2 Pa. Commw. 510 | Pa. Commw. Ct. | 1971
Opinion by
Appellant, one of a group of 32 taxpayers, sought, in the Court of Common Pleas of Chester County, to have the occupation tax resolution enacted by the Coatesville Area School District declared invalid and unconstitutional. The authority for the School District’s action was The Local Tax Enabling Act, Act of December 31, 1965, P. L. 1257, §1 et seq., 53 P.S. §6901 et seq. (Supp. 1970). Appellant appealed to the lower court from a reenactment on June 25, 1970 of an occupational tax resolution enacted on May 21, 1968. Since the rate of the tax was to be changed from 250 im'1ls to 290 mills, the School District concluded that it was
The appellant raises three questions on this appeal: (1) Was the meeting of the School Board at which the subject occupation tax resolution was adopted duly advertised and held in accordance with the statutory requirements?; (2) Was the subject tax duly levied upon assessments made in accordance with the mandatory requirements of the fourth to eighth class county assessment law? and (3) Is a tax resolution which differentiates between persons solely on the basis of residence constitutional?
The first contention of appellant is answered by, and we believe controlled by, Wilkes-Barre Appeal, 208 Pa. Superior Ct. 424, 222 A. 2d 499 (1966). In Wilkes-
Here we must conclude after an examination of the record that the public had ample information and opportunity to express its opposition to the adoption of the resolution imposing the 1970-1971 occupational tax
Appellant’s second contention (that the subject tax was not duly levied and assessed in accordance with the mandatory requirements of the fourth to eighth class county assessment law) was raised in regard to the occupation tax of 250 mills imposed by the same defendant school district for the school year beginning July 1, 1968 and ending on June 30, 1969. This contention, now again raised here, was ruled upon by the Supreme Court in Campbell v. Coatesville Area School District, 440 Pa. 496, 270 A. 2d 385 (1970). In that case, dealing basically with the same factual situation and legal principles presented here relative to appellant’s second contention, it was held that where the nonconstitutional challenge to the assessment could not have been maintained in a separate action in equity on the assessment, it cannot be advanced in an attack on the tax resolution which was based on the assessments. We find this holding controlling and dispositive of appellant’s second contention in the present case. See also Crosson v. Downingtown Area School District, 440 Pa. 468, 270 A. 2d 377 (1970).
Finally, appellant asserts that a tax resolution which differentiates between persons solely on the basis of residence is not constitutional. To be more specific, appellant contends that the tax which is the subject of our consideration was imposed upon the occupations of all persons residing in the Coatesville Area School District and therefore by implication it excluded the oc
What appellant fails to consider is that here we are confronted with an occupation tax and not an occupation privilege tax or a capitation tax. An occupation tax may only be levied on residents and must be a flat rate levy measured by the assessed value of a particular occupation. However, an occupation privilege tax must be levied on residents and nonresidents alike and may only be levied by the district in which one’s occupation is pursued.
An occupation tax was defined by our Supreme Court as long ago as 1885 when in Banger’s Appeal, 109 Pa. 79 (1885), at page 95 it used this language: “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 clear income by the precise amount of the tax. But it is an income tax in no sense.”
The appellant takes much comfort in the case of Danyluk v. Johnstown, 406 Pa. 427, 178 A. 2d 609 (1962), where the City of Johnstown had levied an “occupational tax” of $10 per year upon nonresident individuals engaged in any occupation whatsoever within the corporate limits of that city. This tax was struck down by our Supreme Court as not being uniform because it discriminated against nonresidents. However, the Court did so because it concluded that the tax in its real nature was a “capitation tax”. The Court said, at page 429 of its decision, as follows: “The tax bears none of the incidents of an occupation tax which is a flat rate levy measured by the assessed value of a man’s occupation. Consequently, in a true occu
In Gaugler v. Allentown, 410 Pa. 315, 189 A. 2d 264 (1963), the difference between an occupation tax and an occupation privilege tax was recognized. The City of Allentown had imposed a tax of $10 per year on. each individual, residents and nonresidents alike, engaged in an occupation within the corporate limits of that city. This tax was upheld as an occupation privilege tax since it taxed the privilege of all to engage in occupations within the municipality’s territorial limits. The Supreme Court reaffirmed the legal power of a municipality to levy a true occupational privilege tax in Saulsbury v. Bethlehem Steel Company, 413 Pa. 316, 196 A. 2d 664 (1964).
The Local Tax Enabling Act of 1965, supra, authorizes the imposition of two distinct taxes — one upon the occupations of the residents of a taxing district by virture of the provisions of Section 2 itself, and one upon the privilege of engaging in an occupation within the borders of such district by virtue of the provisions of Subsection (9) of Section 2. Here we have a true occupation tax and only the residents of the School District are subject to its levy. Therefore, we must reject appellant’s third contention as being without merit.
.. Order affirmed. Appellant to pay costs.