Summary
In L. J. W. Realty Corp. v. Philadelphia, 390 Pa. 197, 134 A.2d 878, we demonstrated that not every ingredient of a transaction must take place within the taxing district. It is only necessary that the phase upon which the tax is based occur in the taxing jurisdiction, which in this case is the alleged actual or constructive change of possession.
Summary of this case from Glendale Hts. Own. A. v. Glenolden Sch. DOpinion
April 23, 1957.
September 30, 1957.
Taxation — Municipalities — Philadelphia — Ordinance — Philadelphia Realty Transfer Tax — Stamp tax on deeds for real estate — Deed executed and delivered outside of city — Sterling Act — Acts of April 6, 1830, P. L. 272 and December 27, 1951, P. L. 1742.
1. An ordinance of the City of Philadelphia (enacted under the powers granted under the Sterling Act of August 5, 1932, P. L. 45 which authorized taxation of transactions "within the limits of the city"), which provided that every person who makes, executes, issues, or delivers any document shall be subject to payment of a specified tax based upon the value represented by the document, and which, by an amendment adopted on December 7, 1954, provided that the term "deliver" should include the presentation for recording within the City of Philadelphia of any document whereby title to or any interest in real property located within the city is transferred or conveyed, regardless of where the document was executed, delivered or accepted, it was Held that the ordinance, as amended, imposed a tax upon the transaction of recording the deed within the limits of the city and did not violate the Sterling Act and applied to a deed actually executed and delivered outside the city limits. [199-206]
2. City Stores Company v. Philadelphia, 376 Pa. 482 and Philadelphia Appeal, 383 Pa. 428, distinguished. [200]
3. The Philadelphia Realty Transfer Tax is a tax upon a transaction pertaining to real estate, whereas the fifty cent tax imposed by the Commonwealth under the Act of April 6, 1830, P. L. 272 is a tax upon the document itself which is being recorded; and therefore the ordinance imposing the Philadelphia Realty Transfer Tax does not violate § 1 of the Sterling Act which prohibits the City of Philadelphia from taxing a privilege, transaction, subject or personal property which is now subject to a State tax or license fee. [202]
4. The Realty Transfer Tax Act of December 27, 1951, P. L. 1742, as amended, duplicates the Philadelphia Realty Transfer Tax but in view of the saving clause in it (which provides "Notwithstanding anything contained in any law to the contrary, the validity of any . . . ordinance . . . now or hereafter enacted or adopted by the Commonwealth or any political subdivision thereof, providing for or relating to the imposition, levy or collection of any tax, shall not be affected or impaired by anything contained in this act"), the continued levying of the Philadelphia tax is not prohibited by operation of the Sterling Act. [203-5] Constitutional law — Article III, § 6 — Realty Transfer Tax Act of December 27, 1951, P. L. 1742.
5. The saving clause in The Realty Transfer Tax Act does not violate Article III, § 6 of the Constitution, which provides "No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length". [204]
6. The purpose of Article III, § 6 of the Constitution was to provide full notice and publicity to all proposed legislative enactments. [205]
Statutes — Construction — Tax statutes — Administrative interpretation — Constitutionality.
7. The administrative interpretation of a taxing statute is controlling unless clearly erroneous. [203]
8. No Act or portion thereof should be declared unconstitutional unless it violates the Constitution clearly, palpably, plainly and in such a manner as to leave no doubt or hesitation in the court's mind. [205]
Before JONES, C. J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.
Appeals, Nos. 218, 225, 222, Jan. T., 1957, from orders of Court of Common Pleas No. 7 of Philadelphia County, June T., 1956, No. 6485; Court of Common Pleas No. 4, June T., 1956, No. 7828, transferred to Court of Common Pleas No. 7; Court of Common Pleas No. 2, June T., 1956, No. 7787, transferred to Court of Common Pleas No. 7, in cases of L. J. W. Realty Corp. v. City of Philadelphia; Tax Review Board v. Lit Brothers, Inc.; and Tax Review Board v. American Stores Company. Judgments affirmed.
