          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Epifanio Torres,                           :
                    Petitioner             :
                                           :
             v.                            :
                                           :
Commonwealth of Pennsylvania,              :   No. 567 F.R. 2016
                Respondent                 :   Argued: February 11, 2020



BEFORE:      HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                        FILED: February 28, 2020

              Epifanio Torres (Petitioner) petitions for review of an order of the
Board of Finance and Revenue, dated June 8, 2016, dismissing his petition for
refund, because the Board of Finance and Revenue concluded that the Board of
Appeals had properly dismissed Petitioner’s petition for refund of personal income
tax as untimely. Upon review, we affirm.
             As required by Pennsylvania Rule of Appellate Procedure 1571(f), the
parties filed a joint stipulation of facts and exhibits with this Court, which reveal the
following. In 2005, Petitioner failed to timely file a Pennsylvania personal income
tax return. Stipulation of Facts (Stip.), ¶ 4. The Commonwealth, through the
Pennsylvania Department of Revenue (Department), used information from the
Internal Revenue Service to establish Petitioner’s personal income tax liability for
the 2005 tax year. Stip., ¶ 5. On January 9, 2008, the Department issued a “Notice
of Assessment” to Petitioner relating to the 2005 tax year. Stip., Ex. A; see Stip., ¶
6. Petitioner did not appeal the assessment and paid the assessment on September
3, 2014. Stip., ¶¶ 8 & 9.
               On October 29, 2015, Petitioner filed a petition with the Department’s
Board of Appeals, requesting a refund. Stip., ¶ 10. By decision and order dated
December 30, 2015, the Board of Appeals dismissed Petitioner’s appeal for failing
to file a timely refund request. Specifically, the Board of Appeals held, “Section
3003.1(d) of the Tax Reform Code of 1971 [Tax Reform Code],[1] as amended,
provides that for payments made as a result of an assessment, a petition for refund
must be filed within six (6) months of the actual payment.” Stip., Ex. C. at 1
(emphasis added). The Board of Appeals determined that Petitioner was seeking a
refund of payments made as a result of an assessment. Id. Because Petitioner made
payment on September 3, 2014 and because his petition for refund was not filed until
more than a year later on October 29, 2015, it was beyond that statutory deadline of
six months and, therefore, was untimely. Id.
               Petitioner then appealed to the Board of Finance and Revenue, which,
by order dated June 8, 2016, denied Petitioner’s appeal for failure to file a timely
petition for refund. Stip., ¶¶ 12-13. The Board of Finance and Revenue rejected
Petitioner’s argument that the Department issued its assessment pursuant to an audit,
and that, therefore, Section 3003.1(b) of the Tax Reform Code2 applied, pursuant to

      1
        Act of March 4, 1971, P.L. 6, as amended, 72 P.S. §10003.1(d). Section 3003.1 was
added by Section 14 of the Act of July 1, 1985, P.L. 78.
      2
          Section 3003.1(b) provides:

               The [D]epartment may grant a refund or credit to a taxpayer for all
               tax periods covered by a departmental audit. If a credit is not granted
               by the [D]epartment in the audit report, the taxpayer must file a
               petition for refund for taxes paid with respect to the audit period
                                                 2
which Petitioner had to file a petition for refund within three years of actual payment
of the tax. 72 P.S. §10003.1(b). Stip., Ex. D at 1-2. The Board of Finance and
Revenue determined Petitioner could not use Section 3003.1(b) to extend the six-
month period in which to timely file a petition for refund. Consequently, the Board
of Finance and Revenue concluded that the Board of Appeals properly dismissed
Petitioner’s petition for refund. Id.
               Petitioner then filed a petition for review with this Court,3 seeking
review of the Board of Finance and Revenue’s opinion and order.4 Stip., ¶ 14.
Petitioner again asserts that his appeal to the Board of Appeals was timely.
Petitioner’s Brief at 8. Petitioner contends that Section 3003.1(b) of the Tax Reform
Code allows a taxpayer three years to file a petition for refund if the refund period
at issue was subject to an audit by the Department. Petitioner’s Brief at 8. Petitioner
contends that the Department activities constitute an audit. Id. Petitioner also asserts
various constitutional violations and, as a result, requests relief pursuant to 42 U.S.C.
§ 1983 and attorneys’ fees pursuant to 42 U.S.C. § 1988. Petitioner’s Brief at 8.



               within six months of the mailing date of the notice of assessment,
               determination or settlement or within three years of actual payment
               of the tax, whichever is later.

