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PHILIP B. ROBESON AND FURMAN A. DEMARIS v. PHILADELPHIA TAX REVIEW BOARD (05/09/74)

decided: May 9, 1974.

PHILIP B. ROBESON AND FURMAN A. DEMARIS, EXECUTORS OF THE ESTATE OF MARIE K. ROBESON, DEC'D AND PAULA T. ROSENFELD, APPELLANTS,
v.
PHILADELPHIA TAX REVIEW BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Philip B. Robeson and Furman A. DeMaris, Executors of the Estate of Marie K. Robeson, Deceased, and Paul T. Rosenfeld v. Tax Review Board, No. 1760 November Term, 1971.

COUNSEL

John O. J. Shellenberger, 3rd, with him David H. Rosenbluth, and, of counsel, Stradley, Ronon, Stevens & Young, for appellants.

Wanda P. Chocallo, Assistant City Solicitor, with her Martin Weinberg, City Solicitor, for appellee.

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

Author: Rogers

[ 13 Pa. Commw. Page 514]

The appellants, Marie K. Robeson*fn1 and Paula T. Rosenfeld, are residents of New Jersey who own a rental property in Philadelphia. The tax collection authorities of the City of Philadelphia assessed them in the amount of $471.15 for allegedly unpaid Mercantile License Taxes*fn2 for the years 1953 through 1968, and in the amount of $1802.32 on account of Wage and Net Profit Taxes*fn3 allegedly due for the years 1940 through 1967. The appellants filed a petition to review these assessments with the Tax Review Board, a

[ 13 Pa. Commw. Page 515]

    departmental board created by Section 3-100(f) of the Philadelphia Home Rule Charter.

The issue raised by the petition for review was that of whether the manner of the appellants' acquisition of the property and their activities with regard to it thereafter were such as to subject them to the taxing ordinances. The appellants, of course, contended that they were not taxable because their circumstances were similar to those in Price v. Tax Review Board, 409 Pa. 479, 187 A.2d 280 (1963). The city contended that the circumstances were more nearly similar to those in Coventry Hills, Inc. v. Philadelphia Tax Review Board, 437 Pa. 259, 263 A.2d 348 (1970); Kungsgaten, Inc. v. Philadelphia, 422 Pa. 209, 220 A.2d 803 (1966); Tax Review Board v. Brine Corporation, 414 Pa. 488, 200 A.2d 883 (1964); and Philadelphia Tax Review Board v. Weiner, 211 Pa. Superior Ct. 229, 235 A.2d 184 (1967), and that, therefore the appellants were subject to tax. We need not decide this issue for the reasons hereafter set out.

The Tax Review Board conducted a hearing in the matter of the appellants' petition for review on July 1, 1969, at which time evidence was received relevant to the above stated issue. At this hearing, an assistant city solicitor pointed out to the Tax Review Board that, at the request of counsel for the appellants, a deputy city solicitor had ruled that the appellants were subject to the taxes and that a copy of this letter had been forwarded to the Tax Review Board. Nevertheless, the Tax Review Board on May 19, 1970 granted the petition for review.*fn4 The city did nothing further until September 1, 1970, on which date a deputy city solicitor sent a letter to the Tax Review Board, the full text of which

[ 13 Pa. Commw. Page 516]

    is as follows: "The City requests a rehearing in the above matters [one being this case] due to the fact that the Tax Review Board failed to observe a prior written ruling of the City Solicitor's Office."

Counsel for the taxpayers opposed the request on several grounds one of which was the delay of the city in seeking a rehearing. The Tax Review Board granted the city's request and conducted a hearing which consisted of colloquy at which counsel for the appellants reiterated his position that the application for rehearing was untimely and an assistant city solicitor contended that the Tax Review Board had no power to make its earlier decision contrary to an opinion of a deputy city solicitor. On August 31, 1971, more than fifteen months after it had decided the matter for the ...


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