*1 Opinion Dissenting Jones: Mb. Chief Justice language fully cognizant con- I am While Pennsylvania 1118(b) Rules in Rule tained majority from the I must dissent Criminal Procedure, view this matter. only provides 1118(b) “In all cases that:
Rule may attorney move for the defendant or the defendant added.) (Emphasis itself re- The Rule for a mistrial.” a Mistrial.” “Motion to Declare fers in its title to judges my intended to restrict the Rule was never view, sponte, of a mistrial. sua the declaration them, only “motions” “motions”; The Rule refers by parties or counsel Rule are made context of the pass upon is to function it not the court whose “'motions”. my Rule not and should belief that this does
It is appro- judge power deprive under of his inherent justice priate in the interest circumstances and re- record A of the instant declare a mistrial. review right judge, protect in order to that the veals very impartial trier foot, to a defendant fair majority properly re- view a mistrial. declared protecting judge of a who was the action verses judicial right tradition. in the finest defendant’s I dissent. Pomeboy in this joins dissenting opinion.
Mr. Justice Appellant, Wanamaker. monwealth, Com v. *2 1972. Before C. Jones, J., Eagen, M!ay Argued Nix and Pomeroy, Manderino, Roberts, JJ. O’Brien, General, Keitel, Attorney Deputy W. George Commonwealth, appellant.
('!. Rem- Saul, Randall, Jr., Ewing, with him Walter iek é Saul, appellee. *3 1972:
Opinion November Eagen, Mb. Justice from of Pennsylvania appeals The Commonwealth of of Pleas of the Court Common the final judgments aside and setting invalid County declaring Dauphin Income and Net Corporate of the appellee’s settlements Jan ending fiscal years Stock taxes seven Capital 1964.1 through January 31, 1958 uary 31, to the a jury pursuant was heard without case and P. L. P.S. 109, §1, of §688 Act April to the court of facts was submitted a stipulation offer further right reserved the each party evidence.1 depart- Pennsylvania corporation engaged Appellee, a ending years business, operates of fiscal on the basis ment store year. January 31st of each calendar presented the testi- issue the Commonwealth At trial of the Department Dodgers, taxing mony of officer of the of Charles employed generally Kevenue, explained taxing procedures who pairing filed, including report the use of the has been after a tax technique the need therefor. tbe
For tbe fiscal Stock question Capital Net Income Tax were due reports and Corporate of extensions filed, pursuant granted were actually as follows: time, Date Filing
Fiscal Year Ended Due Report of 11-15-58 1-31-58 5-15-58 5-15-59 8-17-59 1-31-59 8-16-60 1-31-60 5-15-60 11-15-61 1-31-61 5-15-61 1-31-62 5-15-62 8-15-62 5-15-63 11-18-63 1-31-63 5-15-64 8-18-64 1-31-64 Tbe table discloses tbe dates settlements following far under to be effected “so as possible” were required and tbe no- tbe dates wbicb applicable statutes, upon settlements mailed to actually tices proposed appellee:
Reports One Year One Year Actual Date After3 After Mailing Filing Due Date Fiscal Year Actual Report Report Notice Ended 5-15-59 1-22-64 1-31-58 11-15-59 1-31-59 5-15-60 8-17-60 1-22-64 5-15-61 8-16-61 1-22-64 1-31-60 5-15-62 11-15-62 1-22-64 1-31-61 5-15-63 8-15-63 1-22-64 1-31-62 1-31-63 5-15-64 11-18-64 8-25-66 1-31-64 5-15-65 8-18-65 8-25-66 introduced into evidence settlements of its tax Wanamaker *4 years ending January 31, 1966, reports 1967, fiscal for the three 1968, disclosing settlements to have been such made within one reports. relevance, filing claimed, year the Their it after was was any impossible it is for the rebut inference Commonwealth to year report within one after a has been to make a settlement filed. specified respect Corporate with to These are the dates Net respect Capital Tax, Tax. to Stock the Income With dates would of 5-15. all be 1-31 instead each, found that the court the lower