72 P.S. §10003.1(b).
       3
         Although our review of the Board of Finance and Revenue’s order is addressed to our
appellate jurisdiction, we essentially function as a trial court and review the Board of Finance and
Revenue’s decision de novo. Quest Diagnostics Venture, LLC v. Commonwealth, 119 A.3d 406,
410 n.4 (Pa. Cmwlth. 2015), aff’d 148 A.3d 448 (Pa. 2016) (Mem.).
       4
         On April 30, 2019, the Department filed an application for summary relief, which this
Court denied, concluding that there was an outstanding issue of material fact as to whether an audit
occurred. Torres v. Commonwealth (Pa. Cmwlth., No. 567 F.R. 2016, filed June 20, 2019) (single
judge op.).

                                                 3
             In response, the Department argues that Petitioner’s petition for refund
was untimely, as it had to be filed within six months of actual payment because the
petition for refund concerns an amount paid as a result of an assessment, not an audit.
Department’s Brief at 9-10; see id. at 15-17. Additionally, the Department argues,
assuming arguendo, the Department’s activities constituted an audit and that,
therefore, the assessment resulted from an audit, this does not change the result
because Section 3003.1(b) of the Tax Reform Code on which Petitioner relies does
not apply to the circumstances here. See Department’s Brief at 11-14. Finally, the
Department responds that Petitioner has waived the constitutional issues for failure
to comply with several Pennsylvania Rules of Appellate Procedure and for failure to
develop any argument on these issues, thereby precluding this Court’s review. Id.
at 18-19.
             The general rule and time limitation for filing a petition for refund is
found in Section 3003.1(a) of the Tax Reform Code, 72 P.S. § 10003.1(a). This
Section states, in relevant part:


             (a) For a tax collected by the Department . . ., a taxpayer
                 who has actually paid tax, interest or penalty to the
                 Commonwealth or to an agent or licensee of the
                 Commonwealth authorized to collect taxes may
                 petition the Department . . . for refund or credit of the
                 tax, interest or penalty. Except as otherwise provided
                 by statute, a petition for refund must be made to the
                 [D]epartment within three years of actual payment of
                 the tax, interest or penalty.

72 P.S. §10003.1(a) (emphasis added). In the case of amounts paid as a result of an
assessment, Section 3003.1(d) of the Tax Reform Code applies. That Section
provides:

                                          4
                (d) In the case of amounts paid as a result of an
                assessment, determination, settlement or appraisement, a
                petition for refund must be filed with the [D]epartment
                within six months of the actual payment of the tax.

72 P.S. § 10003.1(d).
                The Tax Reform 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). “Compliance with the time limitation in the
Tax Reform Code is ‘an absolute condition to obtaining a refund.’” Id. at 410
(quoting Phila. Gas Works ex rel. City of Phila. v. Commonwealth, 741 A.2d 840,
846 (Pa. Cmwlth. 1999)). Additionally, the “[t]he burden is on the petitioner to
present evidence sufficient to prove that a petition is timely filed.” 61 Pa. Code §
7.14(b)(1).
                The term “audit” is not defined in the Tax Reform Code. See generally
Section 201 of the Tax Reform Code, 72 P.S. § 7201. The term “audit” is defined
in Webster’s Third New International Dictionary as “a formal or official
examination and verification of books of account”; “a methodical examination and
review of a situation or condition . . . concluding with a detailed report or findings”;
and “the final report following a formal examination of books of account.”5
Webster's Third New International Dictionary 143 (2002); see also In re Elk Cty.
Auditors, 903 A.2d 652 (Pa. Cmwlth. 2006) (adopting same dictionary definition of
“audit” where term was not defined in another statute).

