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GRAYBILL & BUSHONG v. BOARD FINANCE AND REVENUE. (03/17/64)

March 17, 1964

GRAYBILL & BUSHONG, INC., APPELLANT,
v.
BOARD OF FINANCE AND REVENUE.



Appeal, No. 1, May T., 1964, from judgment of Court of Common Pleas of Dauphin County, No. 360 Commonwealth Docket, 1962, in case of Graybill & Bushong, Inc. v. The Board of Finance and Revenue of the Commonwealth of Pennsylvania. Judgment affirmed.

COUNSEL

Howell C. Mette, with him Frank A. Sinon, and Rhoads, Sinon & Reader, for appellant.

Edward T. Baker, Deputy Attorney General, with him Walter E. Alessandroni, Attorney General, for Board of Finance and Revenue, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Roberts, JJ.

Author: Cohen

[ 414 Pa. Page 71]

OPINION BY MR. JUSTICE COHEN

Graybill & Bushong, Inc. (appellant) is in the business of producing and selling animal and poultry feed. In connection with its activities it paid sales and use tax to its suppliers of electric service and machinery until August 23, 1961, when the Governor approved Act 491, P.L. 1092, of the 1961 Session of the General Assembly. Under this Act there was excluded from tax items used in processing operations, and "processing" was defined to include "the preparation of animal feed or poultry feed for sale." Furthermore, the exclusion was made retroactive to March 7, 1956.

Having paid tax prior to passage of this Act, appellant was limited to requesting refunds in order to benefit from the retroactive feature. Therefore, on September 15, 1961, it filed with the Board of Finance and Revenue a petition for refund of sales and use tax

[ 414 Pa. Page 72]

    totaling $3,179.82, part of the amount it had paid during the preceding two years. The petition was filed pursuant to § 503 of The Fiscal Code which imposed a general two year limitation on refunds.

The Board of Finance and Revenue, on May 4, 1962, refused appellant's petition on the ground that the Board lacked jurisdiction to entertain it. The order of refusal stated that appellant had not met the requirements of § 553 of the Selective Sales and Use Tax Act of 1956, P.L. (1955) 1228, as amended, 72 P.S. § 3403-553, which limited refunds of sales and use taxes to amounts paid within eighteen months of the date of filing a refund petition and requires the petition for refund to be filed with the Department of Revenue. Obviously, it was the board's view that this specific refund provision superseded the general refund provisions of The Fiscal Code with regard to sales and use taxes both as to limitation and procedure.

Appellant then filed a complaint in mandamus against the board asking that the court command the board to entertain its petition for refund. After the board filed preliminary objections, the Court of Common Pleas of Dauphin County decided that § 553 of the Selective Sales and Use Tax Act had superseded § 503 of The Fiscal Code in this respect and dismissed the complaint. This appeal followed.

Initially, the board argues that appellant has followed the wrong remedy. Its position is based on § 503(e) of The Fiscal Code which states that the action of the board on all petitions for refund shall be final. Accordingly, says the board, the only review of its actions on ...


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