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S & H Transp., Inc. v. City of York

Commonwealth Court of Pennsylvania

October 15, 2014

S & H Transport, Inc.
v.
City of York, Appellant

Argued September 8, 2014

Appealed from No. 2012-SU-4143-54. Common Pleas Court of the County of York. Thompson, Jr., J.

Jason R. Sabol, Assistant Solicitor, York, for appellant.

Rees Griffiths, York, for appellee.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge.

OPINION

Page 600

DAN PELLEGRINI, President Judge

The City of York (City) appeals from an order of the Court of Common Pleas of York County (trial court) finding that S & H Transport, Inc. (S & H) was exempt from the City's business-privilege and mercantile tax (BPT) under Section 301.1 of the Local Tax Enabling Act (Act), Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6924.301.1.[1] For the following reasons, we reverse the trial court's order and remand the case for further proceedings.

S & H is a Pennsylvania corporation headquartered in the City which renders freight-brokerage services by receiving freight-shipment orders from customers -- generally manufacturers -- and negotiating contracts for delivery with carriers. S & H invoices each customer for the full balance owed, including both the cost of shipment and S & H's brokerage commission, and then remits payment to the carrier. Because S & H collects the entire balance, its records include the gross receipts from freight-shipment transactions before payment is made to the carriers, meaning that the gross receipts do not include deductions for the shipment costs.

After auditing S & H's BPT returns, the City found that S & H claimed an exemption from the tax for tax years 2007-2011, and the City issued a notice of assessment imposing the BPT on those transactions. S & H appealed that notice, and following an administrative hearing, the tax-assessment appeal hearing officer upheld the City's assessment. S & H appealed to the trial court, contending that it was exempt from the City's BPT because its gross receipts were derived from transactions involving the rendering of " public utility services." [2]

Before the trial court, S & H presented the testimony of its controller, David Ruiz (Controller Ruiz), who stated that S & H " is a transportation brokerage company," meaning that it is " the middleman between the customer and the carriers." (Reproduced Record [R.R.] at 40a.) He further explained S & H's business procedure as follows: S & H receives calls from customers that place orders to transport goods and S & H provides a quote. S & H then selects a carrier and negotiates shipment costs based on " whatever the market will bear" seeking to earn a profit. ( Id. at 65a.) The customer pays S & H for the entire service, including the cost of delivery, and S & H remits payment to the

Page 601

carrier. The difference between S & H's quote and the cost of delivery represents S & H's brokerage commission.

Controller Ruiz asserted that to be registered in the transportation industry as a broker, a company must be registered with the Unified Carrier Registration (UCR) and that S & H was registered with both the UCR and the Federal Motor Carrier Safety Administration. He stated that all notifications regarding annual registration and fees for the UCR are communicated to S & H by the Pennsylvania Public Utility Commission (PUC). Controller Ruiz further testified that all freight carriers engaged by S & H are licensed and subject to regulation as public utilities and are regulated by the PUC. He explained that on its 2007-2011 tax returns, S & H claimed an exemption based upon the fact that it is regulated by the PUC. On cross-examination, he conceded that S & H's rates are not fixed by the PUC, but reaffirmed that the PUC does regulate S & H's business.

S & H also presented the testimony of its expert, Joseph T. Kolarik, a certified public accountant, who testified that in his opinion, S & H properly excluded its gross receipts from the BPT return because S & H is exempt under the third clause of Section 301.1(f)(2) pertaining to " any privilege or transaction involving the rendering of any such public utility service." He explained that even though S & H " does not provide transportation services and its rates are not regulated by Public Utility Commission," it still qualifies under this exemption because " it may be involved in a rendering of services to such companies." (R.R. at 105a.) On cross-examination, Mr. Kolarik agreed that S & H's rates and services are not fixed or regulated. Nonetheless, he explained that because S & H sells a " complete service that involves brokerage plus transportation," the service involves the rendering of common carrier services and, therefore, the third clause applies. ( Id. at 132a.)[3]

The trial court found that S & H was exempt under Section 301.1(f)(2) of the Act because S & H was involved in the rendering of a public utility service by brokering freight-transportation services between its customers and common carriers and excluded all of S & H's transactions from the BPT. This appeal followed.[4]

Section 301.1(f)(2) of the Act generally prevents local governments from taxing subjects involved in the rendering of public utility services. The first clause -- " [t]o levy, assess or collect a tax on the gross receipts from utility service of any person or company whose rates and services are fixed and regulated by the Pennsylvania Public Utility Commission" -- prohibits a tax on the utility as measured by gross receipts. The second clause -- " on any public utility services rendered by any such person or company" -- prohibits the local government from imposing a tax on the customer, as measured by the amount billed to the customer. The third clause, the one at issue here, prohibits the local government from enacting a tax on " any privilege or transaction involving the rendering of any such public utility

Page 602

service...." [5] The issue is whether this clause applies only to prohibit levying a business tax on the public utility for the privilege of engaging in public utility services or whether it extends to all parties that engage in the business of buying public utility services.[6]

In this case, S & H was not " involved" [7] in the " rendering" [8] of any " public utility" [9] service. As the undisputed

Page 603

evidence establishes, S & H is a freight-brokerage company which quotes a price to shippers and then steps into shippers' shoes to procure better shipping rates from transport companies. Although S & H communicates to carriers the services its customers require, it stands in the stead of the shipper to get the shipper's goods transported, negotiating a price which will allow S & H to make a profit when compared to the quote it provided. The entity that renders the public utility service is the one which transports the goods, not the one whose business is to negotiate lower prices for that service so it can make money. Simply, S & H facilitates the buying of shipping services but does not, itself, transmit, deliver or furnish transportation of property -- the hallmark rendering of any public utility service as a common carrier.[10]

Accordingly, we vacate the trial court's order and remand the case for further proceedings to determine the amount S & H owes for tax years 2007-2011 pursuant to the BPT. See note 2.

