Appeal No. 21, May T., 1953, from order of Court of Common Pleas of Dauphin County, 1951, Commonwealth Docket No. 263, in case of Calvert Distillers Corporation v. The Board of Finance and Revenue. Order affirmed.
William S. Bailey, with him John B. Pearson and Storey, Bailey & Rupp, for appellant.
Edward Friedman, Deputy Attorney General, with him Ralph S. Snyder, Deputy Attorney General and Frank F. Truscott, Attorney General, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The question involved in this case falls within a very narrow compass. Its solution depends upon the construction to be given the statute which confers the right to a refund of taxes erroneously paid the Commonwealth as applied to the undisputed facts of the case.
The plaintiff corporation was organized and incorporated under the laws of Maryland for the purpose of distilling liquors and selling them at wholesale and has been for a number of years registered to do business in Pennsylvania. For the fiscal year ending July 31, 1946, the Commonwealth assessed against the plaintiff a corporate franchise tax for which it was not legally liable. The assessment was made, however, because the plaintiff itself had erroneously filed with the Commonwealth a franchise tax report instead of a distillers capital stock tax report to which latter tax it was properly subject. The franchise tax report which the plaintiff filed for the fiscal year in question was in blank and showed an estimated tax of $1500 due which the plaintiff paid forthwith. A few months later, the plaintiff supplemented its blank franchise tax report with a detailed report showing a total tax due of $2579.53 and, at the same time, paid the balance of the tax which it thus admitted to be due. Approximately a year later, the tax for the year in question was settled by the Commonwealth's fiscal officers at $4742.63. The plaintiff then petitioned for a resettlement
of the tax which was resettled at $4426.45 on April 26, 1949. The petition for resettlement did not question the propriety of the imposition of a franchise tax upon the plaintiff but merely the valuation placed by the Commonwealth's fiscal officers on the stock of the corporation. On May 6, 1949, the plaintiff paid the additional tax in the sum of $1846.92, as determined by the resettlement and, on January 9, 1951, filed with the Board of Finance and Revenue its claim for a refund in the sum of 4393.38, being the difference between the franchise tax of $4426.45, which it had paid, and a tax of $33.07 for which it was liable under the Distillers' Capital Stock Tax Act of July 15, 1897, P.L. 292, 72 PS § 1872. The Board of Finance and Revenue awarded the plaintiff a refund, in the nature of a credit, of $1846.92 which was the only sum paid by the plaintiff within two years immediately preceding the filing of its claim for refund.
The plaintiff thereupon instituted the action in mandamus, here involved, in an effort to compel the Board of Finance and Revenue to award it a refund for the full amount of the taxes which it had paid. The defendant filed preliminary objections to the complaint. After argument, the court below sustained the objections and entered an order dismissing the complaint. This appeal by the plaintiff followed.
The conclusion of the learned court below was inescapable. The plain language of the Pennsylvania statute which authorizes the refund of taxes paid mistakenly, improperly or even inadvertently did not admit of any other result. A voluntary payment of taxes can be subsequently recovered by a taxpayer only if and as a statute so provides. In Philadelphia & Reading Coal & Iron Co. v. Tamaqua Borough School District, ...