Morrisville Scrap Processing Co., Inc. Tax Appeal , 1972 Pa. Commw. LEXIS 304 ( 1972 )

Opinion by

Judge Rogers,

In this case, a dealer in scrap metal seeks a decision that it is engaged in manufacturing and therefore exempt from capital stock taxation, under the Capital Stock Tax Act, Act of June 1, 1889, P. L. 420, as amended, 72 P.S. 1871.¹

The Commonwealth assessed the capital stock tax against the appellant for its fiscal year ending September 80, 1969, although the Act provided that it should “. . . not apply to the taxation of the capital stock of corporations . . . which is invested in and actually and exclusively employed in carrying on manufacturing . . . within the State. ...” The appellant contends that its capital stock is actually and exclusively employed in carrying on manufacturing. Although the decided cases are against its position, appellant claims that the record made by it, unlike those of earlier cases, contains such “technical and metallurgical testimony” and evidence of “chemical changes” to the scrap under the appellant’s ministrations as should convince us that a result different from that previously reached should here obtain.

We make the following findings of fact:

1. The appellant is a Pennsylvania corporation, and during its fiscal year here in question was engaged in the scrap metal business.

2. Appellant’s plant is at Morrisville, Pennsylvania, near the Pairless Works of the United States Steel Company.

3. Appellant collects scrap metal from the following sources: junk automobiles from auto wreckers; so-called “home scrap” from the steel mills, being the croppings from billets or ingots, improperly rolled sheets, and discarded pipe, beams and other items; trimmings from automobile stamping plants; and punchings from fabricators of plates and beams.

4. The appellant removes the nonferrous materials from junk automobiles including copper, brass, wire, seats, rubber, aluminum, the motors and any other die cast materials.

5. Appellant separates the ferrous metals obtained from the several sources mentioned into approximately ten or twelve so-called grades of scrap useful in the steel-making business. The United States Steel Corporation, the appellant’s principal customer, supplies specifications for the several grades, some for use in their open hearth furnaces and some for use in the newer electric furnaces.

6. Although the separation by the appellant of types of scrap is essential for use in the steel mills, nothing tangible is added to the scrap by the appellant. Although the separating operation requires some skill, the classification descriptions supplied by the mills are not highly technical.

7. After having separated the scrap the appellant cuts and shapes some into bundles of size and density suitable to be inserted into the steel manufacturers’ furnaces. This it performs by means of huge and costly hydraulically operated presses and shears. Some of the scrap requires only cutting to lengths suitable for insertion into the furnaces.

8. While the pressing operation engaged in by the appellant produces heat, the only effect of the heat is to soften the scrap so that it may compact to a greater extent. Neither the heat produced in the compacting operation nor any other thing done by the appellant produces a chemical change in the scrap metal.

9. The pressing operation causes the elimination of the open spaces in the material, so that it becomes more like a solid piece of steel. In this sense only it makes the materials more dense.

10. If scrap material is not compacted or is insufficiently compacted when placed into the steelmaker’s furnace, it either changes to iron oxide and becomes part of the slag layer of the furnace or, in the case of an electric furnace, requires more frequent back charging of the furnace with accompanying reduction of productivity. Therefore, the denser the bundles can be made, the more valuable they are to the steel mill.

11. The scrap as it comes to appellant’s plant is potentially but not actually valuable; after the separating, shearing and compressing operations performed upon it by the appellant it is a commercially valuable product.

Discussion

The word “manufacturing,” when employed in a statute or other taxing measure without further definition, consists in the application of labor and skill to material whereby the original article is changed into a new, different and useful article. WTiether or not an article is a manufactured product depends on whether it has gone through a substantial transformation in form, qualities and adaptability in use from the original so that a new article or creation has emerged. Commonwealth v. Weiland Packing Co., 292 Pa. 447, 141 A. 148 (1928); Commonwealth v. McCrady-Rodgers Co., 316 Pa. 155, 174 A. 395 (1934).

The Berio Vending Company preheated coconut oil, poured it into kettles, added corn and salt, and turned up the heat, which latter when it reached 450 degrees caused the corn to explode and become popcorn. Berio took its popcorn to public places, warmed it over and sold it by the box full. The Supreme Court held that Berio was not engaged in manufacturing and was therefore required to pay the Capital Stock Tax. Commonwealth v. Berlo Vending Co., 415 Pa. 101, 202 A. 2d 94 (1964). The court felt that the transformation from kernel to popcorn was a superficial rather than a substantial transformation and that little skill was involved in bringing about the result.

The Tetley Tea Company by the use of intricate machinery separated tea from foreign matter, blended the tea and placed it in bags fabricated by it. Its mechanics received special training. The Supreme Court held this process not to be manufacturing because no new and different product was created. “The process starts and ends with tea.” Commonwealth v. Tetley Tea Company, Inc., 421 Pa. 614, 617, 220 A. 2d 832, 834 (1966).

