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COMMONWEALTH PENNSYLVANIA v. CHERRY RIDGE FLYING SERVICE (10/20/86)

decided: October 20, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
CHERRY RIDGE FLYING SERVICE, INC., APPELLANT



Appeal from the Order of the Board of Finance and Revenue in the case of In Re: Cherry Ridge Flying Service, Inc., Docket No. RST-462.

COUNSEL

Joseph J. Musto, Griffith, Aponick & Musto, for appellant.

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

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

Author: Craig

[ 101 Pa. Commw. Page 316]

The Cherry Ridge Flying Service, Inc. (Cherry Ridge) appeals from an order of the Board of Finance and Revenue sustaining a sales and use tax assessment. We affirm in part and reverse in part.

Cherry Ridge is a Pennsylvania corporation which sells and leases new and used aircraft, operates airport facilities, and offers flight instruction and charter flight services. The Department of Revenue audited Cherry Ridge for the period of June 30, 1970 to March 31, 1973

[ 101 Pa. Commw. Page 317]

    and assessed sales and use taxes. The sales tax assessment is based on Cherry Ridge's purchase and resale of three used airplanes. The use tax assessment is based on Cherry Ridge's use of three other airplanes and one helicopter which it purchased for resale but had put to taxable use before resale.

Cherry Ridge raises two contentions: (1) that the department erred in its sales tax assessment on the sale of three used aircraft because it had acted as a broker rather than a vendor and is therefore not responsible for collecting the sales tax; and (2) that the use tax assessment on the four other aircraft is invalid because of an absence of statutory authority to assess aircraft transactions as the department has done.

Sales Tax

Section 202(a) of the Tax Reform Code of 1971, 72 P.S. ยง 7202(a), imposes a 6% sales tax to be "collected by the vendor from the ...


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