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BRUCE & MERRILEES ELECTRIC COMPANY v. COMMONWEALTH PENNSYLVANIA (09/02/87)

decided: September 2, 1987.

BRUCE & MERRILEES ELECTRIC COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT. BRUCE & MERRILEES ELECTRIC COMPANY, INC., PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeals from the Orders of the Board of Finance and Revenue, in cases of In Re: Bruce & Merrilees Electric Company, Docket Nos. RST-316, dated March 26, 1980; RST-2798, dated May 6, 1980 and RST-8004, dated December 19, 1984.

COUNSEL

Keith A. Hunter, Mahler & Shaffer, for petitioner.

Paul S. Roeder, Deputy Attorney General, with him, John G. Knorr, III, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Colins and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 109 Pa. Commw. Page 103]

Bruce & Merrilees Electric Company (taxpayer), an electrical equipment supplier and construction contractor, challenges orders of the Board of Finance and Revenue (Board) which modified or sustained decisions of the Board of Appeals pursuant to three assessments issued by the Commonwealth of Pennsylvania, Department of Revenue (Commonwealth) for the payment of additional sales and use tax accruing during the audit periods January 1, 1970 through December 31, 1972 (No. 897 C.D. 1980), January 1, 1973 through February 28, 1977 (No. 1331 C.D. 1980), and January 1, 1980 through June 30, 1983 (No. 182 C.D. 1985). These appeals have been consolidated for our consideration. Because of the evolution of the law over the thirteen years covering these assessments, we will consider them individually and in chronological sequence.

[ 109 Pa. Commw. Page 104]

Appeals to this Court from the Board are de novo. In accordance with Pa. R.A.P. No. 1571(f), the taxpayer and the Commonwealth have entered into and filed a Partial Stipulation of Facts for each of the three assessments which we accept and adopt, in pertinent part, as findings of fact for the purposes of this appeal. From those stipulations and from our review of the evidence presented at a hearing on March 3, 1986, we distill the following Findings of Fact:

Findings of Fact

1. Taxpayer is Bruce and Merrilees Electric Company, a duly organized Pennsylvania corporation engaged in business as an electrical construction contractor and electrical equipment supplier.

2. During the first assessment period here at issue, January 1, 1970 through December 31, 1972 (No. 897 C.D. 1980 or first audit), the Commonwealth conducted a complete audit of taxpayer's books and records and issued the following assessment (No. A-66495):

Sales Tax $0.00

Use Tax 13,338.89

Interest to 5-15-73 1,927.45

Penalty 943.12

Total due the

Commonwealth $16,209.46

3. Taxpayer conceded use tax in the amount of $417.18 as due and owing but filed an appeal with the Board of Appeals, contesting the remainder of the use tax assessed.

4. The Board of Appeals, after a hearing, issued a decision and order abating the penalties but sustaining the remainder of the assessment.

5. Taxpayer filed a timely Petition for Review with the Board of Finance and Revenue, which Board issued

[ 109 Pa. Commw. Page 105]

    a decision reducing the use tax assessment to $6,762.39 plus appropriate interest.

6. Taxpayer filed a timely Petition for Review with this Court and the matter was docketed at No. 897 C.D. 1980.

7. The Commonwealth conducted a complete audit of taxpayer's books and records for the period of January 1, 1973 to February 28, 1977 (No. 1331 C.D. 1980 or second audit), and issued the following assessment (No. A-80162):

Sales Tax $3,717.42

Use Tax 97,697.53

Interest due to

7-15-77 14,843.26

Penalty 14,419.79

Total due Common-

     wealth $130,678.00

8. Upon taxpayer's timely Petition for Reassessment, the Board of Appeals sustained the tax assessment, with interest, but abated the penalties imposed.

9. Upon further appeal, the Board of Finance and Revenue reduced the assessment as follows:

Sales Tax $2,459.11

Use Tax 26,001.16

Total due Common-

     wealth plus appro- $28,460.27

     priate interest

10. The taxpayer conceded $2,824.34 of the sales and use tax assessment, collectively, as due and owing, but filed a timely Petition for Review with this Court contesting the remaining assessed ...


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