        5
          It is a rule of statutory construction that where terms are not otherwise defined in a statute,
“[w]ords and phrases shall be construed according to their common and approved usage . . . .”
Section 1903 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903. We generally use
dictionaries as source material for determining the common and approved usage of a term. Gmerek
v. State Ethics Comm’n, 751 A.2d 1241, 1260 (Pa. Cmwlth. 2000), aff’d, 807 A.2d 812 (Pa. 2002).
                                                   5
               Here, Exhibit B to the joint stipulation of facts consists of the affidavit
of Tracy Hulstine (Hulstine), Acting Director of the Department’s Bureau of
Individual Taxes. The affidavit indicates that in her capacity as Director of the
Bureau of Individual Taxes, she has access to systems and records related to
Pennsylvania tax assessments. Stip., Ex. B, ¶ 3. The affidavit further attests that
based on Hulstine’s review of Departmental systems and records, the assessment
against Petitioner for the tax year 2005 was “generated by the Department’s Pass
Through Business Office using information obtained from the Internal Revenue
Service.” Id., ¶ 5. The affidavit also attests that the Department’s Bureau of Audits
was not involved in generating the assessment against Petitioner for the tax year
2005. Id., ¶ 6. Furthermore, the affidavit indicates that “no Departmental audit was
conducted to prepare the assessment against Petitioner for tax year 2005[,]” and
concludes that “no audit report was prepared with respect to the assessment for tax
year 2005.” Id., ¶¶ 7 & 8.
               Based on Hulstine’s affidavit, it is apparent that the Department
determined Petitioner’s tax liability by merely using information it obtained from
the Internal Revenue Service.             See Stip., Ex. B, ¶ 5.   Thereafter, using that
information, the Department issued a “Notice of Assessment” to Petitioner. Stip.,
Ex. A & Ex. B, ¶ 5. Although Petitioner has the burden of proof6 and argues an audit
took place, Petitioner has offered no evidence to demonstrate verification of, or a
formal examination of, books of account.               Additionally, Petitioner does not
challenge or address Hulstine’s affidavit.           Instead, Petitioner offers only his
counsel’s statement that he “is a tax practitioner and has undergone many audits of
this nature” and that the “Department of Revenue obtains records from the Internal

      6
          See 61 Pa. Code § 7.14(b)(1).

                                                6
Revenue Service and uses them to conduct an audits [sic] of the taxpayer’s return.”
Petitioner’s Brief at 8-9. These statements, however, are merely conclusory with no
supporting analysis and no citation to the record or applicable legal authority.
Further, Petitioner’s counsel’s statements are not evidence, and they are not
sufficient to sustain Petitioner’s burden. See Good Tire Serv. v. Workers’ Comp.
Appeal Bd. (Wolfe), 978 A.2d 1043, 1048 n.3 (Pa. Cmwlth. 2009) (stating counsel’s
assertions and arguments do not constitute evidence). Therefore, we agree with the
Board of Finance and Revenue’s conclusion that the Department did not conduct an
audit; “it merely compared its records to that of another taxing agency and issued an
assessment notice.” Stip., Ex. D at 2.
             Because the Department did not conduct an audit, Petitioner cannot rely
on Section 3003.1(b); rather, Section 3003.1(d) applies here. As such, Petitioner
needed to file his petition for refund within six months of actual payment. There is
no dispute that Petitioner made actual payment of the assessment on September 3,
2014, and that he did not file his petition for refund until October 29, 2015, over a
year after actual payment. See Stip., ¶¶ 9-10. Accordingly, his petition for refund
was untimely.
             Finally, we agree with the Department that Petitioner has waived his
constitutional claims. Petitioner has failed to present these claims in his “Statement
of Questions Involved” portion of his brief. See Pa.R.A.P. 2116(a) (stating “[n]o
question will be considered unless it is stated in the statement of questions involved
or is fairly suggested thereby”). Additionally, Petitioner does not develop any
argument with respect to his conclusory assertions and offers no citation to the record
(the joint stipulation of facts and exhibits) or applicable legal authority.       See
Petitioner’s Brief at 9-10. This Court has held, “[w]hen issues are not properly raised


                                          7
and developed in briefs, when the briefs are wholly inadequate to present specific
issues for review, a court will not consider the merits thereof.” Commonwealth v.
Feineigle, 690 A.2d 748, 751 n.5 (Pa. Cmwlth. 1997); see Pa.R.A.P. 2119(a)
(stating, “[t]he argument