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WARREN A. MARWEG v. COMMONWEALTH PENNSYLVANIA (07/29/86)

decided: July 29, 1986.

WARREN A. MARWEG, T/A NORTHWAY ICE COMPANY, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Department of Revenue, Board of Appeals, in the case of Warren A. Marweg, t/a Northway Ice Company, Inc., No. RST-4066, dated January 16, 1981.

COUNSEL

Patrick Clair, with him, Dennis E. Bires and William Andrews, for petitioner.

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

Judges Barry and Palladino, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 99 Pa. Commw. Page 283]

This appeal results from an order of the Board of Finance and Revenue (Board) which sustained the decision of the Department of Revenue, Board of Appeals, imposing a use tax deficiency on the petitioner, Warren A. Marweg, t/a Northway Ice Company, Inc. (petitioner).

The relevant facts have been stipulated and we adopt them for the purpose of this opinion. Petitioner is engaged in the business of making ice in substantial quantities and selling it at wholesale to a variety of customers. The operation produces approximately twenty-five tons of ice per day for sale in blocks, cubes and crushed form.

Pursuant to an audit conducted in 1979, petitioner was issued an assessment by the Department of Revenue for a use tax deficiency on the machinery involved in the making of the ice. Petitioner, in response, filed a Petition for Reassessment with the Department but was unsuccessful in having the assessment overturned.*fn1 After a further appeal taken to the Board was likewise unsuccessful,*fn2

[ 99 Pa. Commw. Page 284]

    the petitioner initiated the present petition for review.

The sole question involved in this appeal is whether the production of ice, as undertaken by the petitioner, constitutes "manufacturing" for purposes of the use tax provisions of the Tax Reform Code of 1971 (Code).*fn3 Petitioners have consistently asserted that their activities do constitute manufacturing. This argument is premised on the portion of the Code excluding from the classification of taxable uses:

(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 services described in subclauses (2), (3) and (4) ...


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