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WEST PENN POWER COMPANY v. HOWARD COHEN (04/22/82)

decided: April 22, 1982.

WEST PENN POWER COMPANY, PETITIONER
v.
HOWARD COHEN, SECRETARY, PENNSYLVANIA DEPARTMENT OF REVENUE, RESPONDENT



Original jurisdiction in the case of West Penn Power Co. v. Howard Cohen, Secretary, Pennsylvania Department of Revenue.

COUNSEL

R. Scott Shearer, with him Howell C. Mette, Shearer, Mette & Woodside, for petitioner.

Vincent J. Dopko, Deputy Attorney General, for respondent.

President Judge Crumlish, Jr. and Judges Mencer, Rogers, Williams, Jr. and Craig. Opinion by President Judge Crumlish, Jr. This decision was reached prior to the resignation of Judge Mencer. Judge Palladino did not participate in the decision in this case.

Author: Crumlish

[ 66 Pa. Commw. Page 264]

This matter comes within the original jurisdiction of our Court. West Penn Power Company filed a complaint in mandamus to compel the Secretary of Revenue to make settlement of tax returns filed under the Public Utility Realty Tax Act*fn1 (PURTA) for the years 1969 through 1973. Additionally, petitioner has requested a declaratory judgment from this Court as to the duties and responsibilities of the Secretary of Revenue as applied to the administration of PURTA under the provisions of the Fiscal Code (Code).*fn2

In 1976 the Secretary of Revenue requested an Attorney General's opinion concerning the applicability of ยงยง 1001 and 1002*fn3 of the Code as applied to the administration of PURTA. Prior to this request, the

[ 66 Pa. Commw. Page 265]

Department of Revenue (DOR) had never formally settled any PURTA return. Because there was never any formal settlement, the taxpaying utilities were foreclosed from filing Petitions for Resettlement and were relegated to contesting overpayments under the refund provisions of the Code.*fn4

The Attorney General's opinion*fn5 stated:

We have carefully reviewed the Fiscal Code, and find no other provision which would be applicable to the collection of taxes under PURTA. Accordingly, it is our opinion, and you are hereby advised that Section 1001 of the Fiscal Code is applicable to PURTA, and imposes a duty on the Department of Revenue to settle such tax subject to the Department of the Auditor General's audit and approval, pursuant to the procedure set forth in Section 802 of the Code. Subsequent to the settlement, the provisions of Section

[ 66 Pa. Commw. Page 2661401]

of the Fiscal Code become applicable as in the case of all other tax settlements.

After this opinion was issued, the Secretary of Revenue began prospectively settling*fn6 all PURTA returns. West Penn then filed for refunds dating back to the taxable 1969 year. Refunds were granted back to the taxable 1974 year, due to a Supreme Court holding in Commonwealth v. Philadelphia Electric Co., 472 Pa. 530, 372 A.2d 815 (1977), which exempted certain property as taxable realty under PURTA. DOR refused to issue refunds for the taxable years ...


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