News Article - November 02, 2009


  Tinicum Township has filed a petition for the entire Third Circuit Court of Appeals to rehear its argument about taxing flights landing at Philadelphia International Airport, as three of the airport’s four landing strips actually lay within the township’s borders. A three-judge panel of the federal court shot down Tinicum’s attempted tax on flights last month, upholding an earlier decision from the U.S. Department of Transportation. But the court noted the decision was precedential. Figuring that might merit more consideration, Tinicum’s attorney, Francis G.X. Pileggi, has filed for a rehearing before all 12 sitting judges of the court. “That gives it a lot more significance and has many more repercussions than the average, run-of-the-mill case,” he said.

   Until May 2007, the township and City of Philadelphia, which owns and operates the airport, had an agreement in place that netted Tinicum 3 cents per 1,000 pounds of landing weight arriving at the airport. The agreement netted Tinicum, the county and Interboro School District up to $1.1 million annually. When the two sides could not reach a new agreement in 2007, however, Tinicum attempted to recoup that cash with a taxing ordinance on landing flights. Airline industry organizations filed a complaint with the Department of Transportation claiming the ordinance violated the Anti-Head Tax Act, which prevents local taxing authorities from placing an unreasonable burden on interstate air transportation. The Department of Transportation, charged with administering the Anti-Head Tax Act, agreed with the industry organizations and the township appealed the decision to the Third Circuit.

   Pileggi argued in that brief that the Anti-Head Tax Act very well might have originally banned taxes such as those imposed in Tinicum’s ordinance. But, he said, a 1994 recodification changed the meaning of the act when Congress changed the language — despite a provision that the recodification “may not be construed as making a substantive change in the laws replaced.” The new language provided that “a state or political subdivision of a state may levy or collect a tax on or related to a flight of a commercial aircraft or an activity or service on the aircraft only if the aircraft takes off or lands in the state or political subdivision as part of the flight.” But the panel of judges found the phrase “only if” provides merely a necessary condition, not a sufficient one.

   “For example, making the playoffs is a necessary condition for winning the Major League Baseball World Series because a team cannot win the World Series if it does not make the playoffs,” the court explained in its decision. “A team may win the World Series only if it makes the playoffs. But a team’s meeting the necessary conditions of making the playoffs does not guarantee that the team will win the World Series.” In this new petition, Pileggi argued the court erred by focusing only on those two words rather than any reasoning put forward by the parties. Pileggi further asserted the court had erred by not affording both parties an opportunity to brief or present evidence on the issue. He pointed to a prior Third Circuit ruling that found a district court had erred when it did essentially the same thing. Calls to the Department of Transportation were not returned Thursday. Pileggi said the chances are slim the court will agree to hear the appeal, but it’s worth a shot due to the potential nationwide impact. “There’s a lot more to it,” he said. “I guess we’ll find out soon enough if the court agrees with us.”

Source - Delco Times