Appeals from the Orders of the Board of Finance and Revenue in the cases of Clairol Incorporated v. Commonwealth of Pennsylvania, Nos. C-7919, R-4275, and R-4276.
C. VanLeer Davis, III, with him, Joseph D. Holston, Jr., Dechert, Price & Rhoads, for petitioner.
Vincent J. Dopko, Deputy Attorney General, for respondent.
Judges Williams, Jr. and Barry and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry. Judge Williams, Jr., did not participate in the decision in this case.
[ 88 Pa. Commw. Page 154]
Clairol Incorporated (Clairol) is appealing three orders of the Board of Finance and Revenue. The first of these orders refused to grant Clairol a refund of its franchise tax for the year 1975. The other two orders refused Clairol's request for resettlement of its franchise tax for 1976 and 1977. The relevant facts have been stipulated and we adopt them for the purpose of this opinion.
Clairol is a corporation existing under the laws of Delaware with its corporate headquarters in New York. Its business consists of the manufacture and sale of hair care and cosmetic products along with small electrical appliances. During the time period at issue, Clairol did not maintain any office, manufacturing
[ 88 Pa. Commw. Page 155]
plant, inventory, or bank account within this state. In fact, it did not have a Certificate of Authority to do business in Pennsylvania.
Clairol's only contact with this state was through its sales force which consisted of four district managers and approximately thirty-one sales people. The district managers were responsible for calling on retailers in order to determine their needs, display samples, distribute promotional literature and, occasionally, help them set up displays. They also assisted customers in filling out orders and conducting inventories. They supervised the sales people by accompanying them to the different stores and later correcting their presentations and making suggestions.
The sales people solicited orders by visiting wholesalers, retailers, distributors and beauty salons. They also helped their customers in writing orders, rotating their stock, taking inventories and setting up sales promotions. Five of the sales people assigned to the professional products division occasionally offered demonstrations of Clairol's products at conventions and trade shows sponsored by local distributors. All of these people operated from cars which were supplied by Clairol who leased them from national car leasing companies pursuant to contracts negotiated in New York. The cars did carry Pennsylvania license plates.
Neither the managers nor the sales people had authority to approve orders or credit. All orders were processed in Connecticut and they were filled from inventory which was kept outside of this state and shipped here through common carrier. The sales personnel did not receive any form of payment from their customers. All payments were sent to "drop boxes" outside the state. All complaints were handled by
[ 88 Pa. Commw. Page 156]
the home office, although the sales people were authorized to replace damaged goods received by the customers. The replacement items consisted of the ...