Williams, L., Aplts v. City of Phila

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

LORA JEAN WILLIAMS; GREGORY J. : No. 2 EAP 2018

SMITH; CVP MANAGEMENT, INC. D/B/A :

OR T/A CITY VIEW PIZZA; JOHN'S : Appeal from the Order of

ROAST PORK, INC. F/K/A JOHN'S : Commonwealth Court entered on

ROAST PORK; METRO BEVERAGE OF : 06/14/2017 at No. 2077 C.D. 2016

PHILADELPHIA, INC. D/B/A OR T/A : affirming the Order entered on

METRO BEVERAGE; DAY'S : 12/19/2016 in the Court of Common

BEVERAGES, INC. D/B/A OR T/A DAY'S : Pleas, Philadelphia County, Civil

BEVERAGES; AMERICAN BEVERAGE : Division, at No. 01452 September

ASSOCIATION; PENNSYLVANIA : Term 2016.

BEVERAGE ASSOCIATION; :

PHILADELPHIA BEVERAGE : ARGUED: May 15, 2018

ASSOCIATION; AND PENNSYLVANIA :

FOOD MERCHANTS ASSOCIATION, :

:

Appellants :

:

:

v. :

:

:

CITY OF PHILADELPHIA AND FRANK :

BRESLIN, IN HIS OFFICIAL CAPACITY :

AS COMMISSIONER OF THE :

PHILADELPHIA DEPARTMENT OF :

REVENUE, :

:

Appellees :

LORA JEAN WILLIAMS; GREGORY J. : No. 3 EAP 2018

SMITH; CVP MANAGEMENT, INC. D/B/A :

OR T/A CITY VIEW PIZZA; JOHN'S : Appeal from the Order of

ROAST PORK, INC. F/K/A JOHN'S : Commonwealth Court entered on

ROAST PORK; METRO BEVERAGE OF : 06/14/2017 at No. 2078 C.D. 2016

PHILADELPHIA, INC. D/B/A OR T/A : affirming the Order entered on

METRO BEVERAGE; DAY'S : 12/19/2016 in the Court of Common

BEVERAGES, INC. D/B/A OR T/A DAY'S : Pleas, Philadelphia County, Civil

BEVERAGES; AMERICAN BEVERAGE : Division, at No. 01452 September

ASSOCIATION; PENNSYLVANIA : Term 2016.

BEVERAGE ASSOCIATION; :

PHILADELPHIA BEVERAGE : ARGUED: May 15, 2018

ASSOCIATION; AND PENNSYLVANIA :

FOOD MERCHANTS ASSOCIATION, :

:

Appellants :

:

:

v. :

:

:

CITY OF PHILADELPHIA AND FRANK :

BRESLIN, IN HIS OFFICIAL CAPACITY :

AS COMMISSIONER OF THE :

PHILADELPHIA DEPARTMENT OF :

REVENUE, :

:

Appellees :

DISSENTING OPINION

JUSTICE WECHT DECIDED: July 18, 2018

I agree with the doctrinal framework set forth by the learned Majority, which

invokes the legislative intent we have previously discerned in the Sterling Act1 to grant

the City of Philadelphia the widest practicable local taxing authority, provided that it does

not constructively duplicate a state-imposed tax. That is to say, I agree broadly with the

Majority’s reaffirmation of the “incidence test” articulated by this Court in Commonwealth

v. National Biscuit Co., 136 A.2d 821, 825-26 (Pa. 1957) (hereinafter, “Nabisco”2). I part

ways with the Majority in its conclusion that Philadelphia’s Sugar-Sweetened Beverage

Tax (“PBT”) passes muster under that test. Thus, I respectfully dissent.

In the Sterling Act, our General Assembly stated: “It is the intention of this section

to confer upon cities of the first class [i.e., Philadelphia] the power to levy, assess and

1 See Act of Aug. 5, 1932, P.L. 45, § 1, as amended, 53 P.S. §§ 15971-73.

2 Below, I have occasion to cite a separate decision of this Court involving National

Biscuit Co. For clarity’s sake, I use Nabisco only to refer to our 1957 decision.

