Lower Dauphin School District v. Kutler

Concurring and Dissenting Opinion by

Judge Doyle:

I respectfully dissent and concur only in the result reached by the majority with regard to retired persons.

Section 2 of The Local Tax Enabling Act (Act), Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. §6902 provides, in pertinent part:

*94The duly constituted authorities of the following political subdivisions . . . may, in their discretion, by ordinance or resolution, for general 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____

As the majority points out, the Act nowhere defines “occupation” and we are therefore bound by Section 1903 of the Statutory Construction Act, 1 Pa. C. S. §1502 to construe the word according to its “common and approved usage.” Id. It seems to me beyond dispute that the common and approved usage of the word “occupation” includes “housewife” or “homemaker.”1 The majority urges, however, that since our Supreme Court in Banger’s Appeal, 109 Pa. 79 (1885), held that an occupation tax is “peculiar in its character,” Id. at 95, the word “occupation” as used in the Act is therefore a word which must be interpreted under Section 1903 of the Statutory Construction Act as one having “a peculiar and appropriate meaning.” The majority then concludes that the use of “occupation” in the Act is limited to income-pro*95chicing occupations, and that “homemaking” is not an income-producing activity.

In reaching this definition of the word “occupation,” the majority relies on that portion of Section 2 which provides:

Each local taxing authority may, by ordinance or resolution, exempt any person whose total income from all sources is less than five thousand dollars ($5,000) per annum from the per capita or similar head tax, occupation tax and occupational privilege tax, or earned income tax, or any portion thereof. . . . (Emphasis added.)

53 P.S. §6902. From this permissive, not mandatory exemption provision, the majority reasons that we must construe an income limitation in our definition of the word “occupation” for purposes of taxation under the Act, and conclude that the legislature intended us to read “occupation” as “income-producing occupation.” I would submit that this analysis is in error and that the inclusion of an income factor in the definitions of the classifications of “occupation” within the intendment of the Act violates the uniformity clause of the Pennsylvania Constitution, Art. VIII, §1. What the legislature intended was that persons, transactions, occupations, privileges, subjects and personal property be taxed under the Act without consideration of income, but that the local taxing authority could, at its discretion, consider the income level of those taxed and exempt its low income citizens from taxation, in accordance with the specific exemption to the uniformity clause in the Pennsylvania Constitution, Art. VIII, §2(b)(ii). Following the reasoning of the majority, since the permitted exemption applies not simply to an occupation tax, we must similarly conclude that by “person” the *96legislature intended us to read “income-earning person” and thereby subject only those who had income to a per capita tax. I think it is clear that the legislature had no such intention. The exemption does not indicate a legislative use of the words “occupation” and “person” which is different from their common and approved meanings.

The majority also relies on the description of an occupation tax in Crosson v. Downingtown Area School District, 440 Pa. 468, 270 A.2d 377 (1970). In Crosson, our Supreme Court distinguished an occupation tax from an income tax. The Court stated:

This court has long recognized the distinction between occupation and income taxes: “An ‘occupation’ tax is peculiar in its character. It is not a tax upon property, but upon the pursuit which a man follows in order to acquire property and support his family. It is a tax upon income in the sense only that every other tax is a tax upon income; that is to say, it reduces a man’s income by the precise amount of the tax____” (Citations omitted.)

Id. at 476, 270 A.2d at 381 (quoting Crawford v. Southern Fulton School District, 431 Pa. 324, 333-34, 246 A.2d 332, 336 (1968)). We have followed Crosson and have held economic return to be only one of numerous factors contributing to the value which is taxed in an occupation tax. See Haberman Appeal, 37 Pa. Commonwealth Ct. 97, 388 A.2d 1159 (1978). The majority urges that to acquire property and support a family requires income and therefore an “occupation” must be activity which produces income. I do not quarrel with the obvious fact that it costs money to support a family, but I do not believe economic benefit and support to the family need be manifest only in the form of realized income. I think that *97what is intended to be taxed by an occupation tax is activity which contributes to the acquisition of wealth by the household and to the maintenance of the family’s standard of living. One’s occupation is that activity to which one commits the majority of one’s time and attention and which is undertaken in order to economically benefit the family.

