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COMMONWEALTH PENNSYLVANIA v. J & R EQUIPMENT RENTAL CO. (02/10/77)

decided: February 10, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
J & R EQUIPMENT RENTAL CO., INC., APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. FIVE-R EXCAVATING, INC., APPELLANT



Appeals from the Orders of the Board of Finance and Revenue in cases of Petition of J & R Equipment Rental Co., Inc. and Petition of Five-R Excavating, Inc., Nos. RST-880 and RST-881.

COUNSEL

Ronald D. Morelli, with him W. Reid Lowe, and Meyer, Unkovic & Scott, for appellants.

Paul S. Roeder, Deputy Attorney General, for appellee.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 28 Pa. Commw. Page 559]

J & R Equipment Rental Company, Inc. (J & R) is a Pennsylvania corporation engaged in the business of leasing heavy construction equipment. Five-R Excavating,

[ 28 Pa. Commw. Page 560]

Inc. (Five-R) is a Pennsylvania corporation which leases heavy construction equipment from J & R. Both J & R and Five-R were audited by the Department of Revenue, Bureau of Sales and Use Tax (Bureau) for the period of January 1, 1970 through September 30, 1973. As a result of these audits, the Bureau assessed a sales tax of $13,329.58 plus interest and penalty on J & R and a use tax of $13,353.31 plus interest and penalty on Five-R.

Both parties petitioned the Bureau for reassessment pursuant to Section 232 of the Tax Reform Code of 1971,*fn1 72 P.S. § 7232. The Bureau sustained the assessments but abated the penalties and ordered that payment by Five-R of its use tax assessment would result in the sales tax assessment against J & R being stricken in its entirety. The Bureau sent copies of these decisions and orders to both parties by certified mail on February 14, 1975, and these were received by the parties on February 15, 1975. J & R and Five-R appealed to the Board of Finance and Revenue (Board) pursuant to Section 234 of the Code, 72 P.S. § 7234, by petitions for review mailed on April 14, 1975. Both petitions were received on April 16, 1975 by the Board, which subsequently refused them for lack of jurisdiction because they were not filed within the time required by Section 234 of the Code. The appeals of J & R and Five-R from these decisions of the Board have been consolidated in this Court.

Section 234 of the Code, 72 P.S. § 7234, provides 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

[ 28 Pa. Commw. Page 561]

    and Revenue to review such decision. ...


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