Opinion
Submitted July 22, 1949.
August 1, 1949.
Taxation — Payment of taxes into court — Appeal pending before Board of Property Assessment, Appeals and Review — Delinquency pending appeals — General County Assessment Law — Second Class County Tax Assessment Act.
1. Under The General County Assessment Law of May 22, 1933, P. L. 853, as amended by the Act of July 15, 1935, P. L. 1007, and the Second Class County Tax Assessment Act of June 21, 1939, P. L. 626, a taxpayer does not have the right to pay into court taxes levied against him upon real estate from the assessment of which he has duly appealed and which appeal is still pending before the Board of Property Assessment, Appeals and Review. [577-81]
2. Sections 10 and 16 of the Second Class County Tax Assessment Act, do not prevent taxes from becoming delinquent until after appeals are completed. [580]
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeals, Nos. 211 and 212, March T., 1949, from order of Court of Common Pleas of Allegheny County, July T., 1949, Nos. 2199 and 2546, respectively, in cases of Carnegie-Illinois Steel Corporation v. City of Duquesne and Same v. The County of Allegheny. Order affirmed.
Proceeding upon petition of taxpayer to pay taxes into court. The facts are stated in the opinion, by MONTGOMERY, J., of the court below, ROWAND, P. J., EGAN, ADAMS and MONTGOMERY, JJ., as follows:
By petition, Carnegie-Illinois Steel Corporation seeks to pay into this court the sum of $1,746,914.35, which represents the net amount (after discount) of all taxes claimed by the County of Allegheny to be due for the year 1949 upon all real estate owned by the petitioner within said County. The prayer of the petition was refused, exceptions were filed to the order of refusal, same were heard before this Court en banc and were overruled.
Briefly, the facts upon which the petition is based are as follows: The Board of Property Assessment, Appeals and Review of Allegheny County assessed the real estate of petitioner within the County of Allegheny at the sum of $161,657,777.00 for the triennial period 1949-50-51. Petitioner filed appeals from this assessment to the said Board on or about February 1, 1949, but to the date of filing the petition no hearings had been held on said appeals nor had they been disposed of otherwise. Upon the assessments as originally made and revised by the Board and certified to the County Commissioners unaffected by the petitioner's appeals, the County budget for 1949 was established, the tax millage set, and the tax bills issued.
Petitioner in its statement to the Court at the argument clearly and correctly states the question involved as follows: "Does the taxpayer have a right to pay into Court taxes levied against it upon real estate from the assessment of which it has duly appealed and which appeal is still pending before the Board of Property Assessment, Appeals and Review?"
That this is a statutory proceeding and not an appeal to the equitable powers of the court is admitted by petitioner. From our understanding of its arguments and briefs, it relies solely on statute to justify its petition. The particular statute upon which it relies is Article V, Sec. 518 of The General County Assessment Law, approved May 22, 1933, P. L. 853, as amended 1935 July 15, P. L. 1007, Sec. 1, 72 PS 5020-518. This Act, however, has been superseded by the Second Class County Tax Assessment Act of 1939, June 21, P. L. 626, 72 PS 5452.1, but not specifically repealed, except where inconsistent. Our reading of both Acts indicates no inconsistency on the point involved in the matter we are considering. The latter Act contains no reference to payment of money into Court pending appeals, but provides only for the issuance of exonerations in cases of unpaid taxes and of refunds for taxes paid pending appeals. This is similar to the provision in the former Act providing for the return of the excess of taxes paid to the person or persons paying the same. The additional alternative included in the earlier Act of paying money into court as well as the further alternative of paying the disputed taxes to the Collector under protest as contained in a second amendment of the General Act, which amendment was approved July 12, 1935, P. L. 674, 72 PS 5020-518, are not included in the latter Act, but are not forbidden. We, therefore, conclude that they are still existing alternatives available to the taxpayer in handling his tax money pending appeal.
