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COMMONWEALTH PENNSYLVANIA v. NIEMEYER OLDSMOBILE (03/12/74)

decided: March 12, 1974.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF REVENUE, APPELLANT,
v.
NIEMEYER OLDSMOBILE, INC., APPELLEE



Appeal from the Order of the Board of Finance and Revenue in case of In Re: Niemeyer Oldsmobile, Inc., No. R-26527.

COUNSEL

Guy J. DePasquale, Assistant Attorney General, for appellant.

Barton F. Niemeyer, President, Niemeyer Oldsmobile, Inc., for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Dissenting Opinion by Judge Kramer.

Author: Mencer

[ 12 Pa. Commw. Page 390]

Niemeyer Oldsmobile, Inc. (Niemeyer) is a Pennsylvania corporation and operates an automobile dealership near Elizabeth, Pennsylvania. Niemeyer was issued license number 02-35146 by the Department of Revenue for the purpose of collecting and remitting Pennsylvania sales and use taxes.

Pursuant to Section 230 of the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6 (Code), 72 P.S. § 7230, the Bureau of Taxes for Education, Department of Revenue, conducted an audit of Niemeyer's books and records for the period of January 1, 1969 to December 31, 1972. As a result of that audit, a sales and use tax assessment in the amount of $1,655.92 was imposed on Niemeyer.

Niemeyer petitioned the Department of Revenue for a reassessment.*fn1 On September 29, 1972, the Department of Revenue made, and mailed to Niemeyer, a reassessment which concluded that the net amount due by Niemeyer was $1,627.02. On November 27, 1972, Niemeyer mailed to the Department of Revenue, Bureau of Taxes for Education, Board of Finance and Revenue, 1846 Brookwood Street, Harrisburg, Pennsylvania, a petition for review of assessment.*fn2 This petition was received by the Bureau of Taxes for Education on November 29, 1972 and was then forwarded to the Board of Finance and Revenue where it was received on December 1, 1972. The Board of Finance and Revenue, two members dissenting, entertained the petition and considered it on its merits and reduced

[ 12 Pa. Commw. Page 391]

    the assessment to a net amount due of $1,009.13, plus appropriate interest.

The Department of Revenue, contending that the Board of Finance and Revenue committed an error of law in accepting jurisdiction of Niemeyer's petition for review, filed this appeal.*fn3 We must sustain the appeal and reverse.

Section 234 of the Code, 72 P.S. § 7234, reads in pertinent part: "Within sixty days after the date of mailing of notice by the department of the decision on any petition for reassessment filed with it, the person against whom such assessment was made may, by petition, request the Board of Finance and Revenue to review such decision. . . . Every petition for review filed hereunder shall state specifically the reasons on which the petitioner relies. . . ." (Emphasis supplied.)

In Commonwealth v. Lukens Steel Company, 402 Pa. 304, 308, 167 A.2d 142, 144 (1961), the Supreme Court quoted, with approval, Mr. Justice Kephart in East Lake Road and Payne Ave., 309 Pa. 327, 163 A. 683 (1932), as follows: "'We have held as a general rule that where an act of assembly commands an act to be performed within a certain time the words employed are mandatory. It is ...


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