 24, 1972 and April 30, 1975.
The stipulated facts indicate that during the period in question, electricity for the residential units and common areas of the Condominium was purchased in bulk from PECO by the Condominium Council and its management agent,*fn1 and the cost was apportioned among the individual unit owners according to each unit's size. At issue here is whether such a purchase arrangement qualifies for sales tax exemption under the Tax Reform Code of 1971 (Code), Act of March 4, 1971, P.L. 6, as amended, 72 P.S. §§ 7101-10004.
[ 84 Pa. Commw. Page 294]
Section 202(a) of the Code provides:
There is hereby imposed upon each separate sale at retail of tangible personal property or services, as defined herein, within this Commonwealth a tax of six per cent of the purchase price, which tax shall be collected by the vendor from the purchaser, and shall be paid over to the Commonwealth as herein provided.
72 P.S. § 7202(a). The Code defines "tangible personal property" as follows:
(m) "Tangible personal property." Corporeal personal property including, but not limited to, goods, wares, merchandise, steam and natural and manufactured and bottled gas for non-residential use, electricity for non-residential use, intrastate telephone and telegraph service for non-residential use, spiritous or vinous liquor and malt or brewed beverages and soft drinks; but the term shall not include household 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.
72 P.S. § 7201(m). Prior to amendment in August of 1971,*fn2 Section 201(m) read, in pertinent part:
Nor shall said term include steam, natural and manufactured and bottled gas, fuel oil, electricity or intrastate telephone or telegraph service ...