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COMMONWEALTH v. HITZELBERGER (11/09/65)

decided: November 9, 1965.

COMMONWEALTH, APPELLANT,
v.
HITZELBERGER



Appeal from order of Court of Common Pleas of Delaware County, No. 1568 of 1964, in case of Commonwealth of Pennsylvania, Department of Revenue, Bureau of County Collections v. Margaret J. Hitzelberger, executrix under will of Anna M. Fox, deceased, James R. Hitzelberger and Margaret J. Hitzelberger, his wife, et al.

COUNSEL

Vincent X. Yakowicz, Deputy Attorney General, with him Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.

Edward F. Muller, Jr., for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 419 Pa. Page 355]

This is an appeal by the Commonwealth of Pennsylvania from an order of the Court of Common Pleas of Delaware County making absolute a taxpayers' rule to show cause why a Commonwealth lien for an unpaid realty transfer tax should not be stricken from the court records in Delaware County.

Anna M. Fox, a Delaware County resident, died, testate, on March 13, 1961. Margaret Hitzelberger was appointed executrix of her estate. Under decedent's will, certain Delaware County realty became a part of her residuary estate which she directed be divided equally among four named persons, one of whom was Charles Fox. The will further provided that, should any of the four named persons predecease decedent, the share of the person so dying should pass to the survivors. One of said persons predeceased decedent and, therefore, under the will, said person's share, e.g., one-fourth, passed to the three survivors. Upon decedent's death and, by agreement among the three survivors, the executrix conveyed the subject Delaware

[ 419 Pa. Page 356]

County realty to Charles Fox and, upon this conveyance, no realty transfer tax was paid the Commonwealth.

Acting under the authority of the Realty Transfer Tax Act,*fn1 and regulations promulgated thereunder, the Commonwealth made a determination of the tax due on this conveyance of realty. Since Charles Fox was entitled, under decedent's will and in line with the circumstances existing at the time of decedent's death, to one-third of this realty, the Commonwealth did not tax such one-third interest but only levied a tax on the two-thirds interest which, devised by the will to the two other named persons, had been conveyed by the executrix' deed to Charles Fox.

The Commonwealth's determination of the tax was duly served upon the parties to the conveyance (the taxpayers) and they were advised, by written instructions, of their rights and remedies and the time within which a petition for redetermination of the tax had to be filed under the Realty Transfer Tax Act and the Commonwealth's regulations thereunder. The taxpayers ignored the Commonwealth's determination of the tax and did not file a petition for a redetermination of the tax. On November 12, 1963, the Commonwealth notified the taxpayers of its intention to file a tax lien in Delaware County against the realty but such notice was also ignored.

On January 30, 1964, the Commonwealth filed its lien for the unpaid realty transfer tax in Delaware County and, by certified mail, advised the taxpayers of such action but the taxpayers made no response thereto nor did they take any action until October 1, 1964, at which time they filed in the ...


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