MR. JUSTICE ZAPPALA
This is an appeal by allowance from an order of the Commonwealth Court, reversing the order of the Delaware County Court of Common Pleas. For the following reasons, I would affirm.
Appellants, Airpark International I, Colonial Airport Parking, Inc., Rama Construction Co., Inc, 621 North Governor Printz, Inc., and Smart Park, Inc., operate commercial parking lots in Tinicum Township, which lies within Interboro School District. On May 18, 1994, the School District adopted a "Resolution to Adopt Parking Lot Tax" pursuant to Section 2 of the Local Tax Enabling Act (LTEA), Act of December 31, 1965, P.L. 1257, as amended, 53 P. S. § 6902. Paragraph 3 of the Resolution provides:
Section 2 of the LTEA provides in pertinent part:
The duly constituted authorities of the following political subdivisions, . . . school districts of the second class, . . . third class, and . . . fourth class, . . . may, in their discretion, by ordinance or resolution, for general revenue purposes, levy, assess and collect or provide for the levying, assessment and collection of such taxes as they shall determine on persons, transactions, occupations, privileges, subjects and personal property.
53 P. S. § 6902.
[A] tax of six (6%) percent shall be levied and imposed upon the fees paid for all transactions in and for the parking of automobiles or motor vehicles on commercial parking lots within the boundaries of the Interboro School District.
Appellants challenged the District's parking lot tax in the Court of Common Pleas of Delaware County. Based on a stipulation of facts by the parties, the court held that the District's parking lot tax was a business privilege tax on gross receipts enacted after 1988, in violation of Section 533 of the Local Tax Reform Act, Act of December 13, 1988, P.L. 1121, 72 P. S. § 4750.101 — 4750.3112. The Commonwealth Court reversed, finding the District's parking lot tax to be a transaction tax not violative of the Reform Act. Airpark International, et al. v. Interboro School District, 677 A.2d 388 (Pa.Cmwlth. 1996). This appeal followed.
Appellants objected to the parking lot tax on several grounds, claiming violations of: (1) the Reform Act; (2) the Equal Protection and Uniformity Clauses of the United States Constitution; (3) the Commerce Clause of the United States Constitution; and (4) the LTEA itself.
Section 533(a) of the Reform Act provides:
After November 30, 1988, and notwithstanding any other provision of this act except for subsection (b), no political subdivision may levy, assess or collect or provide for the levying, assessment or collection of a mercantile or business privilege tax on gross receipts or part thereof.
72 P. S. § 4750.533(a).
Appellants argue that the Commonwealth Court erred in determining that the District's parking lot tax is a permissible transaction tax authorized by the LTEA which does not violate the Reform Act. I disagree.
As aptly stated by the Commonwealth Court below:
The difference . . . between a business privilege tax and a transaction tax is not just the stated subject of the tax, but how the tax is measured. A business privilege tax is a tax imposed on all of the gross receipts from all of the businesses' activities anywhere, so long as the base of operations within the political subdivision contributes to those activities because the privilege of doing business is "far more than the sum of transactions . . . performed within the territorial limits of the taxing entity." [
Gilberti v. City of Pittsburgh,
511 Pa. 100, 109,
511 A.2d 1321, 1326 (1986)] A transaction tax, however, is imposed on the receipts from the designated transactions that are actually performed within the taxing entity, because its subject is only the transaction and not the privilege of engaging in a business that allows the transaction to be consummated.
677 A.2d at 392. The Commonwealth Court went on to properly conclude that because the subject of the District's parking lot tax is "the fees paid for all transactions in and for the parking of automobiles" and the measure of the District's parking lot tax is six percent of "the fees paid," the District's parking lot tax therefore
only taxes parking transactions within the District, and neither purports to tax nor does it effectively tax the privilege of doing business in the School District, because it does not refer to the privilege as the subject of the tax and the tax is not measured on all gross receipts of the Parking Operators.
Id.
The dissent below opined that "[i]f a tax is imposed on a fee for every transaction, there is no transaction free from the tax. If no transaction is free from tax, then the only possible interpretation of the Resolution is that it is a tax on gross receipts." Id. at 396 (Kelley, J., dissenting). Although superficially appealing, this analysis ultimately fails. The majority cogently discredited this argument, stating:
That the Parking Operators in this case have no receipts other than the gross receipts from the taxed parking transactions does not make the Resolution a business privilege tax on gross receipts. Other parking lots in the School District presently or in the future could have receipts from other transactions, such as from transportation to the airport or car washes upon the owner's return, which would be taxed under a business privilege tax but not under the transaction tax imposed.
Id. at 393.
