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H.K. PORTER COMPANY v. COMMONWEALTH PENNSYLVANIA (12/04/87)

decided: December 4, 1987.

H.K. PORTER COMPANY, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Board of Finance and Revenue in the case of In Re: H.K. Porter Company, Inc., Docket No. RST-7490.

COUNSEL

John H. Enos, III, with him, Wayne M. Pecht, Keefer, Wood, Allen & Rahal, for petitioner.

Eugene J. Anastasio, Deputy Attorney General, with him, Bart J. DeLuca, Jr., Deputy Attorney General, LeRoy S. Zimmerman, Attorney General, for respondent.

President Judge Crumlish, Jr. and Judges Craig, MacPhail, Barry and Palladino. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 111 Pa. Commw. Page 464]

H.K. Porter Company, Inc. (Porter), petitions this Court for review of a Commonwealth Board of Finance

[ 111 Pa. Commw. Page 465]

    and Revenue order denying its request for a refund of the 1982 Pennsylvania Use Tax*fn1 it paid on the purchase of a corporate aircraft. We affirm.

Porter, a Delaware corporation with principal offices in Pittsburgh, manufactures and retails industrial products throughout the United States and other countries. According to the stipulated facts, Porter purchased and took delivery of an aircraft in Delaware in order to transport its customers, executives and employees on business-related travel. The aircraft was thereafter transferred to the Greater Pittsburgh International Airport, where it was hangared. The plane is piloted largely on interstate flights, some of which have originated, terminated, or made stopovers in Pennsylvania. Routine maintenance is performed on the aircraft while hangared at the Pittsburgh airport.

Porter contends that because the aircraft was bought outside the Commonwealth and is used almost exclusively in interstate travel,*fn2 the imposition of the tax on its purchase violates the Commerce Clause of the United States Constitution. U.S. Const. art. I, § 8.

There is no question that state taxes which unfairly burden interstate commerce and the instruments thereof are invalid. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951). However, the Commonwealth counters that because the tax does not discriminate against interstate commerce in this instance and because the item

[ 111 Pa. Commw. Page 466]

    or activity taxed possesses a substantial nexus to the taxing state, the use tax ...


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