In instance justify late its settlement. failed to Commonwealth untimely un Having settlements were that such ruled April 801(b) 9, Act of The Fiscal Code, der Section (b) and §801 Sec 72 P.S. P. L. as amended, May Corporate Act of Tax Net income of the tion 8 §3420h(a),4 72 P.S. as amended, P. L. 16, 1935, to be due judgment for amount stated the was entered subject changes of reports, taxpayer's certain to Exceptions adjustments. liability federal tax due to by dismissed which were were the Commonwealth filed appeal followed.5 en banc. the court This questioning of the to the correctness addition ruling respect timeliness of these court’s with lower (1) that also asserts: the Commonwealth settlements, refusing judge error in the trial committed reversible by failing findings of fact to indicate its and submitted (2) un- that our construction therefor; reason leg- usurpation timely of the as invalid settlements (3) process; that the of timeliness and issue islative properly the first five was raised. sbaU, provides: (b) “All such settlements as far §803 72 P.S. may possible, that notice thereof reach the tax- be so made succeeding year year
payer of the for which before end report ought or return or been tax bonus was made have or made.” §3420h(a) provides: due under act “All taxes 72 P.S. department, and such settlement be settled shall be shall approval Department subject to audit and Auditor possible, General, shall, so far as be made so that notice there- and year may before the end of a after the tax reach required report to be made.” was appellee below, questioned proceedings also had In the regard reports tax with action the fiscal Commonwealth’s January 31, appellant 1965. The court held that ended had timely respect year. with settlements made valid pursued. no Exceptions dismissed *5 neither
We are satisfied that the Commonwealth moved to in a nor timely settle these taxes fashion offered for such justification delays adequate lengthy affirm the of the lower accordingly judgments court.
The
has
law with
to timeliness of settlement
regard
been articulated
this
on
occasions.
Court
three
prior
Inc.,
v.
Commonwealth
Allied Building Credits,
Pa.
A.
370, 123
2d 686
it
held
when
that
(1956),
a tax settlement
of the
is made after
the expiration
time limit set
cannot
out
the settlement
statute,
stand absent affirmative proof by the taxing depart
ment that
it was not
to make the settlement
possible
within the
A
time.
in Common
required
decade later
wealth v.
Harbor Water Power
Pa.
Corp.,
223 A.
2d 223
this Court reaffirmed Allied
(1966),
and summarized the
as fol
applicable legal principles
lows:
a
“(1)
settlement
is not made within
[I]f
time
provided by
upon
the burden
statute,
explain
Commonwealth to
the settlement
should
why
not be
held invalid because
lateness;
justifi
(2)
cation for
the Commonwealth
permitting
explain
the first
instance is the
far
presence
phrase
‘so
as possible’ in
In
§8(a)
[Corporate
Act
Net
come Tax
;6
(3)
phrase relieves the Common
Act]
from
wealth
compliance with the time
requirements
the statute under circumstances wherein the Common
wealth was
at
unable to act
all or, though able to act,
was under some disability
prevented
from act
it
ing
(4) what constituted such
promptly;
circumstances
is a
which must
question
determined
the facts of
each case.” The
added
opinion
qualification phrase
possible”
possible”
“so far as
and “as far as
con-
statutory provisions presently
tained in
two
under considera-
regarded
synonymous.
tion
are
See Commonwealth v. Western
Maryland: Railway
Co.,
(1969).
435 Pa.
Settlements from taxes five group range in this delays The ex- statutory beyond five years to almost months date. piration that of the ending on year appeal year first
The after the actual year filing One date 1958. January 31, Notice of given 1959. settlement was 15, was November 1964. January 22, to justify the purports glaring
The Commonwealth settlements its ar- of these embroidering tardiness necessity for with the pairing the general gument operations that here such could not notion further year prior re- been commenced until after the had previous year (1-31-57) settled. taxes for the were not settled until March 1959. On June appellee petitions for filed resettlement and the taxes resettled November 1960.