Moreover, the characterization of the District's parking lot tax as a business privilege tax, based solely on its effect on a particular taxpayer, would yield absurd results if applied consistently in the area of taxation. Under such reasoning, the mere fact that a merchant, who happens to sell only consumer goods that are subject to the state sales tax, ultimately pays a state sales tax equivalent to a 6% tax on gross receipts, would transform the state sales tax into a business privilege tax. Clearly, such a result is untenable.
The Commonwealth Court's analysis is sound. The District's parking lot tax is not a tax for the privilege of doing business in the District.
The Opinion in Support of Reversal finds that the District's parking lot tax is consistent with "the School District's published intention . . . to impose a tax on gross receipts of commercial parking lots." (Opinion in Support of Reversal at 6). However, the Resolution, as adopted by Interboro School District, does not impose a tax on the gross receipts of commercial parking lots, but rather on the "fees paid for alltransactions in and for the parking of automobiles or motor vehicles on commercial parking lots . . ." The published intention, which predates the Resolution itself, is of no moment as the sole issue in this case is whether the Resolution violates the Reform Act, not whether the "published intention" would have violated the Reform Act.
I further note that this conclusion is consistent with this Court's opinion in City and County of Philadelphia v. Samuels, 338 Pa. 321, 12 A.2d 79 (1940).Samuels dealt with a challenge to a Philadelphia parking lot tax. The text of the Philadelphia parking lot tax at issue in Samuels provided:
That on or after the approval of this ordinance
a tax of ten per centum of gross receipts from all transactions in or for the parking of automobiles or motor vehicles on open parking lots in the City of Philadelphia is hereby imposed.
338 Pa. at 323, 12 A.2d at 81 (emphasis added).
The issue presented in
Samuels was whether, by enacting a corporate net income tax, the legislature manifested its intention to repeal the power of municipalities to tax parking lot transactions. Answering that inquiry in the negative, this Court held that Philadelphia's parking lot tax was a transaction tax:
Although the words "gross receipts" appear in the text of the parking lot tax in Samuels and not in the text of the District's parking lot tax, the tax in Samuels does not apply to gross receipts in general. Rather, the tax applies to a limited class of gross receipts: "gross receipts from all transactions in and for the parking of automobiles." Thus, despite the varying texts, the tax in Samuels is virtually identical to the District's parking lot tax — the only difference being the rate at which the parking transactions are taxed.
What the ordinance taxes is the "transaction", the activity specified in the enabling act; it is the transaction that results when one parks his car in an open parking place . . .
Id. at 326,
12 A.2d at 82.
The Opinion in Support of Reversal contends that because this Court has, in another context, characterized a parking lot tax as a business privilege tax, see Mellon Square Garage, Inc. v. Public Parking Authority, 442 Pa. 229, 275 A.2d 654 (1971), an ambiguity in the jurisprudence of this Court exists with regard to classification of this type of tax, mandating strict construction of the Resolution against Appellee, Interboro School District. I cannot agree.
While it must be conceded that at first blush, this Court's decisions in Samuels and Mellon Square appear diametrically opposed, the cases can be read in a sense which harmonizes their respective holdings.
The text of the Pittsburgh parking lot tax at issue in Mellon Square provided:
[A] tax for general revenue purposes . . . upon all transactions of each operator with respect to each commercial parking place,
at the rate of ten per cent (10%) of the gross receipts from all such transactions received upon and after the effective date of this ordinance . . .
442 Pa. at 231-232, 275 A.2d at 656 (emphasis added).
The issue presented in
Mellon Square was whether, for purposes of computing rent due under a sublease between the parties, the Pittsburgh parking tax ordinance constituted a "sales or other similar tax."
In holding that the parking tax did not constitute a "sales or other similar tax," this Court characterized the Pittsburgh parking tax ordinance as follows:
Like Samuels ( see supra, note 5), the tax in Mellon Square is virtually identical to the District's parking lot tax, despite the varying texts — the only difference again being the rate at which the parking transactions are taxed.
The rent due under the sublease was calculated based on the lessee's gross receipts, but a deduction was allowed for "sales or other similar tax" paid.
The parking tax is imposed on ". . . all transactions of each operator . . ." and is computed by taking a fixed percentage of the "gross receipts." We believe the ordinance more closely resembles a tax on the privilege of doing business than one on the sales of each parking space.
Id. at 233,
275 A.2d at 657.
It thus ostensibly appears that this Court, in examining two taxing ordinances virtually identical to the District's parking lot tax in this case, has reached opposite conclusions, finding the parking lot tax in Samuels to be a transaction tax, and the parking lot tax in Mellon Square to be a business privilege tax. However, upon closer inspection it is evident that the holdings inSamuels and Mellon Square can be read together.
In Samuels, the issue presented was whether, by enacting a corporate net income tax, the legislature manifested its intention to repeal the power of localities to tax parking lot transactions. The analysis was akin to that of a "double taxation" case, requiring a comparison of the operation and incidence of the two taxes. After examining Philadelphia's parking lot tax and the state corporate income tax, this Court held that the parking lot tax was a transaction tax with an effect on the corporate income tax "so remote and incidental that the legislature cannot have intended, by passing the corporate net income tax act, to set aside the [parking lot tax] ordinance." 338 Pa. at 326, 12 A.2d at 82.
Claims of double taxation typically arise in the context of a taxpayer claim that a local taxing authority has duplicated an existing tax levied by the state and has thus exceeded its power under the enabling statute permitting it to enter tax fields not occupied by the state. See, e.g., National Biscuit Co. v. Philadelphia, 374 Pa. 604, 98 A.2d 182 (1953).
"In determining whether a tax duplicates another tax and results in double taxation prohibited to local taxing authorities, the operation or incidence of the two taxes is controlling as against mere differences in terminology from time to time in describing taxes in various cases. The incidence of a tax embraces the subject matter thereof and, more important, the measure of the tax, i.e., the base or yardstick by which the tax is applied. If these elements inherent in every tax are kept in mind, the incidence of the two taxes may or may not be duplicative." Commonwealth v. National Biscuit Co., 390 Pa. 642, 652, 136 A.2d 821, 825-826 (1957).
Although it may appear that this Court failed to follow theSamuels holding in Mellon Square by stating that Pittsburgh's parking lot tax "more closely resembles" a business privilege tax, like the Commonwealth Court below I find that statement to be a superfluous characterization and thus obiter dictum. See 677 A.2d at 393 n. 12. The narrow issue presented in Mellon Square was whether Pittsburgh's parking lot tax was a "sales or other similar tax." The unfortunate mischaracterization of the tax as "more closely resembl[ing]" a business privilege tax was unnecessary to the holding that the tax was not a "sales or other similar tax." Accord Airway Arms, Inc., et al. v. Moon Area School District, 498 Pa. 286, 446 A.2d 234 (1982).
The mischaracterization is analogous to the error of the Opinion in Support of Reversal in focusing too much attention on the red herring in this case — the words "gross receipts." I believe that this Court's imprecise statement in Mellon Square that Pittsburgh's parking lot tax was "computed by taking a fixed percentage of the `gross receipts,'" when in fact the tax was computed by taxing a fixed percentage of "the gross receipts from all such [parking lot] transactions," provides a clear example of how "[t]he law dealing with taxation is often illogical and arbitrary and the use of words in different senses results in confusion." Samuels, 338 Pa. at 324, 12 A.2d at 81.
Thus, the holding in Mellon Square, that Pittsburgh's parking lot tax was not a "sales or other similar tax," does not conflict with the holding in Samuels, that Philadelphia's parking lot tax was a transaction tax that was not duplicative of the corporate net income tax. Therefore, no ambiguity exists with regard to this Court's decisions in Samuels and Mellon Square.
Even assuming arguendo that the holdings are ambiguous, I must still disagree with the Opinion in Support of Reversal that we must on this account strictly construe the Resolution against the taxing authority. (Opinion in Support of Reversal at 6). The supposed ambiguity does not exist with regard to the subject matter of the taxation. Rather, the supposed ambiguity exists between the Resolution and the Reform Act. It would thus not be a matter of resolving an ambiguity in the tax itself, requiring strict construction in favor of the taxpayer, but instead resolving an ambiguity as to legislative intent in relation to the Reform Act, requiring guidance from the Rules of Statutory Construction.
Finally, I do not share the Opinion in Support of Reversal's concern that "local taxing authorities could avoid the Local Tax Reform Act's prohibition on business privilege taxes based on gross receipts and levy the equivalent tax under a different label," thereby undermining "the legislature's intent to prohibit political subdivisions from enacting business privilege taxes measured by gross receipts." (Opinion in Support of Reversal at 8). Rather, I find much more objectionable the result which follows from the analysis of the Opinion in Support of Reversal; that is, taxpayers could avoid payment of transactional taxes by setting up separate entities, each involved in different, singular types of transactions, and then claiming that one of those entities has been unlawfully subjected to a business privilege tax on gross receipts in violation of the Reform Act, simply because for that one entity "there is no transaction free from the tax."
The Reform Act prohibits the taxing authority from taxing the privilege of conducting business in the District. It does not prohibit the taxing authority from taxing parking transactions.
Because I conclude that the Interboro School District's parking lot tax is a permissible transaction tax authorized by the LTEA which does not violate the Reform Act, I would affirm the order of the Commonwealth Court.
Mr. Justice Cappy and Madame Justice Newman join this Opinion in Support of Affirmance.
OPINION IN SUPPORT OF REVERSAL