Ross v. Philadelphia , 149 Pa. Super. 33 ( 1941 )

I would affirm the decree of the court below. Appellant concedes that he is engaged in a profession, and he does not deny the constitutional or statutory power of the city to levy a tax upon either his profession or his total income, whether in the nature of earnings or gifts. Appellant asserts, however, that the ordinance restricts taxation to such income as was the price of services performed by the persons to be taxed, and that the contributions received for religious services were gifts, though received by virtue of, and in the performance of, the duties of the profession.

In my opinion, money given for the performance of professional services of value, no matter how made or what it may be called, cannot reasonably be construed as a tax exempt gift; such payment is earned income and not a gratuity. "Earn" means to gain, get, obtain, or acquire as the reward of labor or performance of some service. Lewis' Estate, 156 Pa. 337, 340, 27 A. 35. Income is no less earned income although it could not be recovered by suit; but if the income results from contributions for services it is earned income within the meaning of the ordinance. Therefore, money and other articles of value received by appellant from individuals at whose request various professional services were performed by him are earned income. There can be no difference of opinion that Christmas gifts would not be considered income to the recipients; they are not compensation for services. I think the distinction is in whether or not the transfer is made for services rendered. If no services have been rendered the contribution may be a mere gift or gratuity, and not taxable. It is an essential characteristic of a gift that it be a transfer without consideration. The absence of a price or contract does not make the payment any less income and thereby relieve it from taxation under the ordinance. It is immaterial whether appellant received a regular fixed salary, paid him by the congregation or mission which he regularly served, in so far as the present case is concerned. Other income which he may have received as a result of the practice of his profession is nevertheless taxable. I fully agree with the statement of counsel for appellees that no reason appears why clergymen should be exempt from the operation of this ordinance. As we recently said in Cityof Philadelphia v. Schaller, 148 Pa. Super. 276, at page 281, 25 A.2d 406, at page 409: "From the plain meaning of its language [Sterling Act] it is clear that nondiscriminatory taxes were contemplated." No less can be said of the present ordinance.

The opinion of the court below, by MILNER, DAVIS, and MacNEILLE, JJ., contains a comprehensive discussion of the material features of this case, and properly concludes that appellant's bill should be dismissed.

HIRT, J. joins in this dissent.