30 Pa. Commw. 253 | Pa. Commw. Ct. | 1977
Opinion by
The Court of Common Pleas of Philadelphia County quashed Aqua Bar & Lounge, Inc.’s appeal from the action of the Pennsylvania Liquor Control Board (Board) approving the transfer of a liquor license on the ground that Aqua had no standing. We reverse the order below.
Aqua was once the holder of a restaurant liquor license which had been lodged with the Liquor Control Board for safekeeping. On January 16, 1975,the Internal Revenue Service (IRS) issued a Notice of Seizure of the appellant’s property rights in the liquor license pursuant to provisions of the Internal Revenue Code, 26 U.S.C. §6331.
On August 7, 1975 Aqua requested the Board to conduct a hearing in which it might challenge the Mace application. The Board refused the request. On December 8, 1975 the Board approved the transfer of the license to Mace, and on December 19 Aqua appealed this action to the Court of Common Pleas of Philadelphia County with the result hereinbefore mentioned.
Section 464 of the Liquor Code,
Any applicant . . . who is aggrieved ... or any church, hospital, charitable institution, school or public playground located within three hundred feet of the premises applied for, aggrieved by the action of the board in granting the issuance of any such license or the transfer of any such license, may take an appeal limited to the question of such grievance. . . .
Because Aqua was not an applicant or any of the institutions named in Section 464, the court below concluded that it had no right to appeal the Board’s action transferring its licenses. Clearly, Aqua had a direct interest in the matter adjudicated by the Board —the approval of transfer to another of Aqua’s li
We feel compelled to note the difficulty we have in understanding Aqua’s attack on the levy and sale made at the instance of IRS. First, the Internal Reve
No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether' or not such person is the person against whom such tax was assessed.
Second, it would appear that Aqua, instead of attacking the assessment of a tax deficiency directly by the means provided by the Internal Bevenue Code, is contesting it by a collateral attack on the transfer of the license following execution. “The validity of an execution, like that of a judgment, cannot be inquired into collaterally even though the execution is so irregular that it could be set aside on motion of the debtor. ” P.L.E. Execution Vol. 15, §49. Nevertheless, it seems clear to us that Aqua has the right to be heard and we will remand for a hearing in the court below.
Aqua also filed a direct appeal from the action of the Liquor Control Board approving the transfer of the license to Mace. It did so as a precaution against the possibility of a holding that Section 403 of the Appellate Court Jurisdiction Act of 1970
Accordingly, we enter the following
Order,
And Now, this 20th day of May, 1977, it is ordered and decreed that the order of the Court of Common Pleas of Philadelphia County here appealed to our Docket No. 941 C.D. 1976 he and the same hereby is reversed and the record is remanded to the Court of Common Pleas of Philadelphia County for hearing of Aqua’s appeal from the Board’s action approving the transfer of Aqua’s license to B. J. R. Mace, Inc.; and that the appeal from the action of the Liquor Control Board to our Docket No. 1922 C.D. 1975 be and the same hereby is quashed.
This section, dealing' with levy and distraint, provides that:
(a) Authority of Secretary or delegate. —If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax . 1 . .
(b) Seizure and sale of property. —The term ‘lfevy’ as used in this title includes the power of distraint and seizure by any means. A levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the Secretary or his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible). (Emphasis in original.)
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §1-101 et seq.
By Section 2-207(i), 47 P.S. §2-207(i), winch, in addition to giving the Board the power to make rules and regulations, provides that they “shall have the same force as if they formed a part of this act.”
Act of July 31, 1970, P.L. 673, as amended, 17 P.S. §211.403.