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PHILADELPHIA v. LITVIN (11/16/67)

decided: November 16, 1967.

PHILADELPHIA, APPELLANT,
v.
LITVIN



Appeal from order of County Court of Philadelphia, June T., 1962, No. 6911-A, in case of City of Philadelphia v. Albert Litvin et al.

COUNSEL

Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Richard B. Pearl, Assistant City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellant.

Edward Unterberger, for appellee.

Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., absent). Opinion by Hoffman, J.

Author: Hoffman

[ 211 Pa. Super. Page 206]

Albert Litvin and Kelman Litvin were partners in the building contracting business. Since their business was conducted in Philadelphia, they were required to pay Mercantile License Taxes to the City.*fn1 The City alleges that they failed to file the necessary return or

[ 211 Pa. Super. Page 207]

    pay their taxes for the years 1954 and 1955. The tax and return for 1954 were due on or before March 15, 1954. For 1955, the tax and return were due on or before May 15, 1955.

The assessment for the 1954 taxes was based upon an audit by the City of taxpayer's records made on December 23, 1954. The assessment for 1955 was based on an examination made in January, 1961.

On July 16, 1962, the City instituted suit against both appellees but only pursued the action against Albert Litvin, because he alone conducted the business after April 1, 1954. The taxpayer did not present any evidence to indicate that a return or report of any kind was filed for the years 1954 and 1955. The court below, after hearing the evidence, found for the taxpayer as to the 1954 taxes on the ground that any claim for those years was barred by the statute of limitations. The court held, however, that the taxpayer was liable to the City for 1955 taxes due in the amount of $215.44, but that no interest or penalties should be assessed thereon. This appeal followed.

The City contends that its claim for the 1954 tax was not barred by the statute of limitations. The statute of limitations on actions brought by the City to collect its taxes is contained in ยง 19-509 of the Philadelphia Code. That Ordinance provides in part that: "Any suit to recover any tax imposed by this Title, other than real estate and personal property taxes, shall be begun within 6 years after such tax is due or within 6 years after a return or a report has been filed, whichever date is later; but this limitation shall not apply in the following cases:

"(a) where the taxpayer has failed to file the return or report required under the provisions of this Title; . . ."

As a general rule, no statute of limitations runs against the right of a sovereign ...


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