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ERNEST RENDA CONSTRUCTION CO. v. COMMONWEALTH PENNSYLVANIA (02/04/86)

decided: February 4, 1986.

ERNEST RENDA CONSTRUCTION CO., INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. ERNEST RENDA CONTRACTING CO., INC., A NEW JERSEY CORPORATION, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeals from the Orders of the Board of Finance and Revenue in the cases of In Re: Ernest Renda Construction Company, Inc., Docket No. RST-1607, dated November 20, 1984; In Re: Ernest Renda Contracting Co., Inc., Docket No. RST-3224, dated October 31, 1979; and In Re: Ernest Renda Construction Company, Inc., Docket No. RST-5399, dated August 25, 1982.

COUNSEL

Keith A. Hunter, for petitioner.

Robert P. Coyne, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 94 Pa. Commw. Page 610]

In these three appeals Ernest Renda Construction Company, Inc., also known as Ernest Renda Contracting Company, Inc. (Taxpayer), challenges three orders of the Board of Finance and Revenue (Board) which affirmed use tax assessments made by the Department of Revenue (Department) for three tax audit periods: March 31, 1971 through November 30, 1974 (first audit period); January 1, 1975 through December 31, 1977, (second audit period); and January 1, 1978 through December 31, 1980 (third audit period). The facts and legal issues raised in each of the three appeals are substantially the same. We shall, therefore, address the three appeals simultaneously.

Appeals to this Court from the Board are de novo. No record is certified to us from the Board; the record is made by this Court. Pa. R.A.P. 1571(f). In these appeals, the parties submitted a partial stipulation of facts. Additionally, an evidentiary hearing was held on April 15, 1985. Based upon the stipulation and our review of the evidence, we make the following findings of fact:

[ 94 Pa. Commw. Page 611]

Findings of Fact

1. Taxpayer is Ernest Renda Construction Company, Inc., also known as Ernest Renda Contracting Company, Inc., a corporation duly organized and existing under the laws of the State of New Jersey, with its principal office located at County Line Road, R.D. 3, Somerville, Hunterdon County, New Jersey.

2. Taxpayer is a multi-state construction contractor engaged in business primarily in New Jersey, New York and Pennsylvania.

3. Taxpayer is primarily engaged in the business of constructing sewer and water systems.

4. During the three audit periods in question, Taxpayer maintained a vehicle park and repair shop in Orefield, Lehigh County, Pennsylvania.

5. During the three audit periods in question, Taxpayer performed work in Pennsylvania under contracts with a number of municipalities and municipal authorities.

6. During the first audit period, Taxpayer performed the following types of projects in Pennsylvania pursuant to contracts with the following entities:

Entity Type of Project

     a. Palmerton Municipal

Authority Sanitary Sewer

     b. Shenandoah Municipal

Authority Sanitary Sewer

     c. Leesport Borough Authority Sanitary Sewer

     d. Derry Township Municipal

Authority Sanitary Sewer

     e. City of Lancaster Sewer

Authority Sanitary Sewer

     f. Ashland Municipal Authority Sanitary Sewer

     g. Lehigh County Water System

     h. South Whitehall Township Sanitary Sewer

     i. Perkiomen Township Sanitary Sewer

     j. Strasburg, Lancaster County,

Borough Authority Sanitary Sewer

     k. Lower Allen Township

Authority Sanitary Sewer

[ 94 Pa. Commw. Page 6127]

. During the second audit period, Taxpayer performed the following types of projects in Pennsylvania pursuant to contracts with the following entities:

Entity Type of Project

     a. Tyrone Borough Sewer

Authority Sanitary Sewer

     b. City of Sunbury Storm Sewer

     c. Strasburg, Lancaster County

Borough Authority Sanitary Sewer

     d. Shenandoah Municipal

Sewage Authority Sanitary Sewer

     e. Shamokin-Coal Township

Joint Sewer Authority Sanitary Sewer

     f. Radnor-Haverford-Marple

Sewer Authority Sanitary Sewer

     g. Lower Allen Township

Authority Sanitary Sewer

     h. Hempfield Township

Municipal Authority Unknown

     i. Derry Township Municipal

Authority Sanitary Sewer

     j. Carrol Township Authority Sanitary Sewer

8. Taxpayer submitted copies of exemption certificates, naming Taxpayer as contractor for the above-listed projects performed during the second audit period, signed by a representative of the following municipal ...


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