                               [J-99-2018][M.O. - Todd, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                    MIDDLE DISTRICT


S & H TRANSPORT, INC.,                         :   No. 8 MAP 2018
                                               :
                      Appellant                :   Appeal from the Order of the
                                               :   Commonwealth Court at No. 242 CD
                                               :   2017 entered 10/5/17 reversing the
                 v.                            :   order of the Court of Common Pleas of
                                               :   York County, Civil Division, at No. 2012-
                                               :   SU-4143-54, dated 2/7/17, entered
CITY OF YORK,                                  :   2/9/17
                                               :
                      Appellee                 :   ARGUED: December 5, 2018




                                  CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                            DECIDED: July 17, 2019


       I respectfully differ with the majority’s conclusion that the Regulation’s exclusion

for freight delivery or transportation charges paid by the seller for the purchaser applies.

See Majority Opinion, slip op. at 18-19. From my point of view, this exclusion merely

effectuates the parallel requirement for exclusion of the LTEA, and the majority’s

rationale pertaining to the inapplicability of this legislative requirement for exclusion

applies equally to the exclusion in the Regulation. See Majority Opinion, slip op. at 16-

17; accord S&H Transp., Inc. v. City of York, 174 A.3d 679, 683 (Pa. Cmwlth. 2017)

(“S&H is neither the seller nor the purchaser in the transaction at issue but merely a

broker of services[;] S&H also is not a freight carrier, does not transport anything and

does not sell anything that is transported[;] [i]t simply does not fall within the plain

language of the exclusion.”).
       I am persuaded, however, by the company’s argument that, since it serves as a

mere conduit relative to monies owed to the shipper, those funds should not be included

in the calculation of S&H’s gross receipts. Accord Brim Healthcare, Inc. v. Taxation and

Rev. Dep’t, 896 P.2d 498, 501 (N.M. 1995) (discussing a state policy of “excluding from

the gross receipts tax, money that a party receives as a trustee or agent”); City of Los

Angeles v. Clinton Merchandising Corp., 375 P.2d 851, 855 (Cal. 1962) (reasoning that

a license tax ordinance “includes as ‘gross receipts’ those sums received for the use

and benefit of the taxpayer and excludes those receipts which are held for the account

of another”); cf. In re Computrex, Inc., 403 F.3d 807, 811-12 (6th Cir. 2005) (discussing,

in the bankruptcy setting, brokers in the sense as serving as a mere conduit relative to

monies paid for brokered services, akin to the role of a disbursing agent or bailee).

       As the California Supreme Court has stated, and consistent with the

Pennsylvania policy of strictly construing statutes and ordinances imposing taxes, see

Majority Opinion, slip op. at 15, “[i]f the draftsmen further intended that no deduction

should be made for monies received on account of another, they would have so stated.”

Clinton Merchandising, 375 P.2d at 855. In this regard, I find pass-through payments to

be materially distinguishable from the “business related expense[s]” that are expressly

incorporated into gross receipts under the Regulation. See Majority Opinion, slip op. at

5 (quoting BPT Regulation §201).




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