Appeal from the Order of the Board of Finance and Revenue in the case of In Re: Evergreen Helicopters, Inc., Docket No. RST-7654, 402384 SUT, AM-77825 S26.
Milton Bernstein, with him, James L. Walsh, Melman, Gekas, Nicholas & Lieberman, for petitioner.
Robert P. Coyne, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for respondent.
Judges Craig and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Senior Judge Kalish.
[ 101 Pa. Commw. Page 351]
In this appeal by a foreign corporation from a denial of a reassessment petition by the Board of Finance and Revenue, the question of law is whether the Department of Revenue must mail a notice of sales and use tax assessment to the address listed on a foreign corporation's registry statement*fn1 to apprise the corporation of the assessment.
Evergreen Helicopters (Evergreen) is an Oregon corporation which dispatches helicopters, for construction and crop dusting, from an office it maintains in Pennsylvania. Evergreen filed a registry statement with the Pennsylvania Department of State which lists its Oregon headquarters as the place to which our Department of Revenue should direct correspondence. The Department of Revenue sent a notice of assessment of sales and use taxes to Evergreen's Pennsylvania office only. That office forwarded the notice to the corporation's director of taxation in Oregon. Evergreen did not immediately petition for a reassessment, however, because its director of taxation suffered a breakdown and absconded with the department's notice of assessment. When Evergreen finally became aware of the assessment, the prescribed period for filing a petition for reassessment with the Board of Appeals had lapsed.*fn2 Consequently, the Board of Appeals denied Evergreen's appeal; the Board of Finance and Revenue affirmed.
[ 101 Pa. Commw. Page 352]
Evergreen seeks to vacate the Board of Finance and Revenue's order and remand the case for a hearing on the merits of the assessment on the ground of a denial of due process because the department failed to send the notice of assessment directly to Evergreen's Oregon office. We must vacate the order of the Board of Finance and Revenue and remand for a hearing on the merits of the assessment.
By filing a registry statement with the Department of State under section 206(B) of the Business Corporation Law, 15 P.S. § 1206(B), Evergreen designated where it wanted notices of tax assessments to be sent. Section 1206(B) states:
The registry statement . . . shall set forth:
(2) The post office address to which the corporation desires correspondence to be directed by the Department of Revenue. . . .
The crucial determinant in this case is one of the Department of Revenue's own regulations, in effect when the notice of assessment was served, which required the department to direct such notices, not only to a known business address of the taxpayer in Pennsylvania, but also to such address as Evergreen had designated as one "desired" for notices -- as it did in its registry statement. Under the applicable regulation, proper service of notices is stated to be a prerequisite to the imposition of liability on the ...