Jones & Brown, Inc. v. Pittsburgh , 6 Pa. Commw. 563 ( 1972 )

Concurring Opinion by

Judge Kramer :

Although I concur in the opinion of the majority written by my brother Judge Wilkinson, I believe I must add that the taxpayer had the burden of proving that its home improvement contractor-vendees were reselling the items purchased from the taxpayer. It failed to do so in this record.

We can take judicial notice of the fact that some home improvement contractors deal in what is known as a “time and material” contract. Under such contracts the contractor spells out the fact that, in addition to a charge for labor at a stated cost per hour or day, all items (such as those sold by this taxpayer) used in the construction, alteration or repair job are to be billed to the homeowner at the cost to the contractor plus a stated percentage of profit. This type of contractual arrangement is quite common. Under such facts I would hold this taxpayer to be selling at wholesale. In any event the burden of proving these facts falls upon the taxpayer. Therefore I concur.