                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert M. Kerr,                              :
                            Petitioner       :
                                             :
                     v.                      :
                                             :
Commonwealth of Pennsylvania,                :    No. 158 F.R. 2012
                     Respondent              :    Argued: June 5, 2017


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge (P.)
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                       FILED: July 6, 2017

              Robert M. Kerr (Kerr) petitions this Court for review of the Board of
Finance and Revenue’s (Board) January 25, 2012 order1 sustaining the Board of
Appeals’ (Appeals Board) order dismissing Kerr’s Petition for Reassessment
(Petition). The sole issue before the Court is whether the Board erred by concluding
that Kerr’s Petition was untimely filed. Upon review, we affirm.
              Initially, “[i]n appeals from the [Board], . . . this Court functions as a
trial court, even though such cases are heard in our appellate jurisdiction. Questions
raised in the petition for review are determined on the record made before this
Court[.]” Hvizdak v. Commonwealth, 985 A.2d 984, 987 n.1 (Pa. Cmwlth. 2009)
(citation omitted). Pennsylvania Rule of Appellate Procedure (Rule) 1571(f) states:

              No record shall be certified to the [C]ourt by the [Board].
              After the filing of the petition for review, the parties shall

       1
        Kerr erroneously states in his brief to this Court that he is appealing from the Board’s
August 30, 2011 order. However, the Board decision Kerr appeals from was rendered January 25,
2012 and mailed January 27, 2012. See Kerr Br. App. A.
               take appropriate steps to prepare and file a stipulation of
               such facts as may be agreed to and to identify the issues of
               fact, if any, which remain to be tried. See Rule 1542
               (evidentiary hearing).

Pa.R.A.P. 1571(f). Rule 1542 provides: “[W]here it appears that a genuine issue as to
a material fact has been raised . . . , the [C]ourt on its own motion or on application of
any party shall, after notice to the parties, hold an evidentiary hearing for the
development of the record.” Pa.R.A.P. 1542.
               In the instant matter, on September 1, 2016, this Court ordered the
parties to file a stipulation for judgment by December 1, 2016, or a stipulation of
facts by January 3, 2017. On December 30, 2016, Kerr filed a proposed Stipulation
of Facts (Proposed Stipulation), in which he represented that a copy was served upon
the Commonwealth of Pennsylvania (Commonwealth), and that he “has received no
objections to the items listed therein.”2 Prop. Stip. ¶ 20. Although the Proposed
Stipulation referenced that Exhibits C (communications between Kerr’s accountant
and the Commonwealth), D (Appeals Board’s order), F (Chapter 16, Section XV of
the Pennsylvania Personal Income Tax Guide), and G (statement of Kerr’s financial
condition) were attached thereto, they were not.3 See Prop. Stip. ¶¶ 5, 7, 17, 18, 19.
               On April 27, 2017, the Commonwealth filed an Application for Relief,
wherein it asserted that it never signed the Proposed Stipulation (and there is no line
on which it could do so), and Proposed Stipulation Exhibits C through G were not
attached as represented. Notwithstanding, the Commonwealth declared:

               6. [T]he Commonwealth proposes it will accept the one-
               sided [Proposed Stipulation] if it can supplement the record

       2
          The Commonwealth states in its brief to this Court that its “S/F, or Stipulation of Facts
[references in its brief], in the context of this case refers to the [Proposed Stipulation] submitted to
the Court by [Kerr’s] counsel on December 30, 2016. In actuality, there is no stipulation of facts.”
Commonwealth Br. at 2 n.1.
        3
          The Proposed Stipulation also contained Exhibit E (2006 personal income tax return). On
May 17, 2017, this Court granted Kerr’s motion to withdraw Exhibit E and any references thereto.
                                                   2
              with three exhibits. In addition, [Kerr] should be required
              to submit its copies of its proposed exhibits.
              7. In paragraph 3 of the [Proposed Stipulation], [Kerr]
              references the assessment issued by the [Commonwealth’s
              Department of Revenue (Department)] in April of 2009.
              The assessment is not attached. Perhaps this was supposed
              to be Exhibit A. Attached hereto as Exhibit B is a true and
              correct copy of the assessment issued on April 9, 2009 by
              certified mail.
              8. Attached hereto as Exhibit C is the letter written (with
              enclosure) by Paul Frederick Kelly, CPA [(Kelly)], on
              behalf of [Kerr] to the [Department] dated April 30, 2009.[4]
              9. Attached hereto as Exhibit D is the letter dated June 10,
              2009, sent by the Pass Through Business Office of the
              [Department] in response to [Kelly’s] letter discussed
              above. This letter was mailed to [Kerr] at his address in
              Georgia. This is the same address to which the assessment
              was mailed. This letter was sent certified mail.
              8. [sic] Due to the fact the Court wants this matter brought
              to a resolution, the Commonwealth will file its brief by May
              2, 2017 as required by the Order of Court dated April 18,
              2017. These three documents will be discussed in said
              brief.
              9. [sic] In paragraph 5 of [Kerr’s] [Proposed Stipulation],
              the two letters mentioned above (Exhibits C and D) may
              have been incorporated as a ‘Exhibit C’. However, the
              Commonwealth is not certain of this because [Kerr] never
              provided a copy of its purported ‘Exhibit C.’

