455 Pa. 127 | Pa. | 1974
Opinion by
Anastasi Brothers Corporation,
The refund sought, -12,104.35, represents tax paid to Spring-Lock Scaffolding Company, on the purchase of personal property to be used by appeUant in its construction business.
Procedure in tax appeals is prescribed by statute.
Consequently appellant in its stipulation of facts failed to allege that the property was purchased for use outside the Commonwealth. This allegation, the foundation upon which appellant’s entire theory of recovery is built, was not in the record before the court nor, as required by section 1104, in the specification of objections. Therefore the appeal was correctly dismissed.
It is argued, however, that the stipulation’s reservation of the right to introduce additional evidence permits appellant to present testimony or documents indicating the destination of the purchased items. While this interpretation may, in fact, be correct, it fails to furnish any basis for disturbing the Commonwealth Court’s adjudication. The present record reflects no effort to introduce any additional evidence until after the conclusion of the Commonwealth Court hearing. The refusal of the court to reopen the record for submission of additional evidence is a matter of discretion. Commonwealth v. Deitch Co., 449 Pa. 88, 100-01, 295 A.2d 834, 841 (1972). There is no indication of abuse
Furthermore, even assuming that additional evidence had been received, appellant’s “Appeal and Specifications”
It is obvious, as the Commonwealth Court observed, that on appeal de novo the sufficiency or weight of the evidence previously presented is not a cognizable issue. Here specifications 1 through 3 challenged only the weight and sufficiency of the evidence submitted in the administrative hearings and did not state a justiciable issue in the Commonwealth Court.
Specification 4 fails to recognize that by statute a party appealing pursuant to section 1104 has the burden of proving facts requiring reversal.
As the Commonwealth in Carheart stipulated facts preventing imposition of the tax, here taxpayer by its stipulation has precluded a refund. Furthermore, even had the appeal and specifications presented a justiciable issue, appellant’s failure to incorporate the administrative record or to present evidence de novo on appeal would require affirmance.
The order of the Commonwealth Court is affirmed.
Appellant is a Pennsylvania corporation registered to do business as a masonry construction contractor in Florida, Massachusetts, New Jersey, Rhode Island, Vermont, and the District of Columbia, as well as in Pennsylvania.
Anastasi Bros. Corp. v. Commonwealth, 9 Pa. Commonwealth Ct. 288, 305 A.2d 738 (1973).
This Court’s jurisdiction attaches pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 203, 17 P.S. § 211.203 (Supp. 1973).
A March, 1970 audit of Spring-Lock disclosed a deficiency resulting from the sale to Anastasi Brothers. Anastasi reimbursed Spring-Lock for the tax paid and filed a petition for refund.
Act of April 9, 1929, P.L. 343, art. XI, § 1104, as amended, 72 P.S. § 1104 (Supp. 1973) (amended and repealed in part, Act of July 31, 1970, P.L. 673, art. V, §§ 508(a) (29), 509(g) (33), as amended, 17 P.S. §§ 211.508(a) (29), 211.509(g) (33) (Supp. 1973)).
See note 5 supra and accompanying text.
The Tax Reform Code of 1971, Act of March 4, 1971, P. L. 31, art. II, § 236, 72 P.S. §7236 (Supp. 1973); see Commonwealth v. Bogus, 88 Dauphin County Rptr. 94, 96 (Pa. C. P. 1967).