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ANASTASI BROTHERS CORPORATION v. COMMONWEALTH (01/24/74)

decided: January 24, 1974.

ANASTASI BROTHERS CORPORATION, APPELLANT,
v.
COMMONWEALTH



Appeal from order of Commonwealth Court, No. 545 C.D. 1972, in case of Anastasi Brothers Corporation v. Commonwealth of Pennsylvania, Board of Finance and Revenue.

COUNSEL

Herbert L. Olivieri, for appellant.

Guy J. DePasquale, Assistant Attorney General, with him Eugene J. Anastasio, Deputy Attorney General, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Manderino concurs in the result.

Author: Roberts

[ 455 Pa. Page 129]

Anastasi Brothers Corporation,*fn1 filed in the Bureau of Taxes for Education a petition for refund of taxes paid. Denial of the petition was appealed to the Board of Finance and Revenue which denied the requested relief. The Commonwealth Court without a jury heard the appeal on stipulated facts. That court dismissed the appeal*fn2 and we affirm.*fn3

The refund sought, $2,104.35, represents tax paid to Spring-Lock Scaffolding Company, on the purchase of personal property to be used by appellant in its construction business.*fn4 The substance of Anastasi's claim is that the personal property was purchased for use outside the Commonwealth and thus neither the sale nor the use is taxable in Pennsylvania. See Commonwealth v. John W. Thompson Co., 450 Pa. 5, 297 A.2d 109 (1972). We need not, however, reach this question since we conclude that the Commonwealth Court properly denied relief because appellant failed to state an issue cognizable on appeal.

Procedure in tax appeals is prescribed by statute.*fn5 Section 1104 of The Fiscal Code mandates that "appeals

[ 455 Pa. Page 130]

    taken hereunder shall be hearings de novo . . . and no questions shall be raised which are not included in the specification of objections filed . . . ." In the Commonwealth Court, the parties filed a "Stipulation of Facts and Agreement to Try Without Jury" which among other things reserved "the right to introduce additional evidence not inconsistent herewith into the record at the time of trial . . . ." The stipulation did not incorporate, expressly or impliedly, the records of the prior administrative proceedings. Appellant assumed that all testimony and documentary evidence presented to the administrative agencies automatically became part of the record in the Commonwealth Court. This assumption was erroneous. Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 368-70, 214 A.2d 203, 206 (1965).

Consequently appellant in its stipulation of facts failed to allege that the property was purchased for use outside the Commonwealth. This allegation, the foundation upon which appellant's entire theory of recovery is built, was not in the record before the court nor, as required by section 1104, in the specification of objections. Therefore the appeal was correctly dismissed.

It is argued, however, that the stipulation's reservation of the right to introduce additional evidence permits appellant to present testimony or documents indicating the destination of the purchased items. While this interpretation may, in fact, be correct, it fails to furnish any basis for disturbing the Commonwealth Court's adjudication. The present record reflects no effort to introduce any additional evidence until after the conclusion of the Commonwealth Court hearing. The refusal of the court to reopen the record for submission of additional ...


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