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RABY v. BOARD FINANCE AND REVENUE. (01/02/62)

January 2, 1962

RABY, APPELLANT,
v.
BOARD OF FINANCE AND REVENUE.



Appeal, No. 40, May T., 1961, from order of Board of Finance and Revenue, January 26, 1961, in case of Maude E. Raby and William Stuempfig, trustees, et al. v. The Board of Finance and Revenue. Appeal dismissed.

COUNSEL

Lloyd A. Good, Jr., with him Roper & Caldwell, for appellants.

Edward Friedman, Deputy Attorney General, with him David Stahl, Attorney General, for Board of Finance and Revenue, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen and Eagen, JJ.

Author: Musmanno

[ 405 Pa. Page 496]

OPINION BY MR. JUSTICE MUSMANNO.

The appellants in this case - Maude E. Raby and William Stuempfig, Trustees, and The Provident Tradesmen Bank and Trust Co., Substituted Co-Trustee under the will of George Stuempfig, deceased - petitioned the Board of Finance and Revenue of the Commonwealth of Pennsylvania for a refund of Realty

[ 405 Pa. Page 497]

Transfer Taxes paid to the Commonwealth through the Recorder of Deeds of Philadelphia County. The Board refused the refund and this appeal followed. The circumstances which gave rise to the litigation are briefly stated.

On March 29, 1956, the Nibur Corporation, a Pennsylvania Corporation, obtained two properties (one located at 164-166 West Chelten Avenue and the other 159 Maplewood Avenue, Philadelphia) through conveyances which reserved in the grantors certain ground rents as security for payment of the balance of the purchase prices involved.

On October 16, 1958, the Nibur Corporation conveyed these properties to the appellants for the sum of $180,000. When the appellants presented their deed for recording in the office of the Recorder of Deeds in Philadelphia, they affixed Pennsylvania Realty Transfer Tax stamps amounting to $1,800, this being one per cent of the purchase price. The Recorder refused to accept the deed unless the appellants affixed an additional $2,550 of stamps, this amounting to one per cent of the redemption value of the two ground rents mentioned.

The appellants purchased the stamps under protest and then filed with the Board of Finance and Revenue, as already stated, a petition for refund of the $2,550, asserting that the imposition of this additional tax violated the Realty Transfer Tax Regulations of September 3, 1957, under the Act of December 27, 1951, P.L. 1742, as amended, which provides in Article III, subparagraph G: "... In the case of an assignment of the interest of the tenant or the ground landlord, the tax is based upon the price paid by the respective assignee of such tenant or landlord..."

The petitioners asserted further that the Act of December 27, 1951, P.L. 1742, as amended, does not require a tax on ...


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