Appeals to court of common pleas by taxpayers from decisions of Tax Review Board sustaining decisions of Revenue Commissioner refusing claims for refunds.
Judgments entered sustaining decisions of Board. Plaintiffs, respectively, appealed.
Norman S. Berson, with him Samuel D. Goodis, and Folz, Bard, Kamsler, Goodis Greenfield, for appellant.
Dunstan McNichol, with him Gilfillan, Gilpin Brehman, for appellant.
Charles M. Solomon, with him J. Victor O'Brien and Fox, Rothschild, O'Brien Frankel, for appellant.
David Berger, City Solicitor, with him Leonard B. Rosenthal and Jacob J. Siegal, Assistant City Solicitors, for appellee.
Edward Friedman, Deputy Attorney General, and Thomas D. McBride, Attorney General, filed a brief for the Commonwealth as amicus curiae.
The Act of August 5, 1932, P. L. 45, § 1, 53 P. S. § 4613 (Supp.) (Sterling Act) gives to the City of Philadelphia extensive authority to tax transactions, privileges, subjects and personal property within the limits of the City. In 1937 the City Council of Philadelphia, pursuant to this Act, passed an ordinance "imposing a stamp tax upon certain transactions relating to documents and obligations. . . ." (Emphasis throughout supplied). The ordinance provided that "Every person who makes, executes, issues, or delivers any document . . . shall be subject to pay for, and in respect to such document, or for and in respect of the vellum, parchment or paper upon which such document is written or printed, a tax at the rate of five (5) cents for each one hundred (100) dollars, or fraction thereof, of the value represented by such document."
In City Stores Co. v. Philadelphia, 376 Pa. 482, 103 A.2d 664 (1954) we said that this ordinance imposed a tax on a "transaction" pertaining to real estate. Since "the only transaction ' referred to . . . is the making, execution, issuing and delivering of the instrument of title, . . . it was therefore upon those operations that the tax was imposed. . . ." 376 Pa. at 488. But because in that case deeds were executed and delivered outside the city limits, it was held that the "transaction did not fall within the compass of the ordinance and the tax was accordingly avoided." 376 Pa. at 488.
On December 9, 1952, the city replaced this 1937 transactions tax with a new realty transfer tax which provided for a levy of 1% on the value of the property represented by a deed subject to the provisions of the ordinance. The principal change introduced in the ordinance was the inclusion of a provision prohibiting the recording of documents subject to the tax in the office of the recorder of deeds unless required tax stamps had been affixed thereto. In Philadelphia Appeal, 383 Pa. 428, 119 A.2d 205 (1956), we held that a deed executed, acknowledged, delivered and accepted in New York was not taxable under this ordinance. The new section "was merely an enforcement provision and added nothing to the scope of the tax; it did not make the recording of the deed itself a taxable transaction." 383 Pa. at 433.
The Philadelphia City Council again tried to close the loophole which existed in both the 1937 and 1952 ordinances. On December 7, 1954, after the publication of the decision in the City Stores Co. case, Council amended the 1952 ordinance by providing that the term "deliver" should include the presentation for recording within the City of Philadelphia of any document whereby title to or any interest in real property located within the city was transferred or conveyed, regardless of where the document was executed, delivered or accepted, thereby bringing the transaction of recording the deed within the scope of the taxing provision and apparently remedying the situation which the 1952 amendment had failed to cure.
The act also re-defines "document" as: "any deed . . . whereby any lands . . . situate within this city, shall be granted, bargained, sold, or otherwise conveyed to any grantee, purchaser or any other person, which shall be presented for recording within the city. . . ."
After the effective date of this ordinance the L. J. W. Realty Corp., Lit Bros., Inc., and American Stores Co. individually acquired real estate situated in Philadelphia by deeds executed and accepted outside the Commonwealth. The several deeds were presented for recording in the Department of Records, City Hall, Philadelphia, but the Commissioner refused to accept the deeds unless the Philadelphia Realty Transfer Tax Stamps in appropriate amounts were affixed. The appellants thereupon purchased and affixed the required tax stamps under protest and applied to the Revenue Commissioner for refunds upon the theory that the tax was invalid, being a duplication of existing state taxes. The Revenue Commissioner refused their claims as did the Tax Review Board on appeal.