ORDER

AND NOW, this 15th day of October, 2014, the order of the Court of Common Pleas of York County dated January 6, 2014, is reversed, and this case is remanded for further proceedings in accordance with the foregoing opinion.

Jurisdiction is relinquished.

CONCURRING OPINION

BONNIE BRIGANCE LEADBETTER, JUDGE.

I continue to join in the majority opinion of President Judge Pellegrini. I write separately to point out my view that, even if I were to agree with Judge Simpson's thoughtful dissent, taxpayer could not prevail. This is because the rates of the carriers with whom S & H contracts are not fixed by the Public Utility Commission. Therefore, S & H's transactions are not involved in the rendering of " such" public utility service, i.e., that to which the statutory provision is specifically directed in the first clause of Section 301.1(f)(2).

DISSENTING OPINION

ROBERT SIMPSON, Judge

I disagree with the Majority's determination that S& H Transport, Inc. (S& H)

Page 604

was not " involved" in the rendering of any public utility service and thus not entitled to relief from the City of York's (City) business privilege and mercantile tax (BPT) under the third clause in Section 301.1(f)(2) of the Local Tax Enabling Act (Act), Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6924.301.1(f)(2), and Section 343.02(c)(3) of the City Ordinance, Bus. Reg. & Tax § 343.02(c)(3) (incorporating Section 301.1(f)(2) of the Act into the City Ordinance). Therefore, I respectfully dissent.

Section 301.1(f)(2) of the Act provides in pertinent part (with emphasis added):

Such local authorities shall not have the authority by virtue of this act:
* * * *
(2) To levy, assess or collect a tax[1] on the gross receipts from utility service of any person or company whose rates and services are fixed and regulated by the Pennsylvania Public Utility Commission or [2] on any public utility services rendered by any such person or company or [3]on any privilege or transaction involving the rendering of any such public utility service ....

53 P.S. § 6924.301.1(f)(2) (clause numbers added for reference).

Importantly, the provision of the Act which provides that local authorities " shall not have the authority" to levy certain described taxes, does not involve a tax exemption which would subject the critical statutory words to a strict construction test; rather, " the words 'shall not have authority' have been construed to be a limitation on the power to tax so that doubts relating to their construction are resolved in favor of the taxpayers." Golden Triangle Broad., Inc. v. City of Pittsburgh, 31 Pa.Cmwlth. 547, 377 A.2d 839, 842 (Pa. Cmwlth. 1977) ( en banc ), aff'd 483 Pa. 525, 397 A.2d 1147 (Pa. 1979) (citing Directory Publ'g Co. v. Pittsburgh, 205 Pa.Super. 423, 211 A.2d 509, 511 (Pa. Super. 1965)).

Rather than construing the language of the Act in favor of S& H, the Majority does the opposite and interprets the language in favor of the City. Thus, the Majority arrives at the conclusion that S& H was not " involved" in the rendering of any public utility service because S& H is merely a freight brokerage service which quotes a price to shippers and then " stands in the stead of the shipper" to secure better shipping rates from common carrier transport companies. Majority Slip Op. at 6-7. Because S& H " does not, itself, transmit, deliver or furnish transportation of property," the Majority holds that S& H is not involved in the rendering of a public utility service for purposes of the language in Section 301.1(f)(2) of the Act. Majority Slip. Op. at 8.

I believe the Majority's construction of the word " involved" is unnecessarily narrow, thereby expanding the City's expressly limited power to tax. Accordingly, the Majority's interpretation fails to follow principles of statutory construction. Golden Triangle.

Although S& H functions as a " middleman" between shippers and common carriers, S& H nonetheless prepares the contracts that provide certain pre-qualified common carriers with opportunities to haul S& H's customers' goods. In so doing, S& H not only selects the common carrier, but negotiates the cost of the public utility services it provides. To that end, S& H's Controller, David Ruiz (Controller), testified that in a typical S& H-brokered transaction, when a common carrier picks up a load from a S& H customer-shipper, it would receive a bill of lading from the shipper as proof of delivery. Notes of Testimony (N.T), 12/7/13, at 26; Reproduced Record (R.R.) at 59a. The common

Page 605

carrier then gives the bill of lading to S& H. Id. S& H then bills the shipper. Id.

Controller further testified that S& H selects the common carrier used and negotiates the carrier's charges for each and every load. N.T. at 42-43; R.R. at 75a-76a. In essence, S& H sells a product, which includes its brokerage services and the selected common carrier. Id. Moreover, S& H does not receive any revenue that is not related to freight delivery. N.T. at 27; R.R. at 60a.

Given these circumstances, I believe S& H's transactions with its customer-shippers, which include the selection of the common carrier and the negotiation of the charges for each load, " involve" the rendering of a public utility service by the common carriers.[1] I would not construe the statutory language as to require that S& H itself physically transport its customers' freight. Therefore, I would affirm the order of the respected trial court holding S& H not liable for the City's BPT under Section 301.1(f)(2) of the Act.[2]


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