Commonwealth v. N. Barsky & Sons

¶1OPINION

¶2Appellant N. Barsky & Sons [Barsky] is disputing a Sales and Use Tax assessment made by the Commonwealth. This *16liability is covered by a lien of $579,000 filed against appellant by the Commonwealth pursuant to the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 45, § 277, 72 P.S. § 7277 (Supp.1977). Barsky appealed the administrative determination imposing the assessment to the Commonwealth Court under 72 P.S. § 7255. The Commonwealth Court ordered appellant to file an additional $200,000 bond as a condition of prosecuting the appeal, relying upon the Fiscal Code, Act of April 9, 1929, P.L. 343, § 1104(b), as amended, 72 P.S. § 1104(b). (Supp.1977). Section 1104(b) provides:

“Except when all tax, interest and penalty due with respect to the appeal has been paid, the party appealing, other than the Commonwealth, shall enter sufficient security, before the Commonwealth Court within sixty (60) days next after the filing of the appeal to prosecute the appeal with effect, to pay all costs and charges which the court shall award, and any sum of money which shall appear by the judgment of the court to be due by such party to the Commonwealth.”

¶3Barsky appealed to this Court the order requiring bond, asking that it be allowed to pursue the appeal in the Commonwealth Court upon the posting of nominal bond.1

¶4We hold that Barsky may pursue its appeal upon posting of nominal bond, but that nominal bond should not stay execution of the Commonwealth’s lien.2

¶5We recognized the burdensome nature of this appeal bond requirement in Commonwealth v. Philadelphia Eagles, Inc., 437 Pa. 25, 29, 261 A.2d 309, 311 (1970). We should therefore interpret the security requirement of 72 P.S. *17§ 1104(b) to be no more burdensome than is necessary to secure the Commonwealth.

¶6The bond requirement is not an explicit condition of the right to appeal. Therefore we should treat the requirement not as a condition to appeal, but as a condition to a stay of the order of the administrative agency from which the appeal is taken.

¶7Under the new Rules of Appellate Procedure, not in effect at the time Barsky appealed to the Commonwealth Court but nonetheless persuasive, failure to file this bond does not result in dismissal of an appeal: the bond acts merely as a supersedeas. Rules of Appellate Procedure 1782, 5105.

¶8Moreover a $579,000 lien against the assets of a small business hinders that business in obtaining a further security bond. To require such a bond would allow the Commonwealth to be doubly secured — by the lien and by the bond— as a condition to appeal, even though the Commonwealth can collect only on the lien if no appeal ensues. The Commonwealth should not be required to delay collection on its lien while appeal is pending unless the taxpayer puts up security in the form of a bond. On the other hand, if there is no supersedeas and the Commonwealth’s power to collect on the lien is not interfered with, there is no reason to impose any additional burden on a taxpayer as a condition to exercising the right to appeal.

¶9In Philadelphia Eagles, supra, we affirmed the dismissal of a petition to review a Franchise Tax assessment for failure to file a timely bond under 72 P.S. § 1104(b). However, the parties appeared to assume that failure to meet the bond requirement would result in dismissal, and did not present the question to us squarely. The Eagles argued that *18in the particular circumstances of its case, the bond requirement had been met; we did not consider the argument that the bond should act as a supersedeas only and not act as a condition of appeal. Furthermore, the opinion does not state whether the Commonwealth had filed a lien against the Eagles for the tax it claimed, as it has in the instant case.

¶10We do not agree with the Commonwealth that the Tax Reform Code of 1971, 72 P.S. § 7241, prevents the Commonwealth from foreclosing on its lien before the courts complete action on the taxpayer’s appeal. That section deals with the timing of tax collection while a controversy is pending before administrative tribunals, or where no appeal is taken from the administrative agency to the courts. When review is sought in the courts, the time of tax collection will be based upon other considerations — in particular the rules governing supersedeas.

¶11The order of the Commonwealth Court is vacated and the case remanded for proceedings consistent with this opinion.