The Tax Review Board refused to pass upon the validity of the ordinance and determined only that the taxes were properly imposed upon the three companies under the terms of the ordinance.
Further appeals were then taken to the Court of Common Pleas No. 7 of Philadelphia County en banc which upheld the validity of the taxing ordinance and sustained the action of the board in denying the request for refunds. From this decision, the three taxpayers have taken the present appeals.
The first contention of the appellants is that the transaction taxed by the city in all three cases — presentation of a deed for recording — is already the subject of a fifty cent tax imposed by the Commonwealth under the Act of April 6, 1830, P. L. 272, 72 P. S. § 3171. Section one of the Sterling Act prohibits the City of Philadelphia from taxing "a privilege, transaction, subject . . . or . . . personal property which is now . . . subject to a State tax or license fee." Consequently, the appellants urge the Commonwealth's tax operated to prohibit the city from imposing a similar tax.
We have already declared that both the 1937 and the 1952 ordinances levied taxes on certain transactions pertaining to real estate. The 1954 amendatory ordinance in no way affected the type of tax imposed. It merely broadened the scope of the ordinance by expending the definition of "delivery" to include the presentation of a deed for recording. See Philadelphia Appeal, supra, 383 Pa. at 433. Hence, the Philadelphia ordinance continues to impose a "transaction" tax. Does the Act of 1830 impose a similar tax?
City Stores Co. v. Philadelphia, 376 Pa. 482, 103 A.2d 664 (1954).
Philadelphia Appeal, 383 Pa. 428, 119 A.2d 205 (1956).
Section 4 of the Act of 1830 provides: "the several recorders of deeds shall demand and receive for every deed, and for every mortgage or other instrument in writing offered to be recorded, fifty cents." The appellants fail to recognize that the incidence of this state tax differs from the tax imposed by the City. The Act of 1830 does not levy a tax upon a transaction (presentation of a deed for recording); it does by its terms levy a tax upon the document itself which is being recorded.
That the tax payment is made for the document rather than the transaction is borne out by the administrative interpretation of the state act as evidenced by the tax receipt records of the Commonwealth. The 1957 budget, and previous budgets, lists the proceeds from this tax as revenues from a "Tax on Legal Documents." We have said the administrative interpretation of a taxing statute is controlling unless clearly erroneous. Federal Dep. Insur. Corp. v. Board of Finance and Revenue, 368 Pa. 463, 471, 84 A.2d 495 (1951). Our view of the matter is also confirmed by the references to this Act in opinions of the Attorneys General of the Commonwealth as imposing a tax upon documents. See, for example, Opinions of the Attorneys General, 10 Dauph. 113 (1907); 57 Pa. D. C. 335 (1946). See also Cone v. Donaldson, 47 Pa. 363 (1864). We conclude, therefore, that the Act of 1830 does not invoke the operation of section one of the Sterling Act to invalidate the Philadelphia Realty Transfer Tax.
The General Fund Budget for the Biennium June 1, 1957 to May 31, 1959, page 186. On page 185 of the same budget the revenue from the State Realty Transfer Tax, similar in all respects to the city tax, is referred to as "Realty Transfer Tax."
This is also the position of the Commonwealth as Amicus Curiae in the present proceeding.
The second theory advanced by the appellants is that the State Realty Transfer Tax Act of December 27, 1951, P. L. 1742, as amended, 72 P. S. § 3283-3292 (Supp.), duplicated the Philadelphia Realty Transfer Tax, and that, therefore, under the Sterling Act the city lost its right to continue its levy.