Full-time homemakers, indisputably, are engaged in activity which results in substantial economic benefit to the household. I believe therefore that homemaking constitutes an occupation taxable under the Act. The cooking, cleaning, and childcare services provided by the homemaker would have to be purchased with family income if not performed by the family member. The courts of this state have recognized this economic contribution of the homemaker in the award of damages for wrongful death when the provider of these valuable services is lost. See e.g. Spangler v. Helm’s New York-Pittsburgh Motor Express, 396 Pa. 482, 153 A.2d 490 (1959). And our legislature, in divorce legislation, has specifically recognized the economic contribution of the homemaker to the acquisition of marital property. See Section 401(d)(7) of the Divorce Code, Act of April 2, 1980, P.L. 63, 23 P.S. §401(d)(7). As our society and its institutions pay more than lip service to the economic contribution of the homemaker, I do not tbink we can justifiably distinguish this occupation from others and insulate homemakers from the burden of taxation. A spouse who chooses to contribute to the economic support of the family unit by devoting her or his full time attention to the performance of the homemakiug services is as much engaged in an occupation as the spouse who is employed outside the home, and cannot therefore be exempt from an occupation tax.

*98It is of no consequence that in many households where both husband and wife are otherwise employed the services of the homemaker are not purchased but continue to be performed by one or more family members during non-working hours. Many who are employed in one occupation engage in activity during non-working hours which generates additional economic gain to the household. What is taxed under an occupation tax, however, is not all economically bene-’ ficial activity in which an individual engages, but' rather that primary activity to which an individual commits his or her time in the pursuit of wealth and support of the family. An individual may have many pursuits, but only one occupation subject to taxation.

’ The majority’s holding “that neither retired per-sons nor homemakers have taxable occupations” would also logically exempt those homemakers who do in fact earn a living performing the homemaking services. I refer not simply to maids, cleaning personnel, cooks or the like, but to professionals who provide the homemaking services to the elderly, the infirm, students or others beyond their own family, and who advertise themselves as “homemakers”. A homemaker is a homemaker; and if homemakers have no taxable occupation, as the majority asserts, professional homemakers would also have no taxable occupation. The majority cannot distinguish between homemakers who earn no income from their activity and those who do without impermissably equating the occupation tax with an income tax, see Crosson, and violating the uniformity clause. See Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 196 A.2d 664 (1964).

I concur in the majority opinion insofar as it holds that retired persons are exempt from an occupation tax because “retirement” is not an occupation. Retirement is the antithesis of a previous occupation. *99It is that status reached when one no longer pursues an occupation in order to support the family or the accumulated wealth of the household. In retirement, the family is supported by income which is the fruit of years of work in the occupation from which one is retired, manifested in social security benefits, pension benefits, or a monetary return on investments made during one’s working life; the family’s means of support are generally not derived from the current activity of the retiree. I note also that, while the activity which constitutes the occupation of a doctor, homemaker, laborer, attorney, plumber, schoolteacher, or the like can be readily ascertained and described, the activity of a retired person will vary with the individual. One can determine with relative certainty those activities engaged in by most who share a particular occupation, but can describe only a wide variety of activities in which a retired person might possibly engage. Some may devote all their time to leasure activity, others to hobbies which may prove marginally profitable, and still others to continued work in the same or a different field.

I dissent from the opinion of the majority insofar as it holds that' retired persons have no taxable occupation because they do not engage in income producing activity. I would hold simply that “retirement” is the opposite of occupation. The majority’s holding implies that persons once retired may never be subject to an occupation tax. I can conceive that the activity of some retired persons may be considered the pursuit of a further occupation and thus be subject to taxation. For example, one might retire at an early age from one occupation and receive a substantial annuity as a result but then undertake a new occupation and be classified and made subject to tax on the value of the new occupation.

The opinion of the court of common pleas and the briefs filed in this appeal employ the term “housewife” to denote those individuals who devote their time to performance of the cooking, cleaning and child-care services necessary for the support of home and family. I discern no intent by the District to tax only wives who provide these services, as indeed they constitutionally could not, but use of the term is clearly inappropriate as it excludes the increasing number of men who have of late chosen to undertake these functions for their families. The recently coined parallel term “househusband” is not helpful in this regard and, consequently, I echo the majority and employ the gender-neutral term “homemaker” throughout this opinion.