170 Pa. Super. 441 | Pa. Super. Ct. | 1952
Opinion by
H. J. Heinz Company, appellee, maintains an Employes Service Building in connection with its extensive plant in Pittsburgh. As a part of the service there provided it operates three dining rooms or cafeterias with a total seating capacity of about 1,800. These dining rooms are maintained primarily for the convenience and benefit of employes of the company. The prices paid by employes for food are lower than the charges in comparable commercial restaurants. From this service the company seeks to recover only the direct costs of the food and the labor related to preparing and serving it. Actual overhead applicable to the cafeterias would result in an operating loss in a substantial amount without regard to free meals served to employes while working overtime, the cost of which alone for the year 1947 amounted to more than $50,000.
The taxes questioned in these appeals are excise taxes for the year 1948 levied on the privilege of conducting a restaurant business, based on the gross sales of food in appellee’s cafeterias. The School District of the City of Pittsburgh levied a Mercantile License Tax on the privilege under the Act of June 20, 1947, P.L. 745, 24 PS §582.1; and the City of Pittsburgh imposed a like levy pursuant to its ordinance No. 488 enacted by it on the authority of the Act of June 25, 1947, P.L. 1145, 53 PS §2015.1. The lower court was right in concluding that the Heinz Company is not liable for either of these excise taxes. The operation of restaurants for its employes is wholly incidental to the business of the company, namely, the manufacture and processing of food products in wide variety. Cf. Wellsboro Hotel Company’s Appeal, 336 Pa. 171, 7 A. 2d 334; Fixl’s Appeal, 336 Pa. 177, 7 A. 2d 336.
A Mercantile License Tax as its name implies is a levy on the privilege of conducting a commercial-enter
A second question is raised by the city only, in its appeal. On March 15, 1948 the Heinz Company filed a return with the city as a dealer in goods which were hot manufactured by it and paid a Mercantile License Tax based on the amount of the taxable gross receipts from sales admitted in the return. On May 26, 1948, the company filed an amended return and tendered payment of an additional tax based on the amended figures, which the City refused to accept. In July, 1948, the city, following an examination of the records of the company, levied an additional tax of $6,454.79, based on- its computation of appellee’s wholesale and retail sales for the tax year. The total taxable gross receipts from the sales as determined by the city included the proceeds of sale of food in the company’s restaurants. The present equity proceeding was brought by appellee within 60 days of the assessment to enjoin the collection of the tax. On July 13, 1950, after some negotiations, it -was' agreed to reserve for future determination,- in the equity-proceeding, -the question of thé company’s liabil
Heinz Company offered to pay the tax admittedly due immediately after the assessment was reduced by eliminating the proceeds of the operation of the restaurant. The ordinance of the City of Pittsburgh under which the Mercantile License Tax was imposed does not contain a provision requiring or even permitting the city to make refunds of taxes erroneously or inadvertently paid. If the appellee in this case had voluntarily paid the whole amount demanded by the city it could not recover back the amount of the penalty and interest included in the payment, at the termination of this case if not liable for these penalties. In order to maintain an action to recover penalties paid on taxes for which there was no liability the overpayment must have been exacted by compulsion. If the payment was a voluntary one, it may not be recovered unless a statute so provides. Wilson et ux. v. Phila. Sch. Dist. et al., 328 Pa. 225, 195 A. 90.
In the present case the Heinz Company was ready and willing to pay the taxes which were actually due and it promptly brought this action in equity to restrain the collection of the excess. The amount of the tax for which appellee was legally liable was not made definite prior to the stipulation on July 13,1950. Under
The lower court correctly decided both questions raised in these appeals.
The order in No. 163 and the decree in No. 164 April Term, 1951, are affirmed, the latter at the costs of the appellant.