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 2

collect taxes upon any and all subjects of taxation which the Commonwealth has power

to tax but which it does not now tax or license.” 53 P.S. § 15971(a). The General

Assembly then described and limited this taxing authority as follows:

[T]he council of any city of the first class shall have the authority by

ordinance, for general revenue purposes, to levy, assess and collect, or

provide for the levying, assessment and collection of, such taxes on

persons, transactions, occupations, privileges, subjects and personal

property, within the limits of such city of the first class, as it shall determine,

except that such council shall not have authority to levy, assess and

collect . . . any tax on a privilege, transaction, subject or occupation, or on

personal property, which is now or may hereafter become subject to a State

tax or license fee.

Id. This Court long has perceived the Sterling Act’s grant of taxing authority to

Philadelphia to be quite broad, ensuring since the time of the law’s Depression-era

enactment that Philadelphia has revenue power sufficiently robust to enable it to address

the peculiar challenges it faces as our most populous city. See Maj. Op. at 10-11 (citing

Nat’l Biscuit Co. v. City of Phila., 98 A.2d 182, 185 (Pa. 1953); City & Cty. of Phila. v.

Samuels, 12 A.2d 79, 81 (Pa. 1940)).

I have no quarrel with this paradigm. But it cannot be stretched to the point that

the legislative ban on duplicate taxation is ignored or read out of the law. In nominally

levying a tax imposed by volume upon the distribution of sugar-sweetened beverages

(“SSBs”)3 for retail sale, the Philadelphia City Council knowingly and intentionally

burdened end-consumers of SSBs in what amounts to a tax that duplicates the

Commonwealth sales tax upon the same broad category of beverages. 4 The evidence

3 As highlighted by the Majority, this moniker is misleading insofar as the tax applies

to certain beverages sweetened by sugar substitutes. See Maj. Op. at 2 (citing Williams

v. City of Phila., 164 A.3d 576, 579 (Pa. Cmwlth. 2017) (en banc); PHILA. CODE § 19-

4101(3)).

4 The details of the considerable overlap between SSBs under the PBT and “soft

drinks” as defined by the General Assembly for purposes of excluding them from the sales

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 3

lies not only in the text and structure of the PBT itself, but also in the process by which

the City considered, drafted, and refined the legislation.

****

As I dig more deeply into the PBT, I am compelled to greet skeptically the

characterization of the PBT as a “distribution” tax in the first instance. The PBT, enacted

by dint of the Sterling Act’s grant of authority, defines a distributor as “[a]ny person who

supplies sugar-sweetened beverage to a dealer.” PHILA. CODE § 19-4101(2). A dealer,

in turn, is “[a]ny person engaged in the business of selling sugar-sweetened beverage for

retail sale within the City.” Id. § 19-4101(1). However, Section 19-4103 makes clear by

its language that the tax in fact is not directed at distribution as such. Rather, the tax is

imposed upon the following:

[T]he supply of any sugar-sweetened beverage to a dealer; the acquisition

of any sugar-sweetened beverage by a dealer; the delivery to a dealer in

the City of any sugar-sweetened beverage; and the transport of any sugar-

sweetened beverage into the City by a dealer. The tax is imposed only

when the supply, acquisition, delivery or transport is for the purpose of the

dealer’s holding out for retail sale within the City the sugar-sweetened

beverage or any beverage produced therefrom.

Id. § 19-4103(1) (emphasis added). This broad list of taxable activities—supply,

acquisition, delivery, and transport—encompasses by implication distribution in its

common sense, but effectively and exclusively captures any logistical activity that serves

the end goal of retail sale of an SSB.

Notably, Subsection 19-4103(1), the core grant of authority in this putative

“distribution” tax, does not even use the word “distribution” or refer by its terms to a

tax exemption for certain food items are not essential to my analysis. However, the

distinctions may be gleaned by comparing Philadelphia Code § 19-4101(3) with 72 P.S.

