Appeal from the Order of the Board of Finance and Revenue in case of In Re: Meadville Co-operative Association, No. RST-229.
Lloyd R. Persun, with him Shearer, Mette & Woodside, for appellant.
Paul S. Roeder, Deputy Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.
[ 29 Pa. Commw. Page 259]
This is an appeal from a determination of the Board of Finance and Revenue (Board) denying Meadville Co-operative Association's (appellant) petition for refund of sales and use taxes paid during the years 1969 and 1970. The facts as stipulated may be briefly related as follows.
Appellant is a co-operative agricultural association as defined by the Co-operative Agricultural Association Corporate Net Income Tax Act (Act), Act of May 23, 1945, P.L. 893, 72 P.S. § 3420-21 et seq., and for the years 1968 through 1973 duly paid the tax levied by the Act. During the years 1969-1973, appellant also paid sales and use taxes on tangible personal property acquired by it for its own use. It is conceded by the Commonwealth that our decision in Lehigh Valley Cooperative Farmers v. Commonwealth, 8 Pa. Commonwealth Ct. 18, 305 A.2d 908 (1972), entitles petitioner to a refund of said sales and use taxes paid during the years 1971, 1972 and 1973, and such refund was granted upon appellant's petition by the Bureau of Sales and Use Tax (Bureau). The Bureau, however, denied appellant's petition for the years 1969 and 1970 on the ground that the three year period of limitation contained in subsection (a) of Section 253 of the Tax Reform Code of 1971 (Code), Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7253(a), controlled and not the five year period of limitation contained in subsection (d) of that Section. The Board of Finance and Revenue affirmed and this appeal followed. It raises only the question of which subsection of Section 253 applies. We reverse.
Section 253 of the Code provides, in pertinent part:
[ 29 Pa. Commw. Page 260]
(a) Except as provided for in section 256 and in subsection (b) and (d) of this section, the refund or credit of tax, interest or penalty provided for by section 252 shall be made only where the person who has actually paid the tax files a petition for refund with the department within three years of the actual payment of the tax to the Commonwealth. Such petition for refund must set forth in reasonable detail the grounds upon which the taxpayer claims that the Commonwealth is not rightfully entitled to such tax, interest or penalty, in whole or in part, and shall be accompanied by an affidavit affirming that the facts contained therein are true and correct. . . .
(d) Notwithstanding any other provision of this section where any tax, interest or penalty has been paid under a provision of this article subsequently held by final judgment of a court of competent jurisdiction to be unconstitutional, or under an interpretation of such provision subsequently held by such court to be erroneous, a petition for refund may be filed either before or subsequent to final judgment, but such petition must be filed within five years of the date of the payment of which a refund is requested. . . . (Footnote omitted.)
A comparison of these provisions reveals that subsection (a) of Section 253, prescribing a three year limitation on refunds, is specifically declared not applicable to circumstances within the scope of subsection (d) which in turn prescribes a five year rather than a three year limitation on refunds. It is also significant in ascertaining the legislative intent as to the scope of these ...