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KELLY RUN SANITATION v. COMMONWEALTH PENNSYLVANIA (01/28/85)

decided: January 28, 1985.

KELLY RUN SANITATION, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Board of Finance and Revenue in the case of In Re: Kelly Run Sanitation, Incorporated, Docket No. RST-5099.

COUNSEL

Robert V. Campedel, with him, Edward P. Zemprelli, Zemprelli, Clipper and Campedel, for petitioner.

Bryan E. Barbin, Deputy Attorney General, for respondent.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., MacPhail, Doyle, Barry and Colins. Opinion by Judge Barry.

Author: Barry

[ 87 Pa. Commw. Page 228]

This appeal results from an order of the Board of Finance and Revenue denying a request for a sales tax refund of petitioner Kelly Run Sanitation, Inc.

Petitioner operates a landfill for the disposal of various forms of waste, forty percent of which is residential waste, twenty percent of which is non-hazardous industrial waste and forty percent of which is hazardous industrial waste. The hazardous industrial waste consists of by-products generated in the manufacturing processes of a number of industrial concerns in the vicinity. Between 1979 and 1981, petitioner purchased various pieces of equipment used in the operation of the landfill. Petitioner paid sales taxes of $38,359.02 for the purchases in question. Contending that disposal of hazardous by-products is an integral part of the manufacturing process, petitioner

[ 87 Pa. Commw. Page 229]

    sought a refund for the sales taxes paid. Following a denial of the requested refund by both the Board of Appeals and the Board of Finance and Revenue, the Commonwealth and petitioner entered into a partial stipulation of facts. Following an evidentiary hearing on the contested factual questions, the matter is now ready for our resolution.

The Tax Reform Code of 1971 (Code), Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7202(a) (Supp. 1984-85) 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.

The Code also provides, however, that the "term 'sale at retail' shall not include . . . the transfer of tangible personal property including, but not limited to, machinery and equipment and parts therefor and supplies to be used or consumed by the purchaser directly in any operations of -- (A) the manufacture of personal property." 72 P.S. § 7201(k)(8) (Supp. 1984-85) (emphasis added).

The Commonwealth initially argues that under no circumstances can petitioner be entitled to the exemption because petitioner produces no usable product at the landfill. In support of this contention, the Commonwealth points to the Code's definition of "manufacture".

The performance of manufacturing, fabricating, compounding, processing or other operations, engaged in as a business, which place any personal property in a form, composition

[ 87 Pa. Commw. Page 230]

    or character different from that in which it is acquired whether for sale or use by the manufacturer, and shall include, but not limited to --

(1) Every operation commencing with the first production stage and ending with the completion of personal property having the physical qualities (including packaging, if any, passing to the ultimate consumer) which it has when transferred by the manufacturer to another; . . . .

72 P.S. § 7201(c) (Supp. 1984-85). (Emphasis added.) The Commonwealth claims that the emphasized portion requires the taxpayer to either sell or use the property whose form, composition or character has been changed to qualify for the exemption. We disagree.

The just quoted definition of "manufacturer" goes on to provide in subsection (3) that "[r]efining, blasting, exploring, mining and quarrying for, or otherwise extracting from the earth . . . any natural resources, minerals and mineral aggregates", 72 P.S. § 7201(c)(3) (Supp. 1984-85), is within the definition of "manufacture". In Commonwealth v. R. G. Johnson, 495 Pa. 256, 433 A.2d 465 (1981) (plurality opinion), the taxpayer, while extracting no mined substance from the ground, drove bituminous coal mine slopes and sank bituminous coal mine shafts. The taxpayer sought the manufacturing exemption for equipment used in its operations. The Commonwealth argued that since the taxpayer extracted no saleable or usable product, the taxpayer was not entitled to the exemption. The court, however, stated, "we believe that it is not the identity of the party who performs the work, but the nature of the work done that should control the allowance or denial of the [exemption]." Id. at 260-61, 433 A.2d at 468. Such a result

[ 87 Pa. Commw. Page 231]

    is clearly inconsistent with the Commonwealth's argument in this case, thereby requiring us to reject the argument just as the Supreme Court did in Johnson.

The Pennsylvania Code provides:

Equipment, machinery, and supplies designed and used to control, abate, or prevent air, water or noise pollution generated in the manufacturing or processing operation shall be deemed to be directly used in manufacturing or processing and, therefore, shall not be subject to tax. In order for property to qualify as exempt pollution devices it is not necessary that the pollutants be recycled or used in any manner. (Emphasis added.)

61 Pa. Code § 32.32(a)(2)(ii). It seems, therefore, beyond dispute that equipment used to dispose of hazardous waste is "used to control, abate or prevent air and water pollution".*fn1 The petitioner disposes of the hazardous waste in accordance with the strict regulations of the Environmental Protection Agency and the Department of Environmental Resources. According to the regulation, such equipment, if used predominately to control pollution, is deemed "directly ...


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