App. for Relief at 2-3. The Department’s Director of the Pass Through Business
Office Karen M. Stusko verified that Exhibits B, C and D were true and correct
copies of the Department’s business records. Kerr did not oppose the Application for
Relief. On May 15, 2017, this Court granted the Commonwealth’s Application for
Relief, thereby rendering the Proposed Stipulation a Stipulation by the parties


       4
       At oral argument before this Court, Kerr’s counsel could not state how Kelly received the
Assessment Notice, but acknowledged that Kelly had it and was authorized to act on Kerr’s behalf.
                                               3
(hereinafter Stipulation).5 The Commonwealth filed its brief with the referenced
exhibits attached, and relied upon the Stipulation in support of its position on appeal.
Under the circumstances, the Court has sufficient facts before it to decide this appeal
without a hearing.
              By April 7, 2009 notice, the Department assessed taxes, penalties and
interest on income Kerr, a Georgia resident, derived from his investment in PSMK
Associates, a Pennsylvania limited partnership (Assessment Notice) Stip. ¶ 3; see
also Stip. Ex. H. The Department sent the Assessment Notice to Kerr by certified
mail at 1126 Shoreline Drive, Jefferson, Georgia. See Stip. Ex. H. The Assessment
contained the following instructions:

              YOU HAVE THE RIGHT TO APPEAL FOR A REASSESSMENT
              OR REFUND. DETAILS OF YOUR APPEAL RIGHTS ARE
              ENCLOSED (SEE REV-554). . . . A TAXPAYER DISAGREEING
              WITH THE ASSESSMENT OF TAX MUST FILE A PETITION
              FOR REASSESSMENT OR REFUND. APPEALS MUST BE
              FILED BY THE FOLLOWING DATE: 1) ON OR BEFORE JUL
              06 2009 A PETITION FOR REASSESSMENT MUST BE FILED
              OR 2) ON OR BEFORE OCT 07 2009 REMIT THE BALANCE
              DUE TO THE [DEPARTMENT] AND FILE A PETITION FOR
              REFUND.      APPEALS ARE CONSIDERED TIMELY IF
              POSTMARKED BY THE U.S. POSTAL SERVICE ON OR
              BEFORE THE LAST DAY FOR PETITIONING FOR
              REASSESSMENT OR REFUND OR IF RECEIVED AT THE
              ADDRESS BELOW ON OR BEFORE THE LAST DAY FOR
              PETITIONING FOR REASSESSMENT OR REFUND.

Stip. Ex. H. at 3 (emphasis added).
              Kerr filed the Petition with the Appeals Board on March 25, 2011. See
Stip. ¶ 6. The Appeals Board dismissed the Petition because it was not timely filed.


