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COMMONWEALTH PENNSYLVANIA v. HELEN PAULA SACCO (08/05/87)

filed: August 5, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
HELEN PAULA SACCO, APPELLANT



Appeal from the Judgment of Sentence of September 23, 1986 in the Court of Common Pleas of Dauphin County, Criminal Division, at No. 230 C.D. 1986.

COUNSEL

George C. Entenmann, Pittsburgh, for appellant.

Andrea F. McKenna, Assistant Deputy Attorney General, Harrisburg, for Com., appellee.

Cirillo, President Judge, and Olszewski and Hester, JJ.

Author: Hester

[ 366 Pa. Super. Page 262]

Helen Sacco, appellant, was sentenced to probation for a period of one year and to pay a $1000 fine plus costs following her non-jury conviction of seven counts of failing to file sales tax returns and to remit sales taxes pursuant to 72 P.S. § 7268(b). We conclude that inasmuch as she filed the returns and paid the tax prior to the institution of the within criminal proceedings, she did not violate the provisions of the statute. We reverse.

On February 5, 1986, appellant was charged with failure to file tax returns and failure to remit sales taxes due on August 15, 1983, September 15, 1983, September 20, 1983, October 20, 1983, November 20, 1983, and January 20, 1984, which had been collected in the operation of Piccolo Piccolo, her restaurant in Pittsburgh. At trial, the supervisor of the sales tax division of the Pennsylvania Department of Revenue testified that all the returns were filed on February 23, 1984, and all taxes due, including penalties and interest, were paid by April 16, 1984. Notes of testimony, 5/16/86, at 16-18. Notwithstanding that fact, appellant was convicted under the following statutory language:

§ 7268. Crimes

(b) Other Crimes. . . . [A]ny person who shall wilfully fail, neglect or refuse to file any return or report required by this article or any taxpayer who shall refuse to pay any tax, penalty or interest imposed or provided for by this article, . . . shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1000) and costs of prosecution, or undergo imprisonment not exceeding one year, or both.

72 P.S. § 7268(b) (emphasis added). Contrast with section 7203 of the Internal Revenue Code of 1986.*fn1

[ 366 Pa. Super. Page 263]

Appellant did not fail to file the required returns, nor did she refuse to remit the required taxes. She performed these actions nearly two years prior to the institution of criminal action. Accordingly, her convictions cannot stand.

The Commonwealth argues that section 7268(b) should be construed as requiring the "timely" filing and remittance of taxes. In other words, it would have section 7268(b) read: "any person who shall wilfully fail, neglect or refuse to file any return or report required by this article [at the time or times required by law] or any taxpayer who shall refuse to pay any tax, penalty or ...


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