§ 7201(a) (defining “soft drinks”) and the “soft drink” exemption from the sales tax

exclusion for “food or beverages for human consumption” provided in 72 P.S. § 7204(29).

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 4

“distributor.” Nonetheless, the express terms delineating taxable activities ensure that a

distributor can be taxed, wherever it is found, wherever its transaction with a Philadelphia

dealer occurs. But when a distributor cannot be taxed, for example because one cannot

be identified or has failed to provide the dealer with proof of registration, then the dealer

will be. See, e.g., id. § 19-4107(1). Indeed, no distribution in the conventional sense

need occur for the tax to come due. Rather, by design, the PBT ensures that the levy is

imposed once upon every SSB that is held out for retail sale in Philadelphia. See, e.g.,

id. § 19-4105(3) (protecting against double imposition of the tax upon a “distributor/dealer”

under circumstances where “the tax already has been imposed on the supply or delivery

of the beverage to the dealer/distributor or the acquisition of the beverage by the

dealer/distributor”). While the cost most frequently may be borne by distributors, it applies

whether or not a distributor is involved. Thus, the PBT effectively is tied not to distribution

itself, but rather to any activity that contributes specifically and exclusively to the supply

of SSBs intended for retail sale within the City.

We also must bear in mind the effect of the limitation of the Sterling Act’s taxing

authority to “persons, transactions, occupations, privileges, subjects and personal

property, within the limits of such city of the first class.” 53 P.S. § 15971(a) (emphasis

added). If the PBT can affect distribution or procurement outside Philadelphia—if, for

example, a dealer leaves Philadelphia to obtain SSBs with the intent to transport those

SSBs back into the City for retail—it is unclear how that extraterritorial transaction can be

taxed under a provision that permits taxation only within the city limits. In fact, the only

understanding of the activity to be taxed that respects and adheres to the statutorily

required geographical nexus with Philadelphia is that it applies inexorably to the offering

of SSBs for sale at retail in the City. Thus, for the PBT to be understood consistently with

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 5

the Sterling Act’s authority, we again must conclude that the tax by design targets retail

sales of SSBs.

These textually-driven inferences are difficult to dispute. Moreover, they are

reinforced by the history of the drafting, refinement, and enactment of the PBT, and by a

review of the process through which SSBs, rather than some other category of retail

commerce or economic activity, were selected as the source of the revenue that

Philadelphia tapped in order to fund improvements in early childhood education. The City

Council was well aware that much of the cost of the tax, wherever in the supply chain it

was to be assessed, would be passed through in significant part to the consumer. Indeed,

Council’s revenue projections incorporated the conservative assumption that sales of

SSBs would drop by 55% as a consequence of the tax’s expected impact on retail prices.5

Time and again, in meetings of the Committee of the Whole, Council heard from both

citizens and public officials that the PBT would reduce consumption of SSBs and that this

would have a salutary effect both city-wide and specifically in and on the very communities

that would receive revenues needed to fund new educational opportunities.

Relevantly, at the March 29, 2016 Committee Hearing, the Mayor’s Chief of Staff

signaled her familiarity with other cities’ experiences with the imposition of similar taxes,

vis-à-vis whether and to what extent the cost of the tax would be passed on from the

5 See Transcript, Hearing on Bill Nos. 160170, 160171, and 160172 Before the

Committee of the Whole (hereinafter “Committee Hearing”), 5/3/2016, at 112-13

(testimony of Thomas Farley, Commissioner of Philadelphia’s Department of Public

Health) (opining that the group estimating PBT receipts assumed a 55% decline in

consumption). Limited excerpts of transcripts documenting this hearing and others have

been submitted as exhibits to filings in the trial court. We may (and I do) take judicial

notice of the full transcripts of these meetings. Transcripts of public City Council

committee meetings may be obtained by utilizing the search form located at

legislation.phila.gov/council-transcriptroom/transroom_committee.aspx (last reviewed

June 6, 2018).

