Appeal from the Order of the Board of Finance and Revenue in case of In Re: Appeal of Axe Science Corporation from denial of Petition for Resettlement of 1968 Pennsylvania Foreign Franchise Tax. Appeal transferred from the Court of Common Pleas of Dauphin County to the Commonwealth Court of Pennsylvania, September 1, 1970.
David H. Rosenbluth, with him Louis G. Rigby and Stradley, Ronon, Stevens & Young, Of Counsel, for appellant.
George W. Keitel, Deputy Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. President Judge Bowman dissents.
The appellant is a Delaware corporation, taxable in Pennsylvania as a regulated investment company, and it paid a foreign franchise tax for the calendar year ending December 31, 1968 at the rate of five mills. The Department of Revenue (Department) settled the tax at a six mills rate, however, and refused the appellant's request for a resettlement. This refusal was affirmed by the Board of Finance and Revenue (Board), and it is this action which is now appealed to this Court.
There appears to be only one question at issue: Did the Act of December 29, 1967, P.L. 896 (Act No. 406), which amended the Pennsylvania Capital Stock and Franchise Tax Act of June 1, 1889, P.L. 420, § 21, as amended, 72 P.S. § 1871 (Franchise Tax Act), raise the tax rate applicable to the appellant for the calendar year of 1968 from five mills to six mills or not?
It should be noted that subsequent legislation*fn1 again amended the tax rate for the period following December 31, 1968, and its terms will be discussed later for
their bearing upon the question here involved. We are concerned here, however, only with tax due and payable for 1968.
The purpose of Act No. 406, as stated in its title, was "increasing the tentative and annual capital stock and franchise tax on domestic and foreign corporations. . . ." In the text of the Act as finally approved by the General Assembly and signed by the Governor, the tax rate listed throughout Section 21, and specifically in Section 21(f), was changed from five mills to six mills in each instance where a rate was specified except in paragraph 2 of the subsection where the rate remained unchanged at five mills. Noting what seemed to him to be an inadverent discrepancy, the Secretary of the Commonwealth attempted to correct the text of the legislation when he prepared it for printing by changing the stated tax rate in the second paragraph of this subsection from five mills to six mills, thus making it the same as that provided elsewhere in Section 21(f). The so-called "slip copy" of the Act was so corrected and submitted to the Director of the Legislative Reference Bureau, the Attorney General, the Speaker of the State House of Representatives, and the President Pro Tempore of the State Senate, for their approval.*fn2
The facts as stipulated by the parties do not indicate the reaction of the Attorney General, the Speaker, or the President Pro Tempore, but they do indicate that the Director of the Legislative Reference Bureau ...