As the first awaited final action year previous subsequent on the several also abeyance pending fell due and were held in the re- settlement.
The lower court found had Commonwealth timely not acted 1957 settlement and not had im- demonstrated that this late settlement was without pact timely upon settlement of the taxes. Thus necessary the court did deem it to answer the prior year’s Commonwealth’scontention that a tax set- purposes pairing become tlement does not available for procedure. until the conclusion of the resettlement practice It is clear us, that the con however, *7 solidating subsequent reports to await resettlement prior year, of a can and here be, of was, destructive legislative time for scheme the settlement and resettle ment of taxes.7 argument
A rather similar
was advanced and re-
jected in Commonwealth v.
Harbor Water Power
Corp., supra.
“[Rjeliance
There we observed that
time of
resettlement ...
as
‘pairing’
the date for
-
only
can
lead to an
Common
absurd result because the
provided by
At the time this case arose it was
statute that
year
possible”
the Commonwealth had one
“so far as
in which to
years
settle* and
two
resettle these taxes. The
has the
obligation
maintaining
period
of
its business records for a
of three
years
any report
§3420j.
procedures
after
was filed. 72 P.S.
The
employed
taxing
here
enabled the
pro
authorities
to flout
these
impunity.
visions with
*
the Tax
Under
Reform Code of 1971 the time for settlement
Capital
Corporate
of
both
Stock
Net Income taxes was ex-
years.
4, 1971,
Act
tended to two
See
of March
,
2,
P. U.
No.
amended,
IV, §407,
§7407(a).
Art.
P.S.
wealth had a full two
to make this resettlement.
period,
Had it chosen to utilize
entire
for
this
the date
'pairing’
for
would have been
another sixteen
extended
months!”
The record discloses that no effort was made to years ending settle the for taxes 1-31-59and 1-31-60 year they within a from filed. the time As to January year group (year ending fourth 31, this 1961), year filing report one after the date of the was November until 1962. It November 15, after steps taxing any 15, 1962 that the authorities initiated towards of these taxes. year group
The fifth final of of this was that year ending January 1962. One after the 31, filing August Although date was 1963. the Com- during monwealth undertook a field examination this period, delay the real reason for seems to be the Com- consolidating report monwealth’s action for con- pending. sideration four with the then others stipulation that from *8 may investigate pleases, Commonwealth as it it but statutory period.” must settle within the 423 Pa. at report change 108. There we also conceded that a prevent does final tax ascertainment the least at report until after the date such is made. But fur- we ther in observed that a such situation Common- statute so that extended resettle is right
wealth’s fully protected. the Commonwealth seven for all of the record reveals Our review exten- received time years requested tax appellee not did appellee Further, these filing reports. sions on for information a immediately request respond was a some months delay securities and there certain information. the prop- manufacturing in furnishing justifying have merit er these facts would case none instantly. but have delay they Commonwealth’s on March 26, information was requested The securities tax the 1-31-58 reports. connection with and one-half months forward took two These taxes were settled, however, data. requested 1960, On January 29, until 1964. September informed letter appellee by Commonwealth Tax under and 1959 Stock were Capital reports information for settlement and requested consideration After a on the claimed exemption. manufacturing extensions this information was forward- series time the fact delay ed June 1961. Such is minimized that an additional months before thirty-one elapsed ever these settled! were taxes 1-31-63 1-31-64 ti-ie Settlements Years Both for these fical taxes were settled Au- years year a of one and nine months in gust 25, delay former a latter. instance and little year over after actual date November filing [One 1964 for the 1963 tax and for the 18, 1965 August 1964 levy.]