The question then resolves itself into a determination of whether the alternative of paying tax money into court is available to the taxpayer during the pendency of his appeal before the Board, but before an appeal is filed to the Court. The amendment providing for payment into Court is headed: "Appeal to Court from Assessment; Collection pending Appeal; Payment into Court." Our reading of this section fails to indicate that the Legislature had in mind any appeal except to the Court from the action of the Board of Tax Assessment, Appeals and Review or from the action of a Board of County Commissioners sitting as such. There is not the slightest indication in the amendment that the Legislature had reference to the appeals to the tax assessing bodies. From the caption of the section to the end of it, in every particular, the intent is clear that it was meant to apply only to appeals to Court and not to the Boards; and that only after an appeal was filed in Court does it grant the right to pay tax money into Court. The wording is clear. The words, "that the appellant may pay the amount of the tax alleged to be due by reason of the assessment appealed from into the Court to which such appeal is taken" — cannot be interpreted to mean, "to which such appeal may be taken."
Counsel has cited the case of Homestead Borough v. Defense Plant Corporation, 356 Pa. 500, as authority in support of its interpretation of Section 518 that such Act authorizes payment into court pending any appeal whether to the tax assessment body or to the court, but our reading of the case fails to disclose such a statement. The point decided in that case, aside from the lienability of the tax, was that the taxpayer had no right to make its own separation and to tender only the amount of tax admitted by him or it to be due and thus avoid interest and penalties. The defendants had made no tender of the entire tax to the Board nor had it tendered to the Court any portion of the tax. In referring to the provisions of The General County Assessment Law (72 PS 5020-518-519) Mr. Justice JONES, the writer of the opinion, made a general statement concerning a taxpayer's rights to pay his tax to the Tax Collector or to the Court, but only for the purpose of illustrating that under any circumstances all of the tax must be tendered. Mr. Justice JONES made no application of the statute provisions to the defendant in that case but stated specifically, "A complaining taxpayer may pay the entire tax to the collector and obtain a refund . . . or he may pay the entire amount . . . into court. . . ." etc. However, he does not discuss when or under what circumstances the rights may be exercised nor does he state that the defendants therein would have been saved the interest and penalties had the tax in full been tendered to the Court. That point was not decided in the case, according to our understanding of the decision.
Phipps et al. v. Kirk, Treasurer, 333 Pa. 478, is likewise not in point. That case arose under the Act of 1897, P. L. 219, which contained no provision for a refund of any excess tax paid in case a reduction was secured in the assessment. It was for that reason that the court held, on appeal, that taxpayers were not considered to be delinquent during the pendency of their litigation. That is distinctly different from the situation arising under the present Legislation which provides that, appeals shall not affect the assessments or the collection of the taxes and which does not provide for exonerations and refunds. In this connection, we cannot accept petitioner's contention that the wording of Sections 10 and 16 of the Act of 1939 prevent taxes from becoming delinquent until after appeals are completed. Such a contention would be contrary to the provisions hereinbefore mentioned, viz., that appeals shall not affect the validity of taxes assessed or prevent the collection of the taxes. In our opinion, the sections referred to indicate solely that after the appeals are completed the taxpayer is precluded from further questioning his assessment during the balance of the triennial period and the Board is likewise estopped from altering them during the triennial period except as permitted by the Act or other law.
No authority has been called to our attention whereby this court, generally, has the right or authority to accept payment of funds in dispute when there is no case pending before it. In view of this and of our interpretation of Sec. 518 of The General County Assessment Act, aforesaid, we are of the unanimous opinion that the prayer of the petition was rightfully refused and the exceptions to the order dismissed.
Petitioner appealed.
Elder W. Marshall, Frank W. Ittel and Reed, Smith, Shaw McClay, for appellant.
Nathaniel K. Beck, County Solicitor, Edward G. Bothwell, First Assistant County Solicitor, Leonard Boreman, Assistant County Solicitor, for County of Allegheny, appellee.
Louis C. Burstin, City Solicitor, and Edward G. Bothwell, for City of Duquesne, appellee.
The Order of the Court below is affirmed on the opinion of Judge MONTGOMERY.