Submitted: April 10, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge  HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E.
COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE
ELLEN CEISLER, Judge
KEVIN BROBSON, JUDGE JUDGE 
Gaming and Entertainment, Inc. (Taxpayer) has filed
exceptions to the September 6, 2018 Memorandum
Opinion and Order of this Court,  which granted Respondent
Commonwealth of Pennsylvania's (Commonwealth) application
for summary relief and affirmed the order of the Board of
Finance and Revenue (F&R) that denied Taxpayer's
petition for refund of $1, 122, 654.89 in taxes paid based on
gross terminal revenue during the period of January 1, 2009,
through January 4, 2011 (Tax Period). "In tax appeals
from [F&R], this Court functions as a trial court, and
exceptions filed pursuant to Pa. R.A.P. 1571(i) have the
effect of an order granting reconsideration."
Consol. Rail Corp. v. Cmwlth., 679 A.2d 303, 304
(Pa. Cmwlth. 1996) (en banc), aff'd, 691 A.2d
456 (Pa. 1997).
Petition for Review, Taxpayer challenges F&R's
determination, which denied Taxpayer's petition for
refund for lack of subject matter jurisdiction and relied
upon Section 3003.1(a) of the Tax Reform Code of 1971
(Code).Section 3003.1(a) of the Code provides:
For a tax collected by the Department of Revenue
[(Department)], a taxpayer who has actually paid tax,
interest or penalty to the Commonwealth or to an agent or
licensee of the Commonwealth authorized to collect taxes may
petition the Department . . . for refund or credit of the
tax, interest or penalty. Except as otherwise provided
by statute, a petition for refund must be made to
the [D]epartment within three years of actual payment of the
tax, interest or penalty.
(Emphasis added.) This Court frequently reviews matters that
require application of a statute to particular facts and
circumstances. We did that in reviewing this matter
initially. As reflected in the Court's Memorandum
Opinion, we sided with the Commonwealth's position and
held that Taxpayer's petition for refund was untimely.
Taxpayer's exceptions once again provide us the
opportunity to review the question of whether F&R erred
in applying the three-year statute of repose in the
to Taxpayer's petition. To aid our review, we requested
supplemental briefs from the parties, limited to the question
of whether, as a matter of statutory construction,
the three-year statute of repose in Section 3003.1(a) of the
Codeapplies to Taxpayer's petition for
refund in this case, which sought only a credit against
future tax liability. No court should ever apply a statute
that, by its terms, plainly does not apply under the
circumstances simply because the parties invite us to do so.
See Estate of Sanford v. Comm'r of Internal
Revenue, 308 U.S. 39, 51 (1939) ("We are not bound
to accept, as controlling, stipulations as to questions of
determine whether Section 3003.1(a) of the Code bars
Taxpayer's petition for refund in the nature of an
adjustment/credit pursuant to 61 Pa. Code §
1008.1(c)(5), this Court is guided by the Statutory
Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991,
which provides that "[t]he object of all interpretation
and construction of statutes is to ascertain and effectuate
the intention of the General Assembly." 1 Pa. C.S.
§ 1921(a). "The clearest indication of legislative
intent is generally the plain language of a statute."
Walker v. Eleby, 842 A.2d 389, 400 (Pa. 2004).
"When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit." 1 Pa. C.S. §
1921(b). It is presumed "[t]hat the General Assembly
intends the entire statute to be effective and certain."
1 Pa. C.S. § 1922(2). Thus, no provision of a statute
shall be "reduced to mere surplusage."
Walker, 842 A.2d at 400.
"[e]very statute shall be construed, if possible, to
give effect to all its provisions." 1 Pa. C.S. §
1921(a). We, therefore, must be careful not to interpret
sections of a statute in a vacuum. Iacurci v. Cty. of
Allegheny, 115 A.3d 913, 916 (Pa. Cmwlth. 2015). As the
Pennsylvania Supreme Court has explained:
When interpreting a statute, courts should read the sections
of a statute together and construe them to give effect to all
of the statute's provisions. In giving effect to the
words of the legislature, we should not interpret statutory
words in isolation, but must read them with reference to the
context in which they appear.
Roethlein v. Portnoff Law Assocs., Ltd., 81 A.3d
816, 822 (Pa. 2013) (citation omitted).
June 10, 2019 Memorandum Opinion and Order requesting
supplemental briefing from the parties, we raised the
question of whether the reference to a petition for
"refund or credit" in the first sentence of Section
3003.1(a) of the Code but a subsequent reference only to a
"petition for refund" in the statute of repose
language should be interpreted to mean that the statute of
repose applies only when a party is petitioning for a
refund of taxes and not for a credit. The
Pennsylvania Supreme Court came close to answering this
question once. In Mission Funding Alpha v.
Commonwealth, 173 A.3d 748 (Pa. 2017), the Supreme Court
analyzed the three-year statute of repose in Section
3003.1(a) of the Code for purposes of determining when the
period begins to run. In that case, the taxpayer filed a
petition for refund with the Board on September 16, 2011,
seeking an actual refund of its 2007 franchise tax liability
in the amount of $66, 344. The Supreme Court held the
"actual payment of the tax, " which triggers the
running of the three-year statute of repose to seek a refund,
is the point at which the taxpayer transfers money or credits
to the Department and the Department accepts the same in
satisfaction of the taxpayer's tax liability. Mission
Funding, 173 A.3d at 763. Applying this interpretation,
the Supreme Court determined that the taxpayer actually paid
its tax liability on April 15, 2008, when the tax was due and
payable and when the Department accepted the taxpayer's
estimated tax payments and credits in satisfaction of the
taxpayer's 2007 tax obligation. Id. at 759-60,
763. Accordingly, the taxpayer's refund petition, filed
in September 2011, was late.
footnote to its opinion, the Supreme Court noted that the
taxpayer raised an alternative argument, that being that the
Supreme Court should treat the taxpayer's petition for
refund as a petition for credit. In the
taxpayer's view, the three-year statute of repose in
Section 3003.1(a) of the Code did not apply to a petition for
credit. Id. at 763, n.14. According to the Supreme
Court's opinion, the taxpayer in Mission Funding
only ever sought a refund in the case and never a credit.
Id. Moreover, the taxpayer never advanced an
alternative argument that it was seeking a "petition for
credit" before the Board, F&R, or this Court.
Id. The Supreme Court, therefore, refused to address
this argument, considering it waived. Id.
unlike the taxpayer in Mission Funding, Taxpayer has
only ever sought a credit (as opposed to an immediate refund)
against future tax liability as a remedy for the alleged
overpayment of taxes. In its supplemental brief, Taxpayer
argues why it believes that the statute of repose language in
Section 3003.1(a) of the Code, which refers only to a
petition for refund, should not apply in instances
where the petitioning taxpayer seeks a credit and not a
refund. In its supplemental brief, the Commonwealth argues,
by reference to other provisions of the Code, that the
reference to "petition for refund" in the statute
of repose should be ...