Once the Commonwealth waited to work again begin on these for the until resettlements first reports on five completed May 10, 1966. The lower court held that late settlement simply had not justified been since no Commonwealth
87 statutory pe- tke during was taken sort any action reiterate discussed we For the reasons previously riod. the by Depart- employed our of the rejection procedures erode the to effect was Their net of Revenue. ment destroy and to scheme time of the legislative vitality in tax administration. certainty the desirable to we move issue, of the primary Having disposed contention It is the Commonwealth’s other points. the eighteen to affirm in refusing erred judge the trial all fact since for findings requests of twenty-three in contained either the evidence by supported were Failure in oral testimony. or of facts stipulation urged denied is why requests such to indicate v. Gen in Commonwealth of our holding abe violation A. 2d 359 Pa. 239 Corporation, eral Foods (1968).8 nonjury complex Foods, supra, tax case tried In General 22, 1874, April provisions P. U. pursuant of the Act of §1 stipulated only partially §688, with the facts were 12 P.S. comprising pages evidence of testimonial an additional sustaining opinion the record. its balance of did found relevant but material narrated the factual
lower court
distinctly
separately
con-
found and the
the facts
and
not state
of law.
elusions
part:
provides
pertinent
“The decision
in
§689
12 P.S.
by
and,
requested
writing,
either
counsel for
in
if
court shall
taking
filing exceptions
purposes
of an
party
or for the
for the
distinctly
separately
..
.
appeal,
the facts found
and
shall state
.
conclusions of law. .
.”
and the
“Usually
type
observed,
opinion
of this Court
stipulation
en-
of a
means
the facts are established
parties.
it
is a
In such circumstances
tered into between
statutory language
satisfactory compliance
for the
with
above
findings
adopts
of fact
it
as its
court to state that
trial
par-
stipulated
such
been
which have
case those facts
added,
approve,
do not
A
“We
improperly judicial legislation declaring resorted to in untimely that are settlements void and that in such report instances the tax is to be treated aas settlement since the provi- here statutes involved contain no such sions. uniformly This Court has held the sanction of nullification to be the effect of late in settlement Buildvng Allied Credits, Harbor and Western Maryland cases. only Not permissible is this construction but point of fact it rescues these statutes from total irrele- primary vance. It is a canon of construction that stat- utes way must be construed in such a as to effectuate legislative purpose policy. Had these statutes interpreted any been Department other manner the of Revenue could flout reducing them at Avill legislative efforts to a series of vain acts. The Com- interpretation monwealth’s provisions renders the settlement, resettlement and maintenance of records a mere form words accept and we decline to it. remanded the case to the lower perti- court with directions to list specific nent facts. comparison There is no egregious between this situation present case. only pointed it remains connection 3n this only legislature amended last that out tivo-year period provide provisions with- a validly may act on such department now in which attempt- provide They an reports. not see fit to did requirements of did not meet the ed settlement valid. “It is well nonetheless be section would the new subsequent legislature, that the failure settled of a statute, in construction a of this Court to decision interpreted change legislative action the law as interpre- presumption our Court creates legislative intendment.” in accord with tation was Hos- Pennsylvania Board v. Uniontown Labor Relations (1968). pital A. 2d Pa. Assn., 149-50, argument is- is that the final The Commonwealth’s for the first five of settlement sue timeliness properly raised. §1104which Fiscal P.S. 1104 The Code, Section provides in appeals pertains case, like the instant *11 “Appeals part: shall be hear- hereunder taken relevant by questions ings be the no shall raised and de novo, brought appellant the attention of the not to that were application making department or in the the settlement, prior petition for review the or for resettlement, objections specification appeal, forth in the and set appeal, accompanying the in affidavit contained the appellant be satisfied that shall unless court diligence, of reasonable the exercise unable, department questions mak- before the raised such have ing of Finance and Reve- and the Board the settlement questions are not shall be raised which no nue, objections specification filed here- included [Emphasis supplied.] provided.” inbefore amakers the issue of as to raised timeliness Wan petition for in its review. first five these neg- the use of the double that contends Commonwealth implies question provision that a [§1104] in this ative if cannot raised it was not raised all appeal three situations TMs attributes specified.9 argument to the unintended If the ingenuity legislature. law desired to makers have Ms taxpayer preserve points for them at three different times presenting could have so they easily provided without forcing courts to substitute “and” for “or”. affirmed.
