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FLEET PIZZA v. COMMONWEALTH PENNSYLVANIA (09/15/88)

decided: September 15, 1988.

FLEET PIZZA, INC., T/A DOMINO'S PIZZA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. S&M PIZZA, LTD., T/A DOMINO'S PIZZA, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeals from the Orders of the Board of Finance and Revenue in the cases of In Re: Fleet Pizza, Inc., Docket No. RST-9311, dated May 2, 1986; In Re: Fleet Pizza t/a Domino's Pizza, Docket No. RST-9856, dated August 29, 1986; and In Re: S&M Pizza, Ltd., t/a Domino's Pizza, Docket No. RST-10,157, dated October 31, 1986.

COUNSEL

P. J. DiQuinzio, with him, Francis Mazzola, Dechert, Price & Rhoads, for petitioners.

Kathleen Krise Shaulis, Assistant Counsel, with her, James W. Bruce, Assistant Counsel, and Paul S. Roeder, Chief Counsel, for respondent.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and McGinley. Opinion by Judge MacPhail. Dissenting Opinion by President Judge Crumlish, Jr.

Author: Macphail

[ 119 Pa. Commw. Page 464]

The Commonwealth has filed exceptions to our order and opinion filed March 3, 1988 in the above-captioned matter*fn1 wherein we reversed a decision of the

[ 119 Pa. Commw. Page 465]

Board of Finance and Revenue (Board) which sustained a use tax assessment against Fleet Pizza, Inc., t/a Domino's Pizza (Fleet) and a sales and use tax assessment against S&M Pizza, Ltd., t/a Domino's Pizza (S&M).*fn2 We will overrule the Exceptions and direct that judgment be entered in favor of Fleet and S&M.

As will appear in our prior opinion in this matter, taxpayers conduct a pizza business. Extensive stipulations of fact are entered into by the litigants bearing upon how this business is conducted. We have adopted those stipulations as findings of fact. At issue is the imposition of sales tax on pizzas delivered off the premises to the consumer and the imposition of a use tax on certain equipment used in the preparation of the pizzas.

While the Commonwealth has filed nine enumerated exceptions, both its brief and its oral argument are essentially reargument of what we decided. We, nevertheless, will address the exceptions.

Sales Tax On Delivered Pizzas

It is the Commonwealth's contention that Fleet and S&M are caterers conducting a catering business. Section 204(29) of the Tax Reform Code of 1971 (Act), Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7204(29), excludes from sales tax those sales at retail of food and beverages for human consumption but excepts from the exclusion food and beverages purchased from persons engaged in the business of catering. 62 Pa. Code § 49.1 defines "caterer." In our opinion, we held that ...


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