       5
          The Commonwealth’s Exhibits B, C and D were hereinafter added to the Stipulation as
Exhibits H, I and J, and Kerr was ordered to file copies of Proposed Stipulation Exhibits B through
G with the Court. In accordance with this Court’s May 15, 2017 Order, on May 16, 2017, Kerr
filed the Stipulation with Exhibits B, C, D, E, F and G attached. However, pursuant to this Court’s
May 17, 2017 Order, Exhibit E is to be disregarded.
                                                4
Kerr appealed from that decision to the Board. By January 25, 2012 order, the Board
sustained the Appeals Board’s decision. Kerr appealed to this Court.6
              Kerr argues that Section 338(a) of the Tax Reform Code of 1971
(Code),7 77 P.S. § 7338(a), requires that the Assessment Notice be sent by certified
mail and, since the Assessment Notice was not stamped with a certified mail tracking
number, “[i]f the Commonwealth cannot produce this number, then the [Assessment
Notice] is void and . . . should be set aside” because it “may never have been
mailed.”8     Kerr Br. at 13; see also Kerr Br. at 10. In support of his position, Kerr
stated that “he never received the [A]ssessment [Notice],” and “he did not learn of [it]
until liens were filed.” Stip. ¶ 4.
              Based upon our review of the record, the Assessment Notice was sent to
Kerr’s Georgia address and, despite that the Commonwealth did not produce a
stamped post office receipt, the Assessment Notice had a certified mailing number.
See Stip. Ex. H. The Department received Kelly’s April 30, 2009 letter, wherein
Kelly stated: “[Kerr] is not aware of any taxable issues that would create [the
Assessment Notice] and believes this [Assessment Notice] is in error. Please provide
[Kerr] a copy of the document you used to prepare [the Assessment Notice].” Stip.

       6
                In appeals from determinations of the [Board], this Court essentially
                acts as a trial court and exercises the broadest scope of review. Our
                standard of review is de novo. The stipulation of facts entered into by
                the parties is binding on them, although the Court may draw its own
                legal conclusions.
Luther P. Miller, Inc. v. Commonwealth, 88 A.3d 304, 308 n.5 (Pa. Cmwlth. 2014) (citations
omitted).
        7
          Act of March 4, 1971, P.L. 6, as amended, 72 P.S. §§ 7101-10004.
        8
          Kerr’s brief primarily challenges the merits of the Department’s underlying assessment,
and only briefly addresses the Petition’s timeliness.
        At oral argument before this Court, Kerr’s counsel represented that Kerr’s sole contention
relative to timeliness is that the Assessment Notice was not sent by certified mail.
        In Kerr’s reply brief, he argues that the certified mailing number without a Postal Service
Form PS 3800 is insufficient to prove that Kerr received the Assessment Notice. See Kerr Reply
Br. at 10-11.
                                                5
Ex. I; see also Stip. ¶ 5. Kelly’s letter reflects that it was copied to Kerr. See Stip.
Ex. I. By June 10, 2009 certified mailing to Kerr at 1126 Shoreline Drive, Jefferson,
Georgia, the Department’s Pass Through Business Office explained its assessment.
See Stip. Ex. J; see also Stip. ¶ 5. The Department’s June 10, 2009 letter further
specified:

                If you should disagree with the adjusted tax liability,
                you must file a petition for reassessment or refund. The
                specific filing deadlines are printed on the assessment.
                Please review the attached Preservation of Appeal Rights[9]
                that explains that even if you contact the [Department]
                after you receive the assessment your time to appeal to
                the [Appeals Board] is still running. More information on
                filing     an      appeal     can     be     found      at
                www.boardofappeals.state.pa.us[.]

See Stip. Ex. J (emphasis added). The return receipt reflects that Kerr received the
Department’s June 10, 2009 letter on June 12, 2009. See Stip. Ex. J at 4. Kerr filed
the Petition on March 25, 2011. See Stip. ¶ 6.
                The Board made the following findings in its Statement of the Case:

                [Kerr] contacted the Department on August 19, 2009 and
                October 21, 2009 regarding the assessment of 2006 tax due.
                Department records show that a member of the Pass-
                Through Business Office spoke to [Kerr] on October 22,
                2009, during which [Kerr] indicated that he did not receive
                the Department’s [A]ssessment [N]otice. The Department
                then informed [Kerr] of his right[] to appeal the assessment
                to the [Appeals Board] and resent [sic] the June 2009 letter
                explaining the assessment appeal process to an email
                address provided by [Kerr].

