Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Bankers Bond and Mortgage Company v. School District of Philadelphia, No. 5420 March Term, 1976.
Joseph C. Bright, Jr., with him Gerald Krekstein, and Lewis M. Hendler, Drinker, Biddle & Reath, for appellant.
Eugene F. Brazil, General Counsel, for appellee.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case. Judge Palladino did not participate in the decision in this case. Dissenting Opinion by Judge Rogers.
[ 67 Pa. Commw. Page 108]
Before us is a tax appeal from an order of the Court of Common Pleas of Philadelphia County which denied the motion for summary judgment of Bankers Bond and Mortgage Company (taxpayer) and entered judgment in favor of the School District of Philadelphia (School District).
[ 67 Pa. Commw. Page 109]
The taxpayer here paid the School District General Business Tax to the Department of Collections of the City of Philadelphia (Department of Collections), which had been collecting School District taxes pursuant to annually enacted resolutions of the School Board directing it to do so. The taxpayer had sustained operating losses during the years 1969 through 1972 and, consequently, believed that it was not liable for the tax it paid during that period of time. On November 19, 1973, therefore, it filed petitions for refund with the Department of Collections which denied the refunds for 1969 through 1971, while allowing refund of the 1972 tax on the grounds that the petition was barred by the two-year statute of limitations set forth in the Local Tax Collection Law, Act of May 21, 1943, P.L. 349, as amended, 72 P.S. § 5566 (b). The taxpayer was advised that this decision was "a tentative ruling by the collector and may be appealed to the School District Board of Appeals. . . .", and such an appeal was filed with the Board of Tax Appeals of the School District, where the decision of the Department of Collections was upheld. An appeal to the Court of Common Pleas was then filed, where the taxpayer's Motion for Summary Judgment was denied and judgment was entered in favor of the School District. This appeal followed.
72 P.S. § 5566(b) provides in pertinent part:
Whenever any person or corporation of this Commonwealth has paid . . . into the treasury of any political subdivision, directly or indirectly. . . any taxes of any sort . . . to which the political subdivision is not legally entitled; then, in such cases, the proper authorities of the political subdivision, upon the filing with them of a written and verified claim for the refund of the payment, are hereby directed to make, out of budget appropriations of public funds,
[ 67 Pa. Commw. Page 110]
refund of such taxes . . . to which the political subdivision is not legally entitled. Refunds of said moneys shall not be made, unless a written claim therefor is filed, with the political subdivision involved, within two years of payment thereof.
The right of refund afforded by this act may not be resorted to in any case in which the taxpayer involved had or has available under any other statute, ordinance or resolution, a specific remedy by way of review, appeal, refund or otherwise, for recovery of moneys paid as aforesaid. . . . (Emphasis added; footnote omitted.)
The taxpayer asserts, however, that it has a specific remedy available to it under Section 19-1703(1) of the Philadelphia Code and that, therefore, the two-year limitation in 72 P.S. § 5566(b) does not apply. This Section of the Philadelphia Code provides in pertinent part:
(a) The Department of Collections may grant a refund, in whole or in part, upon determination that a tax, water or sewer rent, license fee or other charge, interest or penalty, or any part thereof has been paid ...