Opinion
November 16, 1967.
December 8, 1967.
Taxation — Mercantile tax — City of Pittsburgh — Broker — Vendor or dealer — Solicitation of magazine subscriptions.
Before ERVIN, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ. (WRIGHT, J., absent).
Appeals, Nos. 199 and 200, April T., 1967, from orders of County Court of Allegheny County, Nos. A 1029 and A 1030 of 1965, in case of Periodical Publishers' Service Bureau, Inc. v. City of Pittsburgh et al.; Same v. School District of Pittsburgh et al. Orders affirmed.
Appeal by taxpayer from mercantile tax assessments. Before LENCHER, P.J., without a jury.
Order entered sustaining appeals in part. Taxpayer appealed.
John P. McComb, Jr., with him William J. McCormick, and Moorhead Knox, for appellant. Justin M. Johnson, Assistant School Solicitor, with him Niles Anderson, School Solicitor, Regis C. Nairn, Assistant City Solicitor, and David Stahl, Solicitor, for appellees.
Argued: November 16, 1967.
Orders affirmed.
I respectfully dissent from the action being taken by the majority of this Court in affirming the orders of the lower court.
The issue in these cases is not whether the appellant is doing business in the City of Pittsburgh, but is whether it is a vendor or dealer as distinguished from a broker. General Foods Corporation v. Pittsburgh, 383 Pa. 244, 118 A.2d 572 (1955).
On the stipulation of facts filed in lieu of testimony, it clearly appears to me that the taxpayer was not a vendor or dealer in magazines. It merely solicited subscriptions to magazines which were subject to acceptance by the publishers. No magazines passed through its hands nor was it a party to any contract with the subscribers.
I would reverse on the authority of Tax Review Board v. Elster Prager, 406 Pa. 543, 178 A.2d 611 (1962), and Jones v. Pittsburgh, 176 Pa. Super. 154, 106 A.2d 892 (1954).