Appeal from the Order of the Board of Finance and Revenue in case of General Asphalt Paving Company, No. RST-5269, dated July 27, 1982.
L. Gerald Rigby, with him, Gordon F. Moore, II, Kennedy & Rigby, for petitioner.
Paul S. Roeder, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for respondent.
President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Barry and Colins. Opinion by Judge MacPhail.
General Asphalt Paving Company of Philadelphia (General) and the respondent Commonwealth of Pennsylvania (Commonwealth) have entered into a "Supplemental Stipulation of Facts" in accordance with our opinion and order in General Asphalt Paving Co. Appeal, 86 Pa. Commonwealth Ct. 106, 483 A.2d 1068 (1984). We adopt as our own the facts set forth in the supplemental stipulation. The Board of Finance and Revenue (Board) had denied a refund claim by General for use taxes paid on the basis that the paving materials in question were not covered by the public utility exclusion to the use tax found at Section 201(o)(4)(B)(iii) of the Tax Reform Code of 1971 (1971 Code), Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7201(o)(4)(B)(iii). In General's appeal to this Court, we held that General and the Commonwealth did not stipulate precisely enough the nature of the work done by General and we found ourselves unable to perform our judicial function. Having received further stipulations of fact, we now proceed to the merits of the case.
Section 201(o)(4)(B) of the 1971 Code provides in pertinent part:
[T]he term 'use' shall not include --
(B) The use or consumption of tangible personal property, including but not limited to machinery and equipment and parts therefor, and supplies or the obtaining of the services described in subclauses (2), (3) and (4) of this clause directly in any of the operations of --
(iii) The producing, delivering or rendering of a public utility service, or in constructing, reconstructing, remodeling, repairing or maintaining the facilities which are directly used in such service, whether or not such facilities constitute real estate: Provided, however, 'real estate' shall not include buildings, roads or similar facilities;
The [exclusion] provided in [subparagraph] . . . (iii) . . . shall not apply . . . to materials or supplies to be used or consumed in any construction, reconstruction, remodeling, repair or maintenance of real estate other than machinery, equipment, parts or foundations therefor that may be affixed to such real estate . . .
The exclusion provided in subparagraph (iii) shall not apply to (A) construction materials used to construct, reconstruct, remodel, repair or maintain facilities not used directly in the production, delivering or rendition of public utility service, or (B) tools and equipment used but not installed in the maintenance of facilities ...