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08/12/93 ROBERT STIEHLER v. PUBLIC SERVICE

August 12, 1993

ROBERT STIEHLER, ET AL, PETITIONERS
v.
PUBLIC SERVICE COMMISSION OF THE DISTRICT OF COLUMBIA, RESPONDENT



Before Steadman, Schwelb and King, Associate Judges

The opinion of the court was delivered by: Schwelb

On Petition for Review of Orders of the Public Service Commission of the District of Columbia.

SCHWELB, Associate Judge: Robert O. Stiehler and L. Leonard Hacker (the consumers) have petitioned this court for review of orders of the Public Service Commission of the District of Columbia (the Commission) holding that the District's gross receipts tax (GRT) allows public utilities to collect a "tax-on-tax" from their customers. The consumers contend that the plain language of the statute precludes any "tax-on-tax" effect. We affirm.

I.

On June 12, 1991, the Council of the District of Columbia enacted the District of Columbia Gross Receipts and Toll Telecommunication Service Tax Emergency Amendment Act of 1991, which amended D.C. Code § 47-2501 (1990) to increase the GRT for public utility and toll telecommunications services from 6.7 percent to 9.7 percent. The statute now provides, in pertinent part, as follows:

(a) Before the 21st day of each calendar month, each gas, electric lighting and telephone company that sells public utility services or commodities within the District of Columbia shall:

(1) File an affidavit with the Mayor indicating the amount of its gross receipts for the preceding calendar month from the sale of public utility services and commodities within the District of Columbia; and

(2) Pay to the Mayor 9.7% of these gross receipts.

D.C. Code § 47-2501 (Supp. 1993).

On November 5, 1991, the Office of People's Counsel (OPC) requested the Commission to conduct an investigation to determine whether the GRT was being collected properly. Initially, the consumers, who participated in the hearings and were then represented by the OPC, contended primarily that the proposed "tax-on-tax" effect conferred an unwarranted cost of service premium to the utilities or, to put it another way, that the utilities were realizing a net gain to which they were not entitled. It was established by expert testimony before the Commission, however, that the utilities were not being enriched in this way. OPC so stipulated on behalf of the consumers in a partial settlement which was subsequently approved by the Commission. The consumers no longer press this argument. *fn1

Represented by a different attorney (who is also their counsel in this court), the consumers filed a motion for reconsideration, contending that the "tax-on-tax" effect was the result of an incorrect interpretation of the GRT statute, and that it provided the District government (rather than the utilities) with funds to which the District was not entitled. The Commission denied the petition, holding that the consumers' dispute was really with the GRT law, and not with its construction. The consumers have asked this court to review the Commission's decision.

II.

The question which the consumers have presented to us in their petition for review comes to us with some unusual wrinkles. First, given the procedural history of this controversy and the consumers' initial focus on a completely different (and now abandoned) issue, there is some question whether they have properly preserved a point which they unambiguously presented for the first time in their motion for reconsideration. Second, it is unusual for a question which appears to be one of first impression with respect to the District of Columbia tax laws to be litigated before the Public Service Commission, an agency whose expertise lies in other areas. Finally, we have received no substantive brief from the District of Columbia, which is the real party in interest among the consumers' adversaries. *fn2 Nevertheless, we assume without deciding that the consumers' contentions are properly before us, and we therefore address the merits.

Section 47-2501 (a)(1), as the consumers point out, governs gross receipts "from the sale of public utility services and commodities . . . " According to the consumers, taxes collected by the utilities are not ...


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