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 6

distributor to the consumer. She and the City’s Finance Director both attested that, in

those other cities, roughly half of the new tax burden reached the consumer.6 The

Mayor’s Chief of Staff also underscored the expectation that the tax would affect

consumer behavior when she emphasized that “part of the idea is that people will also

have a choice to make here and they can change to other beverage consumption.” 7 At

subsequent meetings, various public comments were received concerning the public

health benefits associated with reducing SSB consumption.8 Indeed, Philadelphia’s

Public Health Commissioner testified emphatically regarding his Department’s support of

“[w]hatever is going to reduce that consumption [of SSBs] the most,” noting that the

communities within which SSB consumption is most prevalent are also those low-income

communities that would be most sensitive to increased prices and most likely to reduce

consumption in the face of price increases.9

6 See Committee Hearing, 3/29/2016, at 19 (Chief of Staff Jane Slusser), 20

(Finance Director Rob Dubow).

7 Id. at 24. Chief of Staff Slusser and Finance Director Dubow relied upon the

experience of Berkeley, California, following its enactment of a similar tax directed at the

distribution of sugar-sweetened beverages. The degree to which the cost of the

distribution tax imposed by Berkeley was passed to consumers is taken up at length in a

study prepared by the Public Health Institute and the Global Food Research Program of

the University of North Carolina at Chapel Hill, attached to the Complaint as Exhibit N.

This pass-through question was of particular importance to Berkeley officials, because

Berkeley specifically intended to reduce through retail price increases the rate of

consumption of SSBs to improve public health.

8 See, e.g., Committee Hearing: Neighborhood, 4/12/2016, at 23-24 (comments of

Barbara Gold, M.D., Philadelphia pediatrician).

9 Committee Hearing, 5/3/2016, at 92, 93-102 (testimony of Commissioner Thomas

Farley).

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 7

In a recorded and transcribed April 7, 2016 conversation10 with Michael

Smerconish, Mayor Jim Kenney echoed these themes. The Mayor made clear that his

focus in advancing the PBT was to generate revenue for the various educational

programs slated to receive the proceeds of the levy. Mayor Kenney also acknowledged

that a substantial portion of the tax burden would be borne by the consumer. With respect

to the prospect that the tax burden would be passed on, the Mayor stated that, if a

consumer is “mad at Jim Kenney because he raised the tax on sugary sweet beverages,

[the consumer] can choose not to buy that item.” Interview by Michael Smerconish (April

7, 2016). Mayor Kenney suggested that the consumer might select a “healthy choice”

instead. Id. The Mayor continued to emphasize the element of consumer choice, and

invoked the beverage tax experience of Berkeley, California, where approximately half of

the levy’s burden had reached consumers. Confronted with accusations that the tax was

a “nanny state” measure, Mayor Kenney responded as follows:

Well we’re not a nanny state. We’re a city with a large poor population that

costs us money in many different ways. If you look at the cost of our prisons,

the cost of prosecuting crime, the cost of fighting crime, the cost—the

unreimbursed costs of health issues like diabetes and other things, we pay

in the end anyway.

Id. (emphasis added). Finally, after underscoring the benefits of the universal pre-K

opportunities to be funded by PBT revenues, Mayor Kenney again emphasized the

“ancillary health benefits which are terrific, if people start drinking less sugar-sweetened

beverages.” Id.

Thus, speaking generally, the many official and public discussions that occurred

during the preparation and enactment of the PBT expressly invoked both the virtues of

the educational opportunities to be funded and the health benefits to be realized from

10 The transcript was entered into the record as Exhibit M to the Tax Objectors’

Complaint.

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 8

deterring SSB consumption, specifically by way of the anticipated pass-through of a

portion of the tax burden to the consumer in the form of higher retail prices. Although

great consideration was given to the direct beneficiaries of the anticipated tax revenues,

attention also was directed to the public health benefit associated with reducing obesity

and other conditions caused or exacerbated by consumption of SSBs. Significantly, at

various times and in various ways, that benefit was cited to justify taxing SSBs, rather

than some other category of commerce or retail item, in order to fund universal pre-K.

