Opinion
Argued January 6, 1975
March 27, 1975.
Taxation — Sales tax refund — Voluntary payment — Moot question.
1. When the Department of Revenue voluntarily makes a sales tax refund in compliance with an order of the Board of Finance and Revenue, an appeal filed by the Department challenging such order is rendered moot and must be dismissed. [174]
Argued January 6, 1975, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 671 C.D. 1974, from the Order of the Board of Finance and Revenue in case of In Re: West Penn Power Company, No. RST-145.
Petition with Department of Revenue for sales tax refund. Refund denied. Petitioner appealed to the Board of Finance and Revenue. Refund ordered. Department of Revenue appealed to the Commonwealth Court of Pennsylvania. Motion to quash appeal filed. Held: Appeal quashed.
Paul S. Roeder, Assistant Attorney General, with him Lawrence J. Rosen, Chief, Appeals Section, for appellant.
Lloyd R. Persun, with him Howell C. Mette, and Shearer, Mette, Hoerner Woodside, for appellee.
On March 27, 1974, the Board of Finance and Revenue, after considering West Penn Power Company's (West Penn) petition for refund of sales tax collected between 1966 and 1969, ordered that the refund be granted in the amount of $5,370.98. On April 9 the Department of Revenue (Department) issued a credit memorandum to West Penn in that amount and accepted it as payment for sales and/or use tax liability of West Penn incurred during 1974. On May 24 the Department appealed the Board's order to this Court and on August 30 West Penn filed a motion to quash the appeal.
West Penn contends that the Department, by extinguishing its liability and complying with the Board's order, has rendered the appeal moot. In WFIL Broadcasting Company v. Philadelphia, 358 Pa. 208, 56 A.2d 75 (1948) the City issued a property tax refund to the taxpayer after the lower court had ordered that the assessed value of the property be reduced. Our Supreme Court held that the City's appeal from the lower court order was thus moot. We must reach the same result here.
We must emphasize, however, that the Department's payment in this case appears to have been entirely voluntary, unlike the situation in J. Purdy Cope Hotels Company v. Fidelity-Phenix Fire Insurance Co., 126 Pa. Super. 260, 191 A. 636 (1937) where the appellant's payment of judgment followed execution on the lower court's judgment.
We, therefore, issue the following
ORDER
NOW, this the day of March, 1975, the appeal of the Commonwealth of Pennsylvania, Department of Revenue, from the order of the Board of Finance and Revenue dated March 27, 1974, is hereby quashed.