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GEMINI EQUIPMENT CO. v. COMMONWEALTH PENNSYLVANIA (06/20/88)

decided: June 20, 1988.

GEMINI EQUIPMENT CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Board of Finance and Revenue, in the case of In Re: Gemini Equipment Company, Docket No. RST-1874.

COUNSEL

William D. Boswell, Boswell, Tintner & Piccola, for petitioner.

Robert P. Coyne, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for respondent.

Judges MacPhail and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail. Judge Doyle dissents.

Author: Macphail

[ 117 Pa. Commw. Page 194]

Gemini Equipment Company (Petitioner) has appealed an order of the Board of Finance and Revenue denying Petitioner's appeal of a Sales Tax Board of Review (Board) decision to deny Petitioner's claim for a sales tax refund. We affirm.

On October 3, 1974, Petitioner entered into an agreement with Kimbob, Inc. for the lease of certain construction equipment to Kimbob. According to the stipulation of facts entered into by Petitioner and the Respondent, Commonwealth of Pennsylvania, pursuant to Pa. R.A.P. 1571(f), which stipulation we adopt as the facts of the case, Petitioner and Kimbob are affiliated companies with the same mailing address and same credit manager.

Petitioner sent invoices to Kimbob showing the charges for the equipment rental and sales tax applicable thereto. Petitioner then remitted the sales tax to the Department of Revenue.

During the four-month period between November 1975 and February 1976, Kimbob was unable to use the equipment due to inclement weather. Petitioner, consequently, issued a credit to Kimbob, in the amount of $80,215.45, for rental payments made during the time when the leased equipment was not used.

Petitioner then filed a claim for refund of sales tax paid on $78,840.45 of this credit, in the amount of $4,730.43. The Board denied Petitioner's claim, concluding that although Kimbob had not used the equipment for four months, the equipment did remain in Kimbob's possession throughout this period. As previously indicated, the Board of Finance and Revenue denied

[ 117 Pa. Commw. Page 195]

Petitioner's subsequent appeal and sustained the Board's decision.

The issue before this Court is whether sales tax was properly imposed on the lease of Petitioner's equipment to Kimbob, under Section 202(a) of the Tax Reform Code of 1971 (Code), Act of March 4, 1971, P.L. 6, as amended, 72 P.S. ยง 7202(a), notwithstanding the credit issued by Petitioner to Kimbob. We agree with the Commonwealth that the lease was a "sale at retail" under the Code and that, therefore, sales tax was appropriately imposed. We note initially that Petitioner, as the party seeking a tax refund, bears the burden of proving his entitlement to such. Anastasi Brothers Corp. v. Commonwealth, 9 Pa. Commonwealth Ct. 288, 305 A.2d 738 (1973), aff'd, 455 Pa. 127, 315 A.2d 267 (1974). We also recognize that the refund of taxes voluntarily paid is a matter of legislative ...


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