****

It is against this legal and circumstantial backdrop that this Court must determine

the validity of the PBT. In doing so, we cannot overlook our historically strict approach in

construing the scope of the taxing power conferred upon local governments by the

General Assembly, in this case by the Sterling Act:

[I]t is a principle universally declared and admitted that municipal

corporations can levy no taxes, general or special, upon inhabitants, or their

property, unless the power be plainly and unmistakably conferred. And the

grant of such right is to be strictly construed, and not extended by

implication. . . . In cases of doubt the construction should be against the

government.

Murray v. City of Phila., 71 A.2d 280, 283 (Pa. 1950). The Murray Court brought this

principle to bear on whether the tax there at issue exceeded the Sterling Act’s

authorization by amounting to “double taxation of the same thing.” Id. at 284. This Court

noted that, “[i]n determining whether double taxation results, whether the city tax conflicts

with that imposed by the state [for Sterling Act purposes], the practical operation of the

two taxes is controlling as against a mere difference in terminology from time to time

employed in describing taxes in various cases.” Id. (emphasis added).

Our approach to examining whether a new local tax is duplicative under the

Sterling Act has remained practical, perhaps to a fault, as illustrated by the Majority’s brief

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 9

effort to demonstrate how the incidence test brings our disparate case law into harmony,

an effort that, unsurprisingly, yields a pointillist account revealing no clear motif. See Maj.

Op. at 18 n.14 (confessing that “[w]e are under no illusion concerning the intuitiveness

and cohesiveness of the decisions in the Sterling Act line on various points.”).11 The

acknowledged elusiveness of clear guidance is most evident in this Court’s failure long

ago to reach even the shadow of consensus in deciding United Tavern Owners of

Philadelphia, 272 A.2d 868 (1971), the case whose facts most closely resemble those

before us today.12

These caveats aside, I have no objection to the Majority’s first interpretive step,

which focuses upon the utility of Nabisco’s “incidence test.” Echoing Murray, the Nabisco

Court described the test as follows:

In determining whether a tax duplicates another tax and results in double

taxation prohibited to local taxing authorities, the operation or incidence of

the two taxes is controlling as against mere differences in terminology from

time to time employed in describing taxes in various cases. The incidence

of a tax embraces the subject matter thereof and, more important, the

measure of the tax, i.e., the base or yardstick by which the tax is applied.

11 The Majority’s concession in this regard arguably contradicts its later observation

that its “determination that the [PBT] survives scrutiny under a plain meaning application

of the Sterling Act.” Maj. Op. at 22 n.19. The complexity and arguable irreconcilability of

past precedent, as well as aspects of my discussion below, strongly suggest that the text

of the Sterling Act is anything but a model of clarity.

12 Justice O’Brien authored the lead opinion, which no justice joined. Chief Justice

Bell and Justice Roberts concurred only in the result. Justice Pomeroy filed a dissent in

which Justice Eagen joined. Justices Jones and Cohen did not participate in the case.

The similarity of United Tavern Owners leads the parties to debate at length which of the

views expressed in that case should prevail, which prompts the Majority to discuss that

1971 decision at greater length than any other Pennsylvania case. See Maj. Op. at 22-

23. I discern little if any analytic utility in United Tavern Owners, a case that failed to

generate any precedential holding. Rather, I believe that we must wrestle with such rules

as we can glean from the Sterling Act itself and the principles it embodies, moreso than

with our inapposite and non-binding case law on the matter, which offers scant guidance.

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 10

Nabisco, 136 A.2d at 825-26 (emphasis added). The Majority describes this principle as

the “legal incidence” test. In so many words, the legal incidence test asks what is taxed

and how that “it” is taxed.