In General Foods Corp. v. Pittsburgh, 383 Pa. 244, 118 A. 2d 572 (1955), the decaffeination of coffee and the canning of foods were held not to be manufacturing. In another case, the production of potato chips was held to be manufacturing apparently because of the considerable skill required in selecting and aging the potatoes. Commonwealth v. Snyder’s Bakery, 348 Pa. 308, 35 A. 2d 260 (1944).

The Electric Welding Company purchased steel rods and coils. It cut the rods to various lengths and bent and twisted them to suit specific concrete reinforcing purposes for which uses they were sold to contractors. The coils it straightened, recoiled, assembled into a spiral and stabilized by steel channels tack-welded to the spiral, for sale to the contracting trades as reinforcing elements in concrete columns and piers. The Supreme Court held that these operations did not result “. . . in any well signalized or substantial transformation in the form or quality of the steel materials . . .” bought from the producers and resold “. . . with a twist or bend to its customers” and therefore were not manufacturing. Pittsburgh v. Electric Welding Co., 394 Pa. 60, 64, 145 A. 2d 528, 530 (1958).

Directing our attention to appellant’s activities, we note that they consist of obtaining various type of scrap metal from which, as in the case of the tea company, it removes unwanted matter, but which as contrasted to the blending of tea, it separates according to grades. We note that as in the case of the seller of reinforcement steel, the appellant cuts its scrap into merchantable lengths and by pressure compacts it to a size and density desired by its customer, the steel manufacturer. Appellant by compacting the scrap causes it to occupy a much smaller space than it did previously, as contrasted to the capacity of the kernels of corn to occupy more space when the oil is right. But, as with the tea blender, the steel bar and coil preparer and the popcorn maker, the appellant’s process starts and ends with scrap. Nothing of metallurgical significance occurs to any particular article of scrap. It is true that by placing individual pieces of scrap with others of like composition a bundle of scrap having properties useful in making a particular grade of steel results. But the bundle is still scrap metal, as the reinforcing rod is still a rod, the tea bag is still tea and the popcorn still corn.

Our conclusion that the appellant’s capital is not employed in manufacturing, is supported in the only cases precisely in point. Richman Sons, Inc. v. School District of Philadelphia, 1 D. & C. 2d 870 (1954) ; Commonwealth v. The Deitch Company, 94 Dauphin 112 (1971). We are told that Deitch is on appeal to the Pennsylvania Supreme Court. Commonwealth v. Sitkin’s Junk Co., Inc., 412 Pa. 132, 194 A. 2d 199 (1963), holding that an operation identical to appellant’s was manufacturing within the Selective Sales and Use Tax Act’s definition of that word as the performance of operations placing personal property in a form, composition or character different from that in which it is acquired, is of no assistance here.

The Commonwealth additionally contends that there are no issues before us because the appellant rather than specifying its objections in its appeal here, referred by reference to its petition for review to the Board of Finance and Revenue. The Commonwealth cites Section 1104 of the Fiscal Code, Act of April 9, 1929, P. L. 343, 72 P.S. §1104, under which the appeal here was made as requiring a statement of objection in the appeal and contrasts it with Section 1103, 72 P.S. §1103, which allows incorporation by reference. While we do not condone the practice here employed, we have concluded that in this essentially one issue ease there was sufficient compliance with the statute especially as the petition for review was attached as an exhibit to the appeal. The purpose of both sections is to provide the taxing authorities and the reviewing body with notice of the issues and this was accomplished here.

Conclusions of Law

1. Appellant is engaged in the business of buying, cleaning, sorting, cutting and compacting scrap metal for sale to and use by steel manufacturers.

2. The activities engaged in by the appellant are not manufacturing and its capital is not employed in manufacturing for purposes of the Capital Stock Tax.

3. The capital stock of the appellant corporation for its fiscal year ending September 30, 1969 is subject to the Capital Stock Tax in the sum of $3,558.00 as settled by the Revenue Department and sustained by the Resettlement Board and the Board of Finance and Revenue.

Order

And Now, the appeal of Morrisville Scrap Processing Company, Inc. is denied, the decision of the Board of Finance and Revenue is affirmed and judgment is entered in favor of the Commonwealth of Pennsylvania in the sum of $3,558.80 with interest from August 17, 1970, the date of settlement.

1 The cited Act was repealed and replaced by Article VI of The Tax Reform Code of 1971, Act of March 4, 1971, P. L. , 72 P.S. §§7101 to 8203. The new legislation does not provide for the manufacturing exemption which is the subject of this case.