Robert M. Kerr, Petitioner
Commonwealth of Pennsylvania, Respondent
Submitted: April 11, 2018
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A.
McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE
MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON,
Judge HONORABLE ELLEN CEISLER, Judge
E. COVEY, Judge
M. Kerr (Kerr) filed exceptions pursuant to Pennsylvania Rule
of Appellate Procedure (Rule) 1571(i) to this Court's July 6,
2017 order affirming the Board of Finance and Revenue's
(Board) January 25, 2012 order sustaining the Board of
Appeals' (Appeals Board) dismissal of Kerr's Petition
for Reassessment (Petition) (Exceptions). The sole issue
before the Court is whether the Court erred by concluding
that Kerr's Petition was untimely filed. After review, we
overrule Kerr's Exceptions.
procedural posture of this case is undisputed. See
Stipulation of Facts (Stipulation). By April 7, 2009 notice, the
Commonwealth of Pennsylvania Department of Revenue
(Department) assessed taxes, penalties and interest on income
Kerr, a Georgia resident, derived from his investment in PSMK
Associates, a Pennsylvania limited partnership (Assessment
Notice). See Stip. ¶ 3; see
also Stip. Ex. H. The Department sent the Assessment
Notice to Kerr by certified mail at 1126 Shoreline Drive,
Jefferson, Georgia. See Stip. Ex. H. A bar code and
certified mailing number 7179 0771 4430 9024 3503 appear at
the top of the Assessment Notice and next to the number are
the words "Certified Mail Number." See
Stip. Ex. H. The Assessment Notice contained the following
YOU HAVE THE RIGHT TO APPEAL FOR A REASSESSMENT OR REFUND.
DETAILS OF YOUR APPEAL RIGHTS ARE ENCLOSED
(SEE REV-554). . . . A TAXPAYER DISAGREEING WITH THE
ASSESSMENT OF TAX MUST FILE A PETITION FOR REASSESSMENT OR
REFUND. APPEALS MUST BE FILED BY THE FOLLOWING DATE: 1)
ON OR BEFORE JULY 06 2009 A PETITION FOR REASSESSMENT
MUST BE FILED OR 2) ON OR BEFORE OCT 07 2009 REMIT
THE BALANCE DUE TO THE [DEPARTMENT] AND FILE A PETITION FOR
REFUND. APPEALS ARE CONSIDERED TIMELY IF POSTMARKED BY THE
U.S. POSTAL SERVICE ON OR BEFORE THE LAST DAY FOR PETITIONING
FOR REASSESSMENT OR REFUND OR IF RECEIVED AT THE ADDRESS
BELOW ON OR BEFORE THE LAST DAY FOR PETITIONING FOR
REASSESSMENT OR REFUND.
Stip. Ex. H. at 3 (emphasis added).
filed the Petition with the Appeals Board on March 25, 2011.
See Stip. ¶ 6. The Appeals Board dismissed the
Petition because it was not timely filed. Kerr appealed from
that decision to the Board. By January 25, 2012 order, the
Board sustained the Appeals Board's decision. Kerr
appealed to this Court. On July 6, 2017, this Court affirmed
the Board's order. Kerr timely filed the Exceptions which
are now before this Court en banc.
argues in his brief in support of his Exceptions (Exceptions
Brief) that Section 338(a) of the Tax Reform Code of 1971
(Code),  requires that the Assessment Notice be
sent by certified mail and, since the Assessment Notice was
not stamped with a certified mail tracking number, "[i]f
the Commonwealth cannot produce this number, then the
[Assessment Notice] is void and . . . should be set
aside" because it "may never have been
mailed." Exceptions ¶ 11(j); see also Kerr
Exceptions Br. at 10, 13; Kerr Original Br. at 10, 13. In
support of his position, Kerr stated that "he never
received the [A]ssessment [Notice], " and "he did
not learn of [it] until liens were filed." Stip. ¶
4. This position is the identical argument Kerr made in his
original appeal to this Court.
concluding that Kerr's Petition was late-filed, this
Court observed that the Assessment Notice was sent to
Kerr's record address in Georgia and, despite that the
Commonwealth did not produce a stamped post office receipt,
the Assessment Notice clearly contains a certified mailing
number. See Stip. Ex. H. Moreover, shortly after the
Assessment Notice was mailed, the Department received an
April 30, 2009 letter from certified public accountant, Paul
Frederick Kelly (Kelly), wherein Kelly stated: "[Kerr]
is not aware of any taxable issues that would create [the
Assessment Notice] and believes this [Assessment Notice] is
in error. Please provide [Kerr] a copy of the document you
used to prepare [the Assessment Notice]." Stip. Ex. I;
see also Stip. ¶ 5. Kelly's letter reflects
that it was copied to Kerr. See Stip. Ex. I. By June
10, 2009 letter, sent by certified mail to Kerr at 1126
Shoreline Drive, Jefferson, Georgia, the Department's
Pass Through Business Office explained its assessment.
See Stip. Ex. J; see also Stip. ¶ 5.
The Department's June 10, 2009 letter further specified:
If you should disagree with the adjusted tax
liability, you must file a petition for reassessment or
refund. The specific filing deadlines are printed on the
Please review the attached Preservation of Appeal
Rightsthat explains that even if you
contact the [Department]
after you receive the assessment your time to appeal
to the [Appeals Board] is
still running. More information on filing an appeal
can be found at www.boardofappeals.state.pa.us[.]
See Stip. Ex. J (emphasis added). The return receipt
reflects that Kerr received the Department's June 10,
2009 letter on June 12, 2009, at the same address where the
Department's April 2009 Assessment Notice was mailed.
See Stip. Ex. J at 4. Kerr filed the Petition on
March 25, 2011. See Stip. ¶ 6.
[Kerr] contacted the Department on August 19, 2009 and
October 21, 2009 regarding the assessment of 2006 tax due.
Department records show that a member of the Pass-Through
Business Office spoke to [Kerr] on October 22, 2009, during
which [Kerr] indicated that he did not receive the
Department's [A]ssessment [N]otice. The Department then
informed [Kerr] of his right to appeal the assessment to
the [Appeals Board] and resent ...