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Commonwealth v. Dixon

December 28, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
DENNIS KEITH DIXON, APPELLANT



Appeal from the Opinion and Order of the Superior Court dated October 15, 2008 at No. 1502 MDA 2007 Vacating and Remanding the Order of the Court of Common Pleas of Dauphin County, Criminal Division, dated August 8, 2007 at No. CP-22-MD-790-2006. 959 A.2d 399 (Pa. Super. 2008).

The opinion of the court was delivered by: Madame Justice Greenspan

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

SUBMITTED: July 27, 2009

OPINION

We determine where venue is proper for an action alleging a willful failure to pay personal income taxes in violation of Section 7353(c) of the Tax Reform Code of 1971, 72 P.S. §§ 7101-10004 (the "Code"). We hold that venue is proper in the county where the tax obligation arose. The Superior Court erroneously held that venue was proper not in the county where the obligation arose but instead in the county where payment was due. We therefore reverse and remand.

Appellant Dennis Keith Dixon is a resident of the Commonwealth who lives and works in Berks County, Pennsylvania. Appellant allegedly failed to pay personal income taxes for the tax years 2003 and 2004. Like all personal income taxes in the Commonwealth, Appellant's personal income taxes were to be paid to the Pennsylvania Department of Revenue in Dauphin County (the "Department").*fn1 The Commonwealth alleges that Appellant failed to pay his taxes.

Due to Appellant's failure to pay his taxes, the Commonwealth of Pennsylvania filed a criminal complaint against him on April 14, 2007 (the "Complaint"). In the Complaint, the Commonwealth charged Appellant with two (2) counts of violating Section 7353(c) of the Code. Pursuant to Section 7353(c) of the Code, it is a misdemeanor for a taxpayer to willfully fail to file a return and remit taxes. Section 7353(c) of the Code states as follows:

Any person required under this article to pay any tax or to make a return, keep any records or supply any information, who willfully fails to pay such tax or make such return, keep such records or supply such information at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and shall, upon conviction, be sentenced to pay a fine not exceeding five thousand dollars ($5,000), or to undergo imprisonment not exceeding two years, or both.

72 P.S. § 7353(c). The Commonwealth filed the Complaint in the Court of Common Pleas of Dauphin County.

After several continuances and other delays, the Honorable Lawrence F. Clark, Jr. of the Court of Common Pleas of Dauphin County held a preliminary hearing on July 11, 2007. At the hearing, Appellant's counsel orally requested a change of venue to Berks County. By order dated August 8, 2007, Judge Clark granted the motion and ordered that the case be transferred to the Court of Common Pleas of Berks County.

The Commonwealth timely appealed Judge Clark's order to the Superior Court. See Pa.R.A.P. 311(a)(3) (permitting an interlocutory appeal from an order changing venue in a criminal proceeding). On October 15, 2008, the Superior Court reversed the trial court's order and held that venue was proper in Dauphin County. Commonwealth v. Dixon, 959 A.2d 399, 404-05 (Pa. Super. 2008). The Superior Court remanded the case to the Court of Common Pleas of Dauphin County.

Appellant filed a Petition for Allowance of Appeal with this Court. On April 27, 2009, this Court granted allowance of appeal to consider "whether venue to try charges of willful failure to file a personal income tax return is proper in the county where the obligation to file the taxes occurred or in the county where performance of the act of filing was due." Commonwealth v. Dixon, 971 A.2d 486 (Pa. 2009). Stated more simply, this Court must now decide whether venue in an action alleging the willful failure to pay personal income tax is proper in the county where the tax obligation arose or the county where the payment was due.

Venue relates to a litigant's right to have an action brought and heard in a particular judicial district. Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003); Potteiger v. Fidelity-Philadelphia Trust Co., 227 A.2d 864, 868 (Pa. 1967). Venue in a criminal action is proper in the place where the crime occurred. Pa.R.Crim.P. 130(A); Bethea, 828 A.2d at 1075 (citing Commonwealth v. Mulholland, 702 A.2d 1027 (Pa. 1997)). Generally, venue begins in the court with a geographic connection to the underlying crime. Bethea, 828 A.2d at 1075. If a litigant moves to change venue, that litigant must demonstrate some necessity to justify the change in venue. Id. (citing Commonwealth v. Bridges, 757 A.2d 859 (Pa. 2000)).

To determine where venue is proper, this Court must determine where the crime of violating Section 7353(c) of the Code "occurred." See Pa. R. Crim. P. 130(A). This determination is guided primarily by this Court's decision in Commonwealth v. Boyle, 532 A.2d 306 (Pa. 1987)*fn2 and by the subsequent Superior Court decision in Commonwealth v. Bershad, 693 A.2d 1303 (Pa. Super. 1997).

In Boyle a taxpayer was charged with failure to file sales tax returns under Section 7268(b) of the Code. 532 A.2d at 307. The obligation to file the return in Boyle arose from operation of the taxpayer's restaurant in Crawford County. Id. After the return was not filed, the Commonwealth initiated a case against the taxpayer in Crawford County. Id. The taxpayer filed a pretrial motion alleging that venue was not proper in Crawford County.*fn3 Id. The trial court denied the motion, holding that venue was proper in Crawford County. Id. On appeal, the Superior Court reversed the trial court's order and held that the crime occurred in Dauphin County where the return should have been filed. Id. at 309.

This Court reversed the Superior Court and held that venue was proper in Crawford County where the actions giving rise to an obligation to file the tax return occurred. Boyle, 532 A.2d at 310-311. The Court discussed the various facts that might be utilized to ...


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