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EASTERN INVESTMENT COMPANY v. COMMONWEALTH PENNSYLVANIA (02/21/89)

decided: February 21, 1989.

EASTERN INVESTMENT COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Board of Finance and Revenue, in the case of In Re: Eastern Investment Company, Petition for Refund of Realty Transfer Tax for the transfer dated 12/19/85, Docket No. M-RT-17, 297, dated June 23, 1987.

COUNSEL

Melvin Alan Bank, Bank, Minehart & D'Angelo, for petitioner.

Ronald H. Skubecz, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Barry and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry. Dissenting Opinion by Senior Judge Kalish.

Author: Barry

[ 123 Pa. Commw. Page 511]

Eastern Investment Company (petitioner) petitions for our review of a decision of the Board of Finance and Revenue which denied petitioner's request for a refund of the realty transfer tax paid under protest. We affirm.

[ 123 Pa. Commw. Page 512]

Petitioner and the Department of Revenue (Department) have stipulated to the following facts. On December 16, 1985, the petitioner conveyed a parcel of property by deed to the Redevelopment Authority of Berks County; that deed, which was recorded, recited the actual consideration of $3,880,000.00. At the time of recording, the petitioner claimed that the transfer was exempt from the realty transfer tax. In July of 1986, the Department issued a determination that the transfer was subject to the tax and that tax of $38,800.00 plus interest of $2,415.30 was due. The Department's Board of Appeals sustained the determination in January of 1987. On March 6, 1987, petitioner, under protest, paid the tax plus accrued interest of $4,736.17, or a total of $43,536.17. Petitioner filed a timely request for refund with the Board of Finance and Revenue which was denied on June 23, 1987. Petitioner then filed a timely appeal to this Court.

Petitioner makes but one argument. It argues that the Redevelopment Authority of Berks County is a "nonprofit industrial development agency". At the time this deed was recorded, a tax of one percent of the value of the property was due upon recording of any document. Section 1102-C of the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, as amended, added by Act of May 5, 1981, P.L. 36, as amended. When the deed was recorded, Section 1101-C defined "document" as "[a]ny deed . . . but does not include . . . any transfers to or from nonprofit industrial development agencies. . . ." Petitioner argues that since a redevelopment authority performs many of the same functions as a nonprofit industrial development agency, no tax is due on this transfer under the language cited immediately above.*fn1 We do not agree.

[ 123 Pa. Commw. Page 513]

"Nonprofit industrial development agency" is not defined in the Tax Reform Code. Section 3(g) of the Pennsylvania Industrial Development Authority Act, Act of May 17, 1956, P.L. (1955) 1609, as amended, 73 P.S. ยง 303(g) defines "industrial development agency" as:

     a nonprofit corporation or a foundation or association organized and existing under the laws of this Commonwealth, regardless of the particular name, to whose members or shareholders no profit shall enure and which shall have as a purpose the promotion, encouragement, construction, development and expansion of new or existing industrial development projects in a critical economic area.

That same section defines "government" as "the State or Federal governments, or any political subdivision, agency or instrumentality, corporate or ...


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