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WYOMING SAND & STONE COMPANY v. DEPARTMENT REVENUE (03/23/78)

decided: March 23, 1978.

WYOMING SAND & STONE COMPANY, APPELLANT,
v.
DEPARTMENT OF REVENUE, DEPARTMENT OF THE AUDITOR GENERAL AND TREASURY DEPARTMENT OF THE COMMONWEALTH OF PENNSYLVANIA



COUNSEL

Albert J. Tomalis, Jr., Harrisburg, for appellant.

Vincent X. Yakowicz, Sol. Gen., Donald J. Murphy, Deputy Atty. Gen., for appellee, Departments of Revenue and Treasury.

Frank P. Lawley, Jr., Chief Counsel, Robert P. Meehan, Deputy Counsel, Lester Eisenstadt, Deputy Auditor Gen., Harrisburg, for appellee, Department of Auditor General.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, Nix and Manderino, JJ., concur in the result.

Author: Roberts

[ 477 Pa. Page 490]

OPINION

Appellant Wyoming Sand & Stone Company (Wyoming Sand) appeals*fn1 from a unanimous order of the Commonwealth Court, sitting en banc, dismissing on preliminary objections its complaint in mandamus brought against appellees, the Department of Revenue, the Department of the Auditor General*fn2 and the Department of Treasury. Wyoming Sand sought to compel appellees to pay interest on a tax refund awarded Wyoming Sand by the Board of Review of the Bureau of Sales and Use Tax of the Department of Revenue. Wyoming Sand, dissatisfied with the amount of the refund, timely appealed. Wyoming Sand contends this award was wrongfully withheld during the appeal period and that interest should have been awarded on the challenged refund. We affirm the order of the Commonwealth Court.

I

On July 24, 1974, Wyoming Sand filed a timely petition with the Board of Review of the Bureau of Sales and Use Tax of the Department of Revenue, seeking a refund of $150,000 in sales and use taxes allegedly overpaid. Wyoming Sand later reduced its claim to $121,667. On May 23,

[ 477 Pa. Page 4911975]

, the Board of Review granted the Company a refund of $91,570.

On July 17, 1975, Wyoming Sand took a timely appeal to the Board of Finance and Revenue from the Board of Review determination. The Board of Finance and Revenue decided this appeal on December 10, 1975.*fn3

Appellees did not pay the refund to Wyoming Sand on May 23, 1975. Instead they credited it against an unrelated assessment of $103,050 made against Wyoming Sand.*fn4 In a proper proceeding, Wyoming Sand contested all but $20,000 of this assessment. It also requested the $91,570 in cash. On July 24, 1975, it filed a complaint in mandamus seeking release of the $91,570, the subject of Wyoming Sand's administrative appeal, and interest from May 23, 1975, the date the Board of Review determined that the refund ...


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