The State Realty Transfer Tax imposes a one percent tax upon the presentation for recording of a deed to real estate situated in the Commonwealth irrespective of where the deed was executed, delivered or accepted. However, section eleven of the act provides: "Notwithstanding anything contained in any law to the contrary, the validity of any . . . ordinance . . . now or hereafter enacted or adopted by the Commonwealth or any political subdivision thereof, providing for or relating to the imposition, levy or collection of any tax, shall not be affected or impaired by anything contained in this act." This saving clause permits the continued levying of the Philadelphia tax which otherwise clearly would have been prohibited by operation of the Sterling Act. The appellants urge, however, that the saving clause was enacted in violation of Article III, section 6, of the Pennsylvania Constitution and that, therefore, the Sterling Act remains effective to nullify the city tax.
Article III, section 6 of the Constitution provides: "No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length." Appellants argue that section eleven of the state tax which permits municipalities to tax a transaction concurrently with the state in effect amended the Sterling Act, without complying with the provisions of Article III, section 6.
The position of the appellants is untenable. We grant that the State Realty Transfer Tax has an indirect effect upon the Sterling Act; but it also affects the "tax anything" act of 1947. The State Realty Transfer Tax also imposes additional duties and responsibilities upon the recorders of deeds and the sheriffs of the Commonwealth and hence, affects, modifies and amends all the various acts pertaining to those two officials. "The constitution does not make the obviously impracticable requirement that every act shall recite all other acts that its operation may incidentally affect, either by way of repeal, modification, extension or supply." Searight's Estate, Stuart's Appeal, 163 Pa. 210, 217, 29 A. 800 (1894). Accord: Gallagher v. MacLean, 193 Pa. 583, 587, 45 A. 76 (1899).
Act of June 25, 1947, P. L. 1145, as amended, 53 P. S. § 2015.1-53 P. S. § 2015.9 (Supp.).
The purpose of section 6 of the Constitution, along with other provisions pertaining to legislation in Article III of the Constitution, was to provide full notice and publicity to all proposed legislative enactments, and thus to prevent the passage of "sneak" legislation. As long ago as the Greenfield Avenue case, 191 Pa. 290, 296-297, 43 A. 225 (1899) we said that "an act which is complete in itself — the purpose, meaning and full scope of which are apparent on its face — is valid, [and not violative of Article III, section 6], although it may operate to alter, extend or repeal a prior act . . . ." Accord: Leinbach's Estate, 241 Pa. 32, 36, 88 A. 67 (1913).
There is no doubt that the Commonwealth's Realty Transfer Tax Act is a complete enactment imposing a tax upon transfers of real estate situated within the Commonwealth, and its purpose, meaning and scope are clearly apparent on its face. There was, consequently, no necessity to follow the procedure outlined in Article III, section 6, and republish all prior legislation which may have been indirectly amended or affected. No act or portion thereof should be declared unconstitutional unless "it violates the Constitution clearly, palpably plainly; and in such manner as to leave no doubt or hesitation in our minds." Kelley v. Baldwin, 319 Pa. 53, 54, 179 A. 736 (1935); Sablosky v. Messner, 372 Pa. 47, 59, 92 A.2d 411 (1952). The appellants have failed to discharge the heavy burden placed upon them to overcome this strong presumption of constitutionality accorded section 11 of the State Realty Transfer Tax Act.
The appellants further urge that the amendatory effect of the saving clause provision in the State Realty Transfer Tax Act renders the act violative of Article III, section 3, of the Pennsylvania Constitution, for the reason that the act thereby contains more than one subject and its contents are not clearly expressed in its title. "It is unnecessary to elaborate upon the oft-repeated principle that all the Constitution requires is that the title should put persons of a reasonably inquiring state of mind on notice of the general subject matter of the act. The incidental provisions of the statute need not be enumerated or indexed in the title if they are germane to the legislation as a whole. 'Unless a substantive matter, entirely disconnected with the named legislation, is included within the folds of the bill, the act should not be declared as a violation of the Constitution by reason of its title offending Section 3 of Article III.' " Gumpert's Estate, 343 Pa. 405, 407, 23 A.2d 479 (1942).
Judgment affirmed.