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LEROY S. LAPP v. COMMONWEALTH PENNSYLVANIA (06/16/78)

decided: June 16, 1978.

LEROY S. LAPP, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Board of Finance and Review in case of In Re: Leroy S. Lapp, Docket No. CPIT-845.

COUNSEL

James P. Coho, for petitioner.

R. Scott Shearer, Deputy Attorney General, for Commonwealth.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by President Judge Bowman.

Author: Bowman

[ 36 Pa. Commw. Page 143]

By petition for review in the nature of a tax appeal, petitioner, Leroy S. Lapp, seeks a refund of a portion of $5,424.97 paid to the Commonwealth in compromise of a tax assessment made against him and for which the taxing authorities had caused a lien to be filed. The Board of Finance and Revenue refused his petition for refund, hence this de novo tax appeal. The facts have been stipulated.

Petitioner, who operates a sole proprietorship engaged in painting and sandblasting, is an employer within the meaning of Section 301(h) of the Tax Reform Code of 1971 (Code),*fn1 72 P.S. § 7301(h). Petitioner is required pursuant to Section 319(3) of the Code, 72 P.S. § 7319(3), to pay over to the Commonwealth on a semi-monthly basis the personal income taxes withheld from his employees' paychecks. This he did through June 30, 1972. However, subsequent to that date, and throughout 1973, petitioner withheld but did not pay over these taxes.

During December, 1973 and January, 1974, petitioner was audited by the Pennsylvania Personal Income Tax Bureau (Bureau). On January 17, 1974, prior to any formal assessment being issued, petitioner tendered two checks to the Bureau auditor in the amounts of $4,849.60 and $10,289.35 to cover, respectively, the balance of the 1972 and the entire amount of the 1973 income tax he had withheld from his employees.

[ 36 Pa. Commw. Page 144]

On or about February 5, 1974, the Bureau issued a formal assessment against petitioner with respect to 1973 as follows:

Tax Due $10,289.35

Tax Timely Remitted

Balance Due ...


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