Kerr Br. App. A (Board Dec.) at 2. In addition, the Board found: “[Kerr] was
notified of the jurisdictional issue by letter dated October 18, 2011. [Kerr] has not
responded to date.” Board Dec. at 1. Notably, Kerr does not take issue, either in the

      9
          The Preservation of Appeal Rights was not included in the record filed with this Court.
                                                  6
Stipulation or his brief to this Court, with the Board’s findings. Rather, he claims
only that he did not receive the Assessment Notice and the Department cannot prove
that he did.
               However, Section 338(c) of the Code states,10 in pertinent part: “A
notice of assessment in the estimated amount shall be sent to the taxpayer.” 72 P.S.
§ 7338(c) (emphasis added). Section 338(d) of the Code declares that an assessment
notice “shall be mailed to the taxpayer.”11 72 P.S. § 7338(d) (emphasis added).
Neither provision requires certified mailing. In addition, Section 338(c) of the Code
mandates that “[t]he tax shall be paid within ninety days after a notice of such
estimated assessment has been mailed to the taxpayer, unless within such period the
taxpayer has filed a petition for reassessment . . . .”12 72 P.S. § 7338(c) (emphasis
added). Pursuant to Section 2702(a) of the Code,13 “[a] taxpayer may file a petition
for reassessment with the [D]epartment within 90 days after the mailing date of the
[Assessment Notice].” 72 P.S. § 9702(a) (emphasis added).
               Accordingly, Kerr was required either to pay the assessed taxes or
file the Petition within 90 days of the Assessment Notice’s date – by July 6, 2009
– which the Assessment Notice clearly specified. See Stip. Ex. H. at 3. However,
Kerr did not file the Petition until March 25, 2011 - nearly two years (23 months
and 19 days) later. See Stip. ¶ 6. Although there is no certified mailing receipt in
this record to prove when Kerr received the Assessment Notice, since Section 338 of
the Code does not expressly require certified mailing, its absence in this case is not a
Code violation. In addition, notwithstanding Kerr’s claim that he did not receive the


       10
            Added by Section 4 of the Act of August 31, 1971, P.L. 362.
       11
            Also added by Section 10 of the Act of October 18, 2006, P.L. 1149.
         12
            Kerr’s representation notwithstanding, Section 338(a) of the Code merely authorizes the
Department “to make inquiries, determinations and assessments of all taxes imposed by this
article.” 77 P.S. § 7338(a).
         13
            Added by Section 28 of the Act of October 18, 2006, P.L. 1149.
                                                7
Assessment Notice, it is clear from the unchallenged facts that Kelly made inquiries
about the assessment on Kerr’s behalf, and purportedly with Kerr’s knowledge, only
three weeks after the Assessment Notice was issued. The Department’s June 10,
2009 response to Kelly’s letter again instructed Kerr about his appeal rights while he
still had one month in which to timely challenge the Assessment Notice, but he
failed to do so. Moreover, although Kerr contacted the Department on August 19 and
October 21, 2009 to discuss the Assessment Notice, it was not until October 22,
2009 that he first claimed to the Department that he had not received the
Assessment Notice. Despite having, once again, been advised of his appeal rights on
October 22, 2009, Kerr waited another nearly 1½ years before filing the Petition.
Kerr provides no record explanation for the extensive delay, other than that he did not
receive the Assessment Notice, which claim is belied by the undisputed facts.
            The law is well established that the Code’s time limitations are to be
strictly enforced. Quest Diagnostics Venture, LLC v. Commonwealth, 119 A.3d 406
(Pa. Cmwlth. 2015), aff’d, 148 A.3d 448 (Pa. 2016). “It is also well established that
neither the Board nor this Court has power to alter the explicit time limitation set
forth in the [Code] based on equitable principles.”          Phila. Gas Works        v.
Commonwealth, 741 A.2d 841, 846-47 (Pa. Cmwlth. 1999), aff’d, 757 A.2d 360 (Pa.
2000). Under the circumstances presented here, we hold that the Board properly
dismissed Kerr’s Petition as untimely.
            Based on the foregoing, the Board’s order is affirmed.


                                         ___________________________
                                         ANNE E. COVEY, Judge




                                            8
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert M. Kerr,                          :
                          Petitioner     :
                                         :
                   v.                    :
                                         :
Commonwealth of Pennsylvania,            :   No. 158 F.R. 2012
                     Respondent          :


                                       ORDER

             AND NOW, this 6th day of July, 2017, the Board of Finance and
Revenue’s January 25, 2012 order is affirmed.
             Unless exceptions are filed within 30 days pursuant to Pa.R.A.P. 1571(i),
this order shall become final.


                                       ___________________________
                                       ANNE E. COVEY, Judge