The Majority distinguishes the legal incidence test from what it calls the “economic

incidence” test. The Majority notes that, in Jon Wanamaker, Philadelphia v. School

District of Philadelphia, 274 A.2d 524 (Pa. 1971), this Court distinguished between the

“economic incidence” of a local tax imposed upon the use of commercial and industrial

property, which fell upon the property, and the legal incidence, which was driven not by

the property itself but by its use. Relative to this case, the Majority implies, an economic

incidence test would concern itself with whether what appears as a distribution tax in fact

amounts to a sales tax—as asserted by the Plaintiff-Objectors herein—because it will be

passed through from distributor to retailer to consumer. Citing Wanamaker and an

unrelated United States Supreme Court opinion, the Majority concludes that the Sterling

Act offers no suggestion that Pennsylvania courts should “embark upon such an inquiry

into economic incidence for purposes of evaluating the permissibility of local taxes.” Maj.

Op. at 16.13

Taken in isolation, I do not find this argument compelling, but I have no issue with

the cautionary approach it embodies. It certainly is true that, if one sufficiently broadens

one’s focus, one can trace the vast majority of taxes of any kind to the final participant in

a given chain of commerce. Cf. Maj. Op. at 18 (quoting Commonwealth v. Neiman, 84

13 Neither does the Sterling Act specifically instruct courts to consider the “base or

yardstick by which the tax is applied,” as Nabisco prescribes. See Nabisco, 136 A.2d at

826. It also bears noting that, to the extent the legal incidence test relies upon the person

or entity upon whom the tax is imposed to distinguish one tax from another, it cannot

identify a payor without in some sense engaging in what the Majority calls an “economic

incidence” analysis. This is not to say that the downstream effect of a given tax should

be dispositive, or even should predominate, in any inquiry of tax sameness. It is merely

to suggest that what the Majority treats as a bright-line distinction between economic

incidence and legal incidence proves murky in practice.

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 11

A.3d 603, 612 (Pa. 2013)) (“[M]atters that are distinct, for instance at a transactional level,

can often be described as having a single subject ‘if the point of view be carried back far

enough.’”). That is to say, for example, that one can make a persuasive argument in the

abstract that the income tax burden imposed upon the chief executive of a given soft drink

manufacturer has a direct, if miniscule, effect on the price at retail of a can of that soft

drink. But merely citing the “legal incidence” approach and calling it a “reasonably bright

line standard” does not immunize that test from similar difficulties, especially when one

inquires as to “the subject matter” of the tax, which, too, can be described so broadly as

to encompass whole swaths of commercial activity or so narrowly as to all but eliminate

any practical likelihood that any tax will be deemed duplicative of another, provided they

differ in any trivial detail. In either instance, there remains a degree of discretion in the

application, a flexibility that can become an unprincipled stain on the governing

jurisprudence or, duly restrained, may serve as a tremendous asset in fairly

circumscribing a municipality’s taxing authority where, as in this case, local duplication of

a state tax is verboten.

I am sensitive to the limited utility of an “economic incidence” test. As noted above,

applying such a test at a sufficient level of generality would lead one to conclude that

virtually any tax Philadelphia might impose would in some sense be duplicative of some

other state tax, since every cost of doing business will tend to flow downstream to the

end-purchaser. Thus, if that consideration is to enter into our analysis at all, it must be

utilized narrowly and with great care. Still, I cannot endorse the Majority’s categorical

rejection of the relevance of the economic effect of a given tax for purposes of the Sterling

Act inquiry, given our oft-repeated concern for the practical effect of the tax rather than

how it is described or how it nominally operates. Who benefits and who is burdened are

essential inquiries in discerning the true nature of any tax. Simply to assert that he who

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 12

superficially bears the immediate burden of a given tax is the only burdened party, or

even the chiefly burdened party, is to undermine our time-honored emphasis upon the

practical effects of a given tax. Certainly, who bears the brunt of the tax in the final tally

has some relevance to the question, even if courts employ that tool with sensitivity to its

explanatory limitations.

