Appeal from the Order of the Board of Finance and Revenue in case of Petition of Fluoro-Plastics, Inc., No. R-1421, dated March 31, 1976.
C. George Milner, for appellant.
Joseph F. Lynch, Deputy Attorney General, with him Donald J. Murphy, Deputy Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
[ 28 Pa. Commw. Page 521]
Fluoro-Plastics, Inc. has appealed from the refusal by the Board of Finance and Revenue of the prayer of its Petition for Review of a settlement by the Department
[ 28 Pa. Commw. Page 522]
of Revenue of its corporate net income tax for a fiscal year ended February 28, 1974. The settlement determined that Fluoro-Plastics, Inc. was subject to additional tax liability in the amount of $1285.93.
Fluoro-Plastics, Inc. attacks as unconstitutional Section 1 of the Act of March 16, 1970, P.L. 180, as amended, 72 P.S. § 3385. The statute is pertinently as follows:
(a) Notwithstanding the provisions of any State tax law to the contrary which requires taxpayers to make payment of tentative tax, including . . . corporate net income . . . or other similar tax law requiring payment of tentative tax, such taxpayers, commencing with the calendar year 1970 and fiscal years beginning during the calendar year 1970 and each taxable year thereafter, on or before the thirtieth day of April for calendar year taxpayers, and on or before the end of the fourth month after the close of its previous fiscal year for fiscal year taxpayers, shall pay on account of the tax due for the current year not less than ninety per cent of the amount of said tax; the said amount to be computed by applying the current tax rate to ninety per cent of such tax base from the immediate prior year as may be applicable with respect to the tax being reported; Provided, however, That . . . said payment may at the taxpayer's election be computed by applying the current tax rate to ninety per cent of the taxable income . . . received or accrued by the taxpayer during the first three months of the current calendar or fiscal year period annualized, which amount resulting from said annualization shall not be less than ninety per cent of the tax basis as is actually reported in the annual
[ 28 Pa. Commw. Page 523]
report for the current calendar or fiscal year. The remaining portion of the tax due shall be paid upon the date the taxpayer's annual report is required to be made under the applicable tax statute.
(b) Should it subsequently be determined that the amount of the tentative tax was understated by more than five per cent, there shall be added to the tax determined to be due an additional ten per cent of the understatement and said percentage addition to the understatement shall be deemed an ...