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MCCARTHY CAR WASH v. COMMONWEALTH PENNSYLVANIA (01/31/86)

decided: January 31, 1986.

MCCARTHY CAR WASH, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Pennsylvania Board of Finance and Revenue in case of In Re Petition of: McCarthy Car Wash, Inc., Board Docket No. 209528 SUT.

COUNSEL

Kathleen Carey Daley, Daley & Daley, for petitioner.

Thomas D. Nabors, Jr., Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for respondent.

Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 94 Pa. Commw. Page 551]

McCarthy Car Wash, Inc. (McCarthy) appeals an order of the Board of Finance and Revenue (Board), dated August 23, 1983, which affirmed a decision of

[ 94 Pa. Commw. Page 552]

    the Board of Review sustaining a sales tax deficiency against McCarthy.*fn1 We affirm.

The parties have entered into a written stipulation of the facts which we have accepted for purposes of this appeal. They have stipulated, inter alia, that the tax assessment which is the subject of the instant appeal involves

     a customer-operated car wash where the customer, in consideration for inserting coins, is provided with a warm water and detergent mixture under pressure and the use of a 'wand type' car wash (apparatus) equipment, along with the use of a washing bay, to wash his or her vehicle.*fn2

Stipulation of Fact 4. A McCarthy employee is responsible for handling problems such as machinery malfunctions and customer complaints. The washing and cleaning of the customers' cars, however, is done solely by the customers.

McCarthy contends that its activity does not constitute a taxable sale at retail, because it does not provide a service for purposes of the Tax Reform Code of 1971 (1971 Code).*fn3 It argues that it merely provides its customer with the opportunity to wash its own cars. It describes its operation as the temporary ...


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