Original jurisdiction in case of Wyoming Sand and Stone Company v. Department of Revenue, Department of the Auditor General and Treasury Department of the Commonwealth of Pennsylvania.
Albert J. Tomalis, Jr., with him Metzger, Hafer, Keefer, Thomas and Wood, for plaintiff.
Vincent X. Yakowicz, Solicitor General, with him, Lawrence J. Rosen, Chief, Appeals Section, for defendant, Department of Revenue.
Donald J. Murphy, Deputy Attorney General, with him Jeffrey G. Cokin, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant, Treasury Department.
Robert P. Meehan, Deputy Counsel, with him Frank P. Lawley, Jr., Chief Counsel, for defendant, Department of the Auditor General.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
[ 24 Pa. Commw. Page 368]
This matter comes within the original jurisdiction of this Court. It was commenced by the filing of a complaint in mandamus by Wyoming Sand and Stone Company on July 24, 1975, against the Department of Revenue, the Department of the Auditor General and the Treasury Department. Preliminary objections were filed by the defendants which we will sustain.
During the course of the operation of its business from 1971 through 1973, Wyoming paid to the Commonwealth certain sales and use taxes imposed by the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7101 et seq. On May 24, 1974, Wyoming filed a petition for a refund with the Board of Review of the Department of Revenue pursuant to Section 253(a) of the Code, 72 P.S. § 7253(a), seeking a refund in the amount of $121,666.93 for taxes erroneously remitted to the Commonwealth. After an audit and hearing, the Board on May 23, 1975, issued an order approving the findings and conclusions of the Board's hearing examiner and granting a refund in the amount of $91,570.26.*fn1
During the above proceeding, the Bureau of Sales and Use Tax, on April 8, 1974, issued an assessment against Wyoming for taxes in the amount of $103,050.41. On September 23, 1974, Wyoming filed a petition for reassessment with the Board and, on September 22, 1975, the Board reduced the alleged liability to $53,125.70, plus interest.
Despite the refund order of the Board the Department of Revenue did not pay the refund, but rather advised Wyoming by letter on May 30, 1975, that it had
[ 24 Pa. Commw. Page 369]
applied the refund as a deduction against the sales and use tax assessment then pending. On June 23, 1975, Wyoming notified the Department of Revenue that its retention of the refund of $91,570.26 was unlawful and demanded payment. On July 14, 1975, the Secretary of Revenue ...