Judgments Dissenting Opinion Mb. Justice Roberts : I continue from to dissent unwar majority’s ranted, and unwise unreasonable, Sec interpretation tion of the Act not 8(a) only awards “potential windfall to the who taxpayer underassesses himself,” [s] but actually them encourages taxpayers underassess “in selves settlement not be made hope will within a Commonwealth v. year.” Maryland Western 435 Pa. Ry. Co., 257 A. 2d 525, 534, (1969) J., dissenting). reasons Although my (Roberts, have been dissenting succinctly two presented pre vious dissents on this identical Commonwealth v. issue, Western Maryland Ry. Co., Commonwealth v. supra; Harbor Power Water 423 Pa. A. Corp., 2d 223 (1966) J., dissenting), import (Roberts, ance of this question me to reiterate the compels briefly bases conclusion. my 9 The Commonwealth contends that it was not the intention legislature permit question to raise a before
the court which was raised before the Board of Finance and Revenue, possible which is a result of the lower court’s construc- It §1104. tion of is noted issue could be raised but once department making before the then omitted from *12 petitions Therefore, urged the for resettlement and review. we are disjunctive conjunctive change or to the to the and in order to harm- by saying, onize the statute. The court lower answered “Subse- quent language employs conjunction the ‘and’ be cannot clearly expressed construed to control over what is in the first instance.” misinterpreting persists majority the in the
First, deprive phrase, far completely “so the so as statute any meaning possible”, whatsoever. Common- as Bldg., Pa. Credits, 370, 378, Inc., v. Allied wealth interpreted (1956), this this Court 2d 123 A. statutory or rea- phrase “within mean “reasonable” “ of the inclusion ‘The Court there stated: son”. possible” on the phrase an intent far indicates “so provision Legislature manda- part is not of the the recognizes Department tory upon of Revenue. It the duty department placed to act within on the saying, in not absolute immutable, one is present may if be which, there circumstances effect, taxpayer’s proven, a of the would allow year period (1) one has to be made after the account cause elapsed. constitute sufficient What would (1) year one to be made after the a settlement allow question period expired a that would have to has ” upon particular facts.’ in its own each case determined Id. supra, Harbor, unneces- the Court
However, “operative language sarily effect restricted delays taxpayer.” only created Id. at those dissenting). This 227-28 (Roberts, J., 223 A. 2d at question nullity phrase in a rendered construction phrase, taxpayer a could “. . even . since without charge successfully the Commonwealth with not timely delay in action because of his own failure of required taxing furnishing authorities with the rec- Clearly Legislature did intend ...” Id. ords. phrase meaningless There- statute. to include express observe the intent fore this Court should unreasonably Legislature abandon its restric- reading of the statute. tive justification
Secondly, I conceive of no ab- can liability solving he his when suffers absolutely delay prejudice as a result of the no *13 taxpayer assessment. fact, the who is assessed as actually money, receives windfall use of here, his interim, during period, interest-free, and further- pays penalty originally underassessing no more, himself. The now seeks “that in addition having advantage this his debt to the Commonwealth forgiven.” should be Commonwealth v. Harbor Wa- Corp., supra ter Power at 112 223 A. at2d 229 n.2. n.2, majority permitting advances no rational basis for corporate taxpayer escape lawfully imposed liability. today’s arbitrarily Moreover, decision places upon the Commonwealth the severe sanction of forfeiting lawfully accrued tax Such an un- revenues. compels unconventional and realistic, unsound result dissent. join
Mr. Nix Justice and Mr. Justice Manderino this dissent.
Common Appellant. wealth v. Jackson, March Submitted 16, 1972. Before Jones, C. J., Nix and Mander- Eagen, O’Brien, Roberts, Pomeroy, ino, JJ. notes November September requests further information appellee; were made of that there was a federal exam- corporate reports ination net income tax purposes required report change federal which then taxing Department to state authorities; questioned appellee’s Revenue entitlement a manu- facturing exemption, requiring opinion an from the legal impelled division and that these authorities felt appellee. to and did conduct a examination field supra, However, Harbor, as we stated “The