The Sterling Act limits the taxing authority it confers by denying Philadelphia “the

authority to levy, assess and collect . . . any tax on a privilege, transaction, subject or

occupation, or on personal property, which is now or may hereafter become subject to a

State tax or license fee.” 53 P.S. § 15971(a). Plain language strips most of the

enumerated categories of taxation of any relevance to this case, leaving us to focus upon

the two that remain: whether the distribution “transaction,” as such, is impermissibly

duplicative of the state sales tax; or, whether the actual “subject” of the distribution tax

echoes the “subject” of the state tax. In assessing the import of these terms, we must

give distinct effect to each of them. See 1 Pa.C.S. §§ 1921(a); White Deer Twp. v. Napp,

985 A.2d 745, 760-61 (Pa. 2009) (observing that we must interpret a statute, “if possible,

to give effect to all its provisions,” requiring us to give each term in a statute independent

meaning and effect).

The answer to the “transaction” inquiry is clear: The point of imposition and

collection, as well as the measure, of the distribution tax plainly differ materially from the

sales tax as applied to retail soft drink purchases. Thus, if there is impermissible

duplication, it lies in the conclusion that the PBT and state sales tax, under the instant

circumstances, have the same “subject.” For present purposes, the question presented

is whether the subject of the PBT is, practically, the distribution or retail sale of SSBs.

The Majority relies ultimately on a fairly rigid application of the Nabisco rubric,

noting the distinction between the putative subject of the PBT (distribution versus retail

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 13

sales), the different measures employed to assess each (volume versus a percentage of

retail price), and the distinct putative payors of the tax (distributors versus consumers).

These, the Majority would conclude, obviate any suggestion that the “subject” of the PBT

is duplicative of the “subject” of the sales tax.

Whatever its superficial appeal, I find this analysis wanting in practice. Informed

by our continuing emphasis on assessing the defining aspects of a tax by how it actually

operates in the world, I am compelled to conclude that the true and intended subject of

the PBT is, and has always been, the retail purchase and consumption of SSBs. To find

otherwise is to insist that, in knowingly deterring the purchase of soft drinks by effectively

ensuring some increase in the retail price, it was merely the curtailment of their distribution

that the Council actually effectuated and intended. This neat conclusion is one that the

text of the PBT cannot bear and in fact does not sustain, given how quickly that text

wanders afield of that particular commercial function (i.e., distribution) whenever it must

in order to ensure that not a single drop of SSB is sold at retail within the jurisdiction

without first paying the prescribed assessment. To make sense of the intended reduction

in consumption coupled with the raising of revenue upon the backs of the end-purchasers,

which the City Council so certainly anticipated that it built that reduction into its

calculations, the distribution point must have been understood merely as where the tax

would be imposed for administrative purposes (with the ancillary benefit that it would

furnish Council the best chance of avoiding Sterling Act invalidation).14 Nor is it

14 The Majority endorses the United States Supreme Court’s concern, stated in

Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450 (1995), that, “if we were

to make ‘economic reality’ our guide, we might be obligated to consider, for example, how

completely retailers can pass along tax increases without sacrificing sales volume—a

complicated matter dependent on the characteristics of the market for the relevant

product.” Maj. Op. at 15 (quoting Chickasaw Nation, 515 U.S. at 459-60). Respectfully,

while this may present an intractable problem in another case, I disagree that it

establishes the necessity of a categorical exclusion of such considerations, especially

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 14

persuasive to find a dispositive distinction in the method of calculation—volumetric versus

price-driven. In either case, revenues raised and consumption deterred are

fundamentally and inextricably responsive to the volume of SSBs purchased at retail.

