11 Pa. Commw. 90 | Pa. Commw. Ct. | 1973
Opinion by
Plaintiffs have filed this Complaint in Equity against the Commonwealth of Pennsylvania and Robert Kane, Secretary of Revenue, to compel Defendant Kane to account and pay to Plaintiffs, and the class they allegedly represent, that portion of the Pennsylvania Sales Tax attributable to the Federal Manufacturers’ Excise Tax which was retroactively repealed and rebated on new automobiles and trucks purchased in Pennsylvania between August 16, 1971 and December 11, 1971. Preliminary Objections were filed by the Defendants alleging first, that this Court is without jurisdiction to entertain the instant equity action as Sections 252 to 255 of the Tax Reform Code of 1971, Act of March 4, 1971, P. L. 6, No. 2, Art. II, §252 to §255, 72 P.S. §7252 to §7255, provide Plaintiffs with an adequate remedy at law; and secondly, that the complaint fails to state a cause of action as the affirmative relief sought is barred by the Defendant’s sovereign immunity. A Protective Order was subsequently entered by President Judge Bowman of this Court upon Defend
In Rochester & Pittsburgh Coal Co. v. Indiana Board of Assessment & Revision of Taxes, 438 Pa. 506, 508, 266 A. 2d 78 (1970) our Supreme Court delineated the prerequisites of equity jurisdiction in cases involving actions by taxing authorities: “In a positive sense, what is required to confer jurisdiction on an equity court is the existence of a substantial question of constitutionality (and not a mere allegation) and the absence of an adequate statutory remedy.”
Section 252 of the Tax Reform Code of 1971 requires the Department of Revenue (Department) to “refund all taxes, interest and penalties paid to the Commonwealth under the provisions of this article and to which the Commonwealth is not rightfully entitled.” A refund petition may be filed with the Department under Section 253 by any person who actually paid the tax within three years of such payment. An extended filing period of five years from the date of payment is provided for by Section 253(d) should a court of competent jurisdiction subsequently find a provision under which the tax was paid to be unconstitutional or an interpretation of such provision to be erroneous. Should a refund petitioner be dissatisfied with a decision of
In considering the adequacy of this statutory remedy, we start with the proposition, well established under Pennsylvania law, that a refund of taxes voluntarily paid is a matter of legislative grace. Universal Film Exchanges, Inc. v. Board of Finance and Revenue, 409 Pa. 180, 185 A. 2d 542 (1961); Longstreth, et al. v. Kane and Sloan, 3 Pa. Commonwealth Ct. 311 (1971). And where such refund has been statutorily authorized, strict compliance with the procedures so established is required. Box Office Pictures, Inc. v. Board of Finance and Revenue, 402 Pa. 511, 166 A. 2d 656 (1961); Land Holding Corp. v. Board of Finance and Revenue, 388 Pa. 61, 130 A. 2d 700 (1957); Statutory Construction Act of 1972, Act of December 6, 1972, P. L. (Act No. 290) 1 Pa. S. §1504. Plaintiffs do not aver compulsion or duress in the payment of that portion of the Pennsylvania Sales Tax attributable to the rebated Federal Excise Tax, and therefore we must assume the tax was voluntarily paid. Box Office Pictures, Inc. v. Board of Finance and Revenue, 402 Pa. 511, 166 A. 2d 656 (1961).
The Supreme Court of Pennsylvania, in Graybill & Bushong, Inc. v. Board of Finance and Revenue, 414 Pa. 70, 198 A. 2d 316 (1964), was confronted with the question of the appropriate procedure for obtaining a refund following the retroactive exclusion by the Legislature of certain items under the then existing sale and use tax. The Court there held that its review of actions by the Board on refund petitions was by narrow certiorari rather than the previously available mandamus, and, more pertinent to the instant case, that the refund provisions of Section 553 of the Selective Sales and Use
Plaintiffs, while admitting that the remedy provided by Section 253 of the Tax Eeform Code of 1971 might be adequate for individual refund petitioners, assert that the remedy is unavailable to the class Plaintiffs represent, because refunds can only be made to the “person, his heirs, successors, assigns or other person representatives, who actually paid the tax.” (72 P.S. §7252). The thrust of this argument is that it would not be feasible for each purchaser of an automobile during the four month period for which the Federal Excise Tax was rebated to petition the Department of Eevenue, then the Board of Finance and Eevenue and eventually this Court for a refund which in many cases would total less than $10.00. There is nothing in the record, however, to suggest that individual petitions would be denied by either the Department or the Board. Moreover, the “class” of taxpayers allegedly represented by Plaintiffs would be adequately protected were Plaintiffs to exhaust their administrative remedies and have this Court declare their right to a refund. In such a case Section 253(d) would allow all similarly situated taxpayers to file a refund petition within five years of actual payment of the tax, thus alleviating the subsequent appeal procedure alleged to be impractical by Plaintiffs.
Order
And Now, this 13th day of November, 1973, the Preliminary Objections of the Defendants are hereby sustained.
Footnote omitted.
Act of March 6, 1956, P. L. (1955) 1228, as amended, 72 P.S. §3403-553.
Act of April 9, 1929, P. L. 343, as amended, 72 P.S. §503.
Act of September 9, 1971, P. L. 437, No. 105,’ 72 P.S. §7281.1.
