Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Liberty Bell Racing Association v. City of Philadelphia Tax Review Board, No. 5002 June Term, 1979 and Liberty Bell Racing Association v. School District of Philadelphia, No. 3987 October Term, 1978, dated May 11, 1983.
Pamela Foa, with her, Vanessa J. Lawrence, Ellis Eisen, Assistant City Solicitor, Ellis M. Saull, Chief Assistant City Solicitor, and Marilyn Z. Kutler, City Solicitor, for appellants.
William P. Thorn, Wolf, Block, Schorr and Solis-Cohen, for appellee.
President Judge Crumlish, Jr., and Judges Rogers, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Colins. Judge Palladino dissents.
The City of Philadelphia, Tax Review Board and the School District of Philadelphia (appellants) appeal a Philadelphia County Court of Common Pleas decision holding that Liberty Bell Racing Association (appellee) is not subject to the City's Mercantile License Tax*fn1 and the School District's General Business
Tax,*fn2 due to the Commonwealth's preemption of taxation in this area. We affirm.
Appellee, a Pennsylvania corporation, was organized in 1960 to construct and operate a harness racing track in Northeast Philadelphia. In 1963 appellee built a racetrack, known as Liberty Bell Park, and began to conduct harness racing there.
On November 1, 1970, appellee organized Liberty Bell Park, Inc., a separate corporation, and transferred to it all of the real estate, physical facilities, and leases it formerly held.*fn3 In addition, appellee, as lessee, entered into a lease with Liberty Bell Park, Inc., as lessor, to permit it to conduct harness racing at Liberty Bell Park twice a year.
Prior to the transfer to Liberty Bell Park Inc., appellee received rental income from the tenant racing associations. After the transfer, however, Liberty Bell Park, Inc. received this income and appellee's income was derived from admissions, parking fees, the sale of food and beverages, wagering, the sale of programs, commissions from the sale of harness horses, fees from tipsheets, fees from pictorial displays and advertising, and other miscellaneous income such as dividends on stock and interest on debentures it held.
Appellee based its 1971 Mercantile License Tax and 1971 General Business Tax on the actual amount of revenue derived in 1971, rather than the volume of business during the preceding year 1970. Its 1971 revenue was approximately $2.6 million dollars less than that of 1970. Both the ...