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WILLIAM A. SCHMIDT v. COMMONWEALTH PENNSYLVANIA (10/24/80)

decided: October 24, 1980.

WILLIAM A. SCHMIDT, T/A A. J. SCHMIDT & COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Board of Finance and Revenue in case of In Re: William A. Schmidt, t/a A. J. Schmidt & Company, Docket No. RST-2652.

COUNSEL

Joseph K. Pierce, Tive, Hetrick & Pierce, P.C., for petitioner.

Robert Patrick Coyne, Deputy Attorney General, for respondent.

President Judge Crumlish and Judges MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 54 Pa. Commw. Page 360]

Petitioner, William A. Schmidt, t/a A. J. Schmidt and Company, has filed with this Court a petition for review of an order of the Board of Finance and Revenue (Board) refusing jurisdiction of an appeal from a reassessment of sales and use taxes based on the untimely filing of that appeal. We affirm the order of the Board.

Petitioner's business was audited for the time period beginning January 1, 1973 and ending August 31, 1976 and was assessed a total of $16,723.86 for sales and use taxes, including interest and penalties. This assessment was mailed to Petitioner on or about December 28, 1976. Petitioner thereafter petitioned for a reassessment pursuant to Section 232 of the Tax Reform Code of 1971 (Code), Act of March 4, 1971, P.L. 6, 72 P.S. § 7232. The Board of Review's reassessment decision and order, which abated the penalties imposed in the original assessment, was issued on March 21, 1978. The parties have stipulated that the Department of Revenue's (Department) records show that the decision and an undated transmittal letter were also mailed to the Petitioner on March 21, 1978. The Board of Review, in addition, sent a notice of reassessment to the Petitioner which was dated March 24, 1978. Petitioner

[ 54 Pa. Commw. Page 361]

    filed a petition for review of the reassessment decision with the Board on May 23, 1978.

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 and Revenue to review such decision." (Emphasis added.) Using March 21, 1978 as the date of mailing, the petition for review was filed one day late. Petitioner argues, however, that the Department had a duty to formally notify him of the date of mailing and, in default of such notice, that he was justified in considering March 24, 1978, the alleged date of mailing of the notice of reassessment,*fn1 as the start of his appeal period. The petition would, of course, have been timely filed using the later March 24 date.

The issue presented for our consideration is whether the language of Section 234 of the Code cited above, imposes a duty on the Department to notify potential petitioners of the date on which notice of a reassessment decision is mailed. We hold that it does not.

[ 54 Pa. Commw. Page 362]

This Court has previously decided that a petition for review under Section 234 is deemed filed only upon actual receipt by the Department. Department of Revenue v. Niemeyer Oldsmobile, Inc., 12 Pa. Commonwealth Ct. 388, 316 A.2d 152 (1974). We have also ruled, in Commonwealth v. J. & R. Equipment Rental Page 362} Co., 28 Pa. Commonwealth Ct. 558, 368 A.2d 1389 (1974), affirmed 477 Pa. 442, 384 A.2d 240, appeal dismissed 439 U.S. 804 (1978), that "Section 234 gives all taxpayers a sixty-day period in which to bring their appeals, and we do not find it unreasonable that the act of mailing of notice is used as a guidepost for determining the start of this period." Id. at 562, 368 A.2d at 1391. We note again that the parties have stipulated that Department records demonstrate that the decision involved in the instant case was mailed on March 21, 1978. Accordingly, the appeal period ...


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