Summary
noting that, pursuant to Mausoleum Constr., a court has no jurisdiction to resurrect the question of an exemption
Summary of this case from Lincoln Philadelphia Realty v. Board of RevisionOpinion
Argued December 13, 1985
January 31, 1986.
Taxation — Exemption — Jurisdiction — Waiver — Due process — Notice.
1. A court may not extend the time period within which an applicant must ask for a tax exemption by permitting a petition nunc pro tunc absent a showing of fraud or its equivalent, except in some unique and exceptional instances; timeliness of such a request goes to jurisdiction and affects the competency of the appellate court, leaving it without jurisdiction to set back and resurrect the question of an exemption. [520]
2. Where an applicant has failed to voice his objection to the failure to grant a tax exemption within the proper time, he must be deemed to have waived all right to assert any constitutional objections which might have afforded him protection. [520]
3. The right to apply for a tax exemption is a property right and is afforded the safeguards of procedural due process as applied to administrative bodies. [520]
4. In a tax exemption case, proper notice is such notice as is reasonably calculated to inform the taxpayer of his right to apply for an exemption. [520]
5. It is the burden of the taxpayer when he seeks an exemption to make an application to the proper administrative body; this burden does not offend procedural due process since the taxing body may reasonably regulate procedures under which its laws are carried out. [521]
Argued December 13, 1985, before Judges CRAIG and COLINS, and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 452 C.D. 1985, from the Order of the Court of Common Pleas of Philadelphia County in the case of Academy Plaza Associates, Ltd. v. Board of Revision of Taxes, City of Philadelphia, No. 5823 October Term, 1984.
Application to the Philadelphia Board of Revision of Taxes for exemption from real estate taxes. Application denied. Taxpayer appealed to the Court of Common Pleas of Philadelphia County seeking to file application for exemption nunc pro tunc. Appeal denied. DiBONA, JR., J. Taxpayer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Robert R. Guzzardi, for appellant. Joy J. Bernstein, Assistant City Solicitor, for appellee.
On November 18, 1983 appellant applied for and was issued a building permit. Almost a year after the issuance of this permit, namely on July 27, 1984, appellant filed for a tax exemption. The application was denied as untimely filed. Appellant then sought relief by filing a petition with the common pleas court for permission to file an application for an exemption nunc pro tunc. This permission was denied. We affirm.
Appellant contends that his failure originally to file on time was due to the Board's failure to provide him with adequate notice of his right to claim an exemption and that since this is a property right it cannot be denied him except by due process of law and that this requires adequate notice.
We affirm the action of the common pleas court.
Councilmanic Ordinance 1130/1744-A, section 19-1303(3) of The Philadelphia Code, authorizes the Board of Revision of Taxes to grant exemptions within sixty days of the date the building permit is issued. The taxpayer applies in writing on forms provided by the Board and the forms must be filed within a specified time period. The ordinance also provides that the applicant shall be notified by the Board of Revision of Taxes of a possibility of a tax exemption.
In the lower right-hand corner of the appellant's application for the building permit appeared this notification:
Information for exemption from real estate on improvement of properties may be obtained by contacting the Board of Revision of Taxes, Room 303 City Hall Annex, Philadelphia, Pa. 19107 MU6-4340.
A court may not extend the time period within which an applicant may ask for an exemption by permitting a petition nunc pro tunc absent a showing of fraud or its equivalent, except in some very unique and exceptional instances. Philadelphia v. Rohm Haas Co., 5 Pa. Commw. 287, 290 A.2d 428 (1972); Yatzor v. Washington Township Commissioners, 2 Pa. Commw. 614, 280 A.2d 130 (1971). Timeliness of such a request goes to jurisdiction and affects the competency of the appellate court to act. The court has no jurisdiction to set back and to resurrect the question of an exemption. In Re: Petition of Mausoleum Construction Co., 55 Pa. Commw. 504, 423 A.2d 809 (1980).
Furthermore, where the applicant has failed to voice his objection to the failure to grant an exemption within the proper time, he must be deemed to have waived all right to assert any constitutional objections which might have afforded him protection had he chosen to invoke it at the proper time. Wilson v. Philadelphia School District, 328 Pa. 225, 195 A. 90 (1937).
The right to apply for an exemption is a property right and as such is afforded the safeguards surrounding procedural due process as applied to administrative bodies. Armour Transportation Co. v. Pennsylvania Public Utility Commission, 138 Pa. Super. 243, 10 A.2d 86 (1939). The question, of course, is what constitutes adequate notice under these circumstances.
Proper notice is such notice as is reasonably calculated to inform the taxpayer of his right to apply for an exemption. First Pennsylvania Bank, N.A. v. Lancaster County Tax Claim Bureau, 504 Pa. 179, 470 A.2d 938 (1983).
The notice on the application was clear and had the appellant simply contacted the Board of Revision of Taxes he would have been adequately informed of the necessary information pertaining to his claim for an exemption.
It is the burden of the taxpayer when he seeks an exemption to make an application to the Board of Revision of Taxes. Four Freedoms House, Inc. v. City of Philadelphia, 443 Pa. 215, 279 A.2d 155 (1971).
This burden does not offend due process procedurally since the municipality may reasonably regulate procedures under which its laws are carried out. Speiser v. Randall, 357 U.S. 513 (1958).
ORDER
The order of the Court of Common Pleas of Philadelphia County entered at No. 5823 October Term, 1984, dated January 25, 1985, is affirmed.