OFFICIAL OPINION No. 19

OFFICIAL OPINION No. 19 Liquid fuels tax-Exemption-Delaware River Port Authority-Act of May 21, 1931, P. L. 149. Gasoline purchased and used by the Delaware River Port Authority is not subject to the imposition of the liquid fuels tax under The Liquid Fuels Tax Act, Act of May 21, 1931, P. L. 149, as amended, 72 P. S. §§ 26lla-26llz. Harrisburg, Pa., October 10, 1957. Honorable Gerald A. Gleeson, Secretary of Revenue, Harrisburg, Penn- sylvania. 98 OPINIONS OF THE ATTORNEY GENERAL Sir: We have received your request for advice as to whether gasoline purchased and used by the Delaware River Port Authority is subject to the imposition of the liquid fuels tax under The Liquid Fuels Tax Act, the Act of May 21, 1931, P. L. 149, as amended, 72 P. S. §§ 2611a-2611z. Although many State courts and the United States Supreme Court have held that a tax based upon and measured by the gallonage of gasoline sold, used or possessed is an excise tax and not a property tax, Monamotor Oil Company v. Johnson, 292 U.S. 86, 78 L. ed. 1141, 54 S. Ct. 575 (1934) 1, the Pennsylvania Supreme Court held otherwise in the case of Commonwealth v. Pure Oil Company, 303 Pa. 112, 154 Atl. 307 (1931). While this Pennsylvania case construed the Act of May 1, 1929, the subsequent reenactment of The Liquid Fuels Tax Act, the Act of May 21, 1931, P. L. 149, as amended, 72 P. S. §§ 2611a- 2611z, did not significantly change those provisions which the court believed were determinative in reaching its conclusion that the tax was not an excise tax but a tax on property. The Liquid Fuels Tax Act does not specifically exempt from taxa- tion the gasoline acquired or used by the Delaware River Port Au- thority. The imposition section of the tax act provides that: "A permanent state tax .. . , is hereby imposed upon all liquid fuels used or sold and delivered by distributors within the Commonwealth .... * * * * * * "The tax shall be payable upon liquid fuels sold and de- livered to or used by the Commonwealth and every political subdivision thereof." Act of May 21, 1931, P. L. 149, 72 P. S. § 2611d. The Delaware River Port Authority was originally organized as the Delaware River Joint Commission under a Compact between two sovereign states, Pennsylvania and New Jersey. The enabling Penn- sylvania statute was the Act of June 12, 1931, P. L. 575, as amended, 36 P. S. §§ 3503-3505. The Authority is exempt from the payment of all the taxes on property acquired or used by it by the express terms of the Compact which state: ". . . since the commission will be performing essential governmental functions in effectuating said purposes, the com- mission shall not be required to pay any taxes or assessments upon any property acquired or used by it for such pur- poses, . .. " Agreement between the Commonwealth of Penn- sylvania and the State of New Jersey, Act of June 12, 1931, P. L. 575, § 1, 36 P. S. § 3503, Article XI. 'See 47 A. L. R. 998. 84 A. L. R. 866, 111 A. L. R. 200. OPINIONS OF THE ATTORNEY GENERAL 99 The enabling Pennsylvania statute creating the Delaware River Port Authority was enacted on June 12, 1931, while The Liquid Fuels Tax Act was enacted on May 21, 1931. Therefore, the express exemp- tion from taxation on property acquired or used by the Authority contained in Article XI of the Compact controls, since the law later in date of final enactment must prevail; Statutory Construction Act, Act of May 28, 1937, P. L. 1019, § 66, 46 P. S. § 566. Therefore, this department is of the opinion and you are accordingly advised that gasoline purchased and used by the Delaware River Port Authority is not subject to the imposition of the liquid fuels tax under The Liquid Fuels Tax Act, the Act of May 21, 1931, P. L. 149, as amended, 72 P. S. §§ 26lla-26llz. Very truly yours, DEPARTMENT OF JUSTICE, SIDNEY MARGULIES, Deputy Attorney General. THOMAS D. McBRIDE, Attorney General.