Appeal from the Order of the Commonwealth Court at No. 150 C.D. 1976, Reversing the Order of the Board of Finance and Review dated December 26, 1975,
Nix, C.j., Larsen, Flaherty, McDermott, Hutchinson, Zappala, and Papadakos, JJ.
The above captioned appeals were consolidated for argument due to a common factual basis. At issue herein is the refund of a sales tax paid on the purchases of electricity from July, 1972, through April, 1975. The purchases were made for the Summit House Condominium Complex (hereinafter "Summit House") by, initially, Spackman Associates*fn1
and, subsequently, the Summit House Condominium Council (hereinafter "Council"). The electricity was purchased in bulk from the Philadelphia Electric Company (hereinafter "PECO"), supplied through one electrical substation, and measured for the entire condominium complex (including common areas), through a single meter. The Council thereafter apportioned the cost of electricity to the unit owners on the basis of unit size.*fn2
On February 24, 1975, Summit House filed a Petition for Refund with the Department of Revenue requesting a refund of $15,999.56 for sales tax paid by the Council from July 24, 1972 through April 30, 1975. The claim was subsequently raised to $16,577.96. On July 25, 1975, the Board of Review denied the refund. This decision was later affirmed by the Board of Finance and Revenue on December 26, 1975.
The matter was appealed to the Commonwealth Court which, on August 2, 1984, entered an order in favor of the Summit House and awarded judgment in the amount of $16,566.96, together with interest. The Commonwealth thereafter filed exceptions to the Commonwealth Court's decision. On May 1, 1985, the court sustained the Commonwealth's exception as to the award of interest and modified the original judgment to award a refund without interest.
The Commonwealth thereafter filed an appeal to this Court based on the Commonwealth's Court original decision of August 2, 1984. The Summit House filed a cross appeal directed to the Commonwealth Court's order of May 1, 1985, disallowing interest on the refund.
Two issues are presented in the instant appeal: (1) whether the purchase of electricity herein by the management firm and condominium council is exempt from a sales tax due to its ultimate, residential use; and (2) whether the Commonwealth is required to pay interest on the refund of a sales tax.
The relevant statutory sections read as follows:
§ 7202. Imposition of Tax
(a) There is hereby imposed upon each separate sale at retail of tangible personal property or services, as defined herein, within this Commonwealth a tax of six per cent of the purchase price, which tax shall be collected by the vendor from the ...