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DAN MAURICE MYERS AND BARBARA JEAN MYERS v. COMMONWEALTH PENNSYLVANIA (12/22/80)

decided: December 22, 1980.

DAN MAURICE MYERS AND BARBARA JEAN MYERS, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF REVENUE, RESPONDENT



Original jurisdiction in case of Dan Maurice Myers and Barbara Jean Myers v. Commonwealth of Pennsylvania, Department of Revenue.

COUNSEL

Gordon A. Roe, Kain, Brown & Roberts, for petitioners.

Christos A. Katsaounis, Assistant Attorney General, with him Elisabeth S. Shuster and Allan C. Warshaw, Deputy Attorneys General, for respondent.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 55 Pa. Commw. Page 510]

In this action, addressed to our original jurisdiction, Dan Maurice and Barbara Jean Myers (Petitioners) seek a declaratory judgment as to the constitutionality of Section 339 of the Tax Reform Code of 1971 (Tax Code),*fn1 Act of March 4, 1971, P.L. 6,

[ 55 Pa. Commw. Page 511]

    for reassessments of the personal income tax jeopardy assessments and on April 16, 1980 reassessments were issued based on adjusted income calculations submitted by the Department's Financial Investigative Unit.*fn3 Petitioners filed appeals to the Board of Finance and Revenue on July 7, 1980 from the reassessments. Each of the jeopardy assessment appeals taken by Petitioners challenge, inter alia, the constitutionality of Section 339 of the Tax Code, the statute's jeopardy assessment provision.

On or about January 24, 1980 Petitioners filed appeals from the sales tax assessments with the Department's Board of Appeals. Petitioner Dan Myers also requested a hearing on the necessity of a bond requirement issued pursuant to Section 277 of the Tax Code, 72 P.S. § 7277. The bond requirement in the amount of $320,000.00 was upheld by the Board of Appeals. The Department's brief indicates that the Board of Appeals denied Petitioners' appeals from the sales tax assessments and that further appeals to the Board of Finance and Revenue were filed on July 7, 1980.

The issues presented for our consideration by the Department's preliminary objections may be summarized as follows: (1) is this matter within the exclusive jurisdiction of the Department thereby rendering declaratory relief unavailable; (2) if not, may declaratory relief be rendered where other proceedings are pending before the Department involving the same parties and issues; and (3) is declaratory relief otherwise available to determine the constitutionality of tax statutes?

We believe that this case warrants some preliminary discussion of the recently enacted Declaratory

[ 55 Pa. Commw. Page 513]

Judgments Act (Act), 42 Pa. C.S. § 7531 et seq.*fn4 We recognize that the Act has substantially broadened the availability of declaratory relief as is reflected in the following language of intent: "The General Assembly finds and determines that the principle rendering declaratory relief unavailable in circumstances where an action at law or in equity or a special statutory remedy is available has unreasonably limited the availability of declaratory relief and such principle is hereby abolished."*fn5 42 Pa. C.S. § 7541(b). Further, Section 7537 of the Act, 42 Pa. C.S. § 7537, provides that while a court may continue in its discretion to refuse to grant declaratory relief if the controversy or ...


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