Simply put, I do not find the Majority’s effort to find the safe harbor of clarity in the

bright-line of the “legal incidence” test reconcilable with a test requiring the assessment

of a tax’s practical effect. Indeed, speaking generally, I find irreconcilable the very notions

of a practical inquiry and a bright-line test, and I discern no substantive benefit in this

context to abandoning our long-standing if messier approach to such questions. For this

reason, I find it incongruous to imply, as the Majority does, that we cannot seek a given

levy’s “legal incidence” by looking beyond nomenclature to focus upon its foreseen, and

even intended, effects—regardless of whether that entails some consideration of

economic effects. The “subject” of the PBT is SSB consumption at retail. The only way

to find otherwise is to indulge the convenient fiction of calling the PBT a distribution tax,

despite the fact that the levy does not even use that terminology in the critical passage

and despite the fact that the PBT suggests no concern for whether it actually is levied on

distribution as such, but only the concern that no SSB intended for retail sale eludes its

grasp.

The Council and the Mayor, guided in part by officials and experts who anticipated

and saw social good in reducing the consumption of SSBs, enacted the PBT to realize

the dual benefits of funding universal pre-K education and improving public health.

Although the PBT’s advocates often foregrounded the educational benefits, they treated

where, as here, the text of the ordinance as well as the record so clearly reflect a

conscious concern for, and arguably the desire for, the trickling down of the PBT’s levy to

the retail consumer. It is implicit in any practical inquiry that its scope and contour are

case-specific. It seems to me uncontroversial that a particular economic consideration

which a court finds germane in one case may be too problematic or ill-fitting to incorporate

into the court’s analysis in a different case.

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 15

as complementary, rather than merely incidental, the public health benefits associated

with substantial reductions in SSB consumption, which they anticipated would manifest

disproportionately in the very same communities that would receive the lion’s share of the

PBT revenues collected. Nowhere is it suggested that they treated this as a happy

accident. Nor should we. The Sterling Act provided sufficient authority for Council to

generate new revenue by any number of means—and the political actors behind the PBT

selected SSBs as the most suitable. We would unmoor Council’s choice, as embodied

in the text of the PBT and reinforced by the process of its development and enactment,

from its full context were we to pretend that deterring SSB consumption was merely

incidental. I do not discern how we may indulge this fiction. The only conventional

mechanism to deter consumption is to increase the effective retail cost of SSBs. By

imposing a substantial tax specifically upon SSB “distribution,” Council literally banked on

that effect.

It elevates form over substance to grant Philadelphia the benefit of its self-serving

description, when to do so obscures the tax’s foreseeable and intended effect—one that

the Mayor and Council, in fact, studied in gauging the prudence and effectiveness of an

SSB tax in the first instance, one that was designed to affect all avenues by which a can

of cola might arrive in a bodega cooler. Furthermore, to split hairs based upon

Philadelphia’s chosen characterization confounds our time-honored interpretive

presumptions, which unerringly favor the putative taxpayer when the scope of a tax-

authorizing statute is in question.

I am sensitive to the challenges facing cities seeking to finance their own needs,

especially given the limited degree to which funds flow from state coffers to address those

needs. Furthermore, I am mindful that, in answer to this difficulty, the General Assembly

with the Sterling Act long ago invited Philadelphia to finance its own initiatives by

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 16

collecting revenues from those who live and do business within the city limits. But the

Sterling Act’s grant of broad taxing authority is not absolute, and it specifically precludes

Philadelphia from piggybacking on extant state taxes. The General Assembly has seen

fit to impose a sales tax on certain goods, including a class of beverages that overlaps

heavily with SSBs. In imposing a tax that foreseeably would be borne in substantial part

by the retail purchaser, the City of Philadelphia knowingly stacked the PBT upon the state

sales tax, and in so doing duplicatively taxed retail trade in soft drinks, a “subject” already

burdened by the state sales tax. For these reasons, I believe we are bound to find that

the PBT impermissibly imposes upon the state sales tax in violation of the Sterling Act.

A rose by any other name smells just as sweet, and, whether styled a retail tax or

a distribution tax, the levy here at bar, like the state sales tax, raises revenue specifically

by burdening the proceeds from the retail sale of sugar-sweetened beverages. This the

Sterling Act does not allow. I respectfully dissent.

[J-31A-2018 and J-31B-2018] [MO: Saylor, C.J.] - 17