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BENEFICIAL FINANCE CONSUMER DISCOUNT CO. v. COMMONWEALTH PENNSYLVANIA (10/19/88)

decided: October 19, 1988.

BENEFICIAL FINANCE CONSUMER DISCOUNT CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Department of Revenue in the case of In Re: Beneficial Finance Consumer Discount Co., No. R-9638.

COUNSEL

Vincent X. Yakowicz, Yakowicz and DePasquale, for petitioner.

Ronald H. Skubecz, Deputy Attorney General, with him, Eugene J. Anastasio, Chief, Deputy Attorney General and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Palladino and Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge MacPhail did not participate in the decision in this case. Dissenting Opinion by Judge Palladino.

Author: Barbieri

[ 120 Pa. Commw. Page 505]

Beneficial Finance Consumer Discount Corp. (Petitioner) petitions for review of the order of the Board of Finance and Revenue (Board) denying its capital stock tax appeal. The parties have stipulated to the facts in the case. We affirm the Board.*fn1

For the 1983 tax year Petitioner filed a capital stock return which reported a capital stock value of five million dollars and a tax due of $50,000.00. Under Article XI of the Fiscal Code (Code), Act of April 9, 1929, P.L. 343, as amended, 72 P.S. §§ 1101-1108, a procedure is set forth by which the Department of Revenue (Department) may challenge the tax return by "settling" the tax report filed. In the present case, the Department settled Petitioner's capital stock value at eight million dollars and assessed a capital stock tax of $80,000.00. Petitioner then appealed the Department's action by filing a petition for "resettlement" with the Department within ninety days as called for by Section 1102 of the Code, 72 P.S. § 1102. Resettlement petitions are heard before the Department's Board of Appeals which is given six months by Section 1102 to dispose of the petition.

[ 120 Pa. Commw. Page 506]

In the present case, the Board of Appeals took ten months from the date of filing of the petition for resettlement to deny the petition and sustain the Department. The parties concede that the decision by the Board of Appeals was untimely and that only one month of delay was attributable to Petitioner who requested and received one continuance.

Following the denial of its petition for resettlement, Petitioner took a further appeal to the Board which also denied its petition. Section 1103 of the Code gives the Board six months to dispose of a petition but also states that if the Board fails to act the action previously taken on the petition for resettlement shall be sustained. In the present case, the Board did dismiss the petition within six months. However, in contrast to Section 1103, Section 1102 is silent as to the remedy when the Department's Board of Appeals fails to act within six months. Petitioner now argues that the remedy for the untimely action by the Department's Board of Appeals should be to dismiss the Department's settlement petition and accept the tax report as originally filed.

The relevant provision of Section 1102 simply reads:

It shall be the duty of the department with which the petition was filed, within six (6) months after the date of the receipt of any petition for resettlement, to dispose of such petition . . . .

Petitioner argues that the language of the statute establishes a mandatory time limit in which the Department's Board of Appeals must act or lose jurisdiction over the case. Consequently, we must decide whether the directive that the Department shall act ...


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