Giles & Ransome, Inc. v. Whitehall Township

DISSENTING OPINION BY

President Judge PELLEGRINI.

The issue in this case is whether under the Township’s Business Privilege Tax Or*396dinance sales of heavy construction equipment made by three salespeople stationed at Giles & Ransome, Inc.’s (Taxpayer) facility located within Whitehall Township (Township) are included in the calculation of the “gross volume of revenue” that is subject to the tax or if the sales or transactions actually have to take place within the Township to be subject to the tax.

The majority reverses the Tax Appeal Board and the trial court because each used the Gilberti v. City of Pittsburgh, 511 Pa. 100, 511 A.2d 1321 (1986), “base of operations” analysis to impose a business privilege tax on extraterritorial sales if attributable to an office in the taxing jurisdiction. It finds that analysis inappropriate because Section 103(c) of the Township’s Ordinance is different than the ordinance in Gilberti1 in that it limits the imposition of the tax to only transactions or sales that occur within the Township. I disagree with the majority’s interpretation and would hold that Section 103’s plain language imposes a tax on all business “activity,” not just transactions that occur within the Township.

Section 103 of the Ordinance levies the tax “on the privilege of doing business.” Subsection (a) imposes the tax on the “gross volume of business.” “Business” is defined as “any activity carried on or exercised for gain or profit in the Township, including, but not limited to, the sale of merchandise or other tangible personalty, the performance of services, and the rental of property.” Section 102 of the Ordinance (emphasis added). Subsection (c) then defines “gross volume of business” as:

(c) Whole or Gross Volume of Business. Whole or gross volume of business upon which the business privilege tax imposed by this Part is computed shall include the gross consideration credited or received for or on account of sales made, services performed, rentals of property, and/or other business transactions within the territorial limits of the Township, subject only to the following *397allowable deductions and exemptions ... (Emphasis added).

Contrary to the majority’s interpretation that the tax is imposed on only “sales made” or “transactions” that occur within the Township, under Section 103, the tax is imposed on the “gross volume of business” which, because of the way the term “business” is defined, is a tax on any “activity” that is attributable to the Township that results in revenue. The rest of the sentence in Subsection (c) that begins with “shall include” means just that revenue is included in the calculation of the tax, not that it is the only item that can be taxed.

Based on that substantial evidence, the Tax Appeal Board made the following relevant findings with respect to Taxpayer’s business activities within the Township:

• three of Taxpayer’s salespersons maintained offices in the Township;
• Taxpayer’s salespersons utilized the Township location to actively pursue the sale of heavy duty equipment, conduct business meetings and to maintain and store sales forms, equipment, brochures and files;
• heavy duty equipment was available for sale at the Township facility, with each piece maintaining a “for sale” sign;
• signs at the Township facility provided the facility’s telephone number for sales, service, parts and rental;
• Taxpayer’s salespersons initiated purchase orders from the Township facility for heavy duty equipment which was stored at the Township facility;
• Taxpayer’s salespersons spent most of their time at the Township location as compared to Taxpayer’s other locations;
• Taxpayer reported sales of equipment occurring in the 18052 zip code.

Tax Appeal Board’s Findings of Fact Nos. 5-11.2

The findings by the Tax Appeal Board here clearly demonstrate a logical connection between Taxpayer’s activities and the Township, and establish more than merely “the possibility that Taxpayer’s salesmen occasionally may have used the Township branch as part of the process of consummating some sales.” Giles & Ransome, Inc. v. Whitehall Township, 61 A.3d 386, 393, 2013 WL 489997 (Pa.Cmwlth.2013).

Accordingly, because I would affirm the trial court, I respectfully dissent.

. As the majority notes, our Supreme Court’s decision in V.L. Rendina, Inc. v. City of Harrisburg, 595 Pa. 407, 938 A.2d 988 (2007), "signaled that the previous distinction between transaction-based taxes on gross receipts and privilege-based taxes on gross receipts may be less significant than previously viewed.” Giles & Ransome, Inc. v. Whitehall Township, 61 A.3d 386, 393 (Pa.Cmwlth.2013). As the Supreme Court stated:

The holding of Gilberti was that extra-territorial transactions could be taxed as a business privilege provided there was a sufficient nexus with an intra-city base of operations, not that they could never be taxed as a business privilege in the municipality in which they occurred unless a similar base of operations existed there. In this respect, we note that, in authorizing local taxes on such things as "transactions,” "privileges,” and "occupations,” the General Assembly used terms that are broad, overlapping, and imprecise, and thus, its intention appears to have been to permit local governments to capture a broad range of commercial activity.
We also observe that allowing localities some leeway in terms of the rubric under which they tax business activities occurring within their borders is consistent with the reality that virtually all businesses engage in transactions of some sort, and hence, laying a tax against the gross receipts attributable to the privilege of doing business inevitably entails taxing the gross receipts generated by some set of transactions. It additionally serves to advance the enactment’s underlying policy of allowing for taxation as a quid pro quo for businesses advantaging themselves of local governmental benefits, including the availability of police, fire, and other services. Presently, in this respect, it is evident that [taxpayer] benefited from the availability of such services during the years it maintained a presence in Harrisburg.

Rendina, 595 Pa. at 418-19, 938 A.2d at 995 (citations omitted).

. The majority’s focus on the fact that Taxpayer's Bensalem office has the final authority to approve or disapprove a proposed purchase order is not determinative as to where the transaction occurred.