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FISHER CONTROLS COMPANY v. COMMONWEALTH PENNSYLVANIA (03/31/76)

decided: March 31, 1976.

FISHER CONTROLS COMPANY, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE. (2 CASES)



Appeals from the Orders of the Board of Finance and Revenue in case of Petitions of Fisher Controls Company, Inc., Docket Nos. R-25774 (1972) and R-25796 (1972).

COUNSEL

Sherill T. Moyer, with him Robert L. Weldon, Frank A. Sinon, and Rhoads, Sinon & Reader, for appellant.

R. Scott Shearer, Deputy Attorney General, for appellee.

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

Author: Bowman

[ 24 Pa. Commw. Page 200]

Fisher Governor Company (Governor) and Fisher Controls Company, Inc. (Controls) have filed de novo appeals from adverse decisions of the Board of Finance and Revenue. The parties have agreed to a trial without jury and have stipulated all pertinent facts.

The focus of this controversy lies in the Pennsylvania Corporate Net Income Tax and its application to appellants for the respective tax periods of January 1, 1969 through August 12, 1969 (Governor), and August 13, 1969 through December 27, 1969 (Controls). More precisely, appellants contend that their net incomes for the

[ 24 Pa. Commw. Page 201]

    relevant periods should have been subjected to a tax rate of 7% rather than the 12% rate advocated and applied by the Commonwealth. Appellants have attempted to buttress their contention by reference both to the appropriate statutory provisions and to certain constitutional prescriptions which they deem violated by imposition of the higher rate.

The uninterrupted chronological sequence between the termination date of Governor's relevant tax period and the inception date of Controls' is not coincidental. On August 12, 1969, Governor's assets were absorbed into the Monsanto Corporation and, simultaneously therewith, the same assets were transferred to a newly formed corporation, Controls. While the corporate taxpayers have repeatedly characterized themselves as a single continuing corporate entity, we believe such a position is so meritless that it does not warrant a detailed response from this Court. Governor legally expired on August 12, 1969, and the subsequent appearance of its assets within the corporate framework of Controls was simply the result of a transplant, and could not give continued vitality to Governor's legal existence.

Prior to December 31, 1969, appellants properly assumed that their net incomes received and accrued during 1969 would be subjected to a tax rate of 7 1/2%*fn1 under the Pennsylvania Corporate Net Income Tax.*fn2 However, on that date, the Act of 1967 was amended to read as follows:

"Every corporation shall be subject to, and shall pay for the privilege of doing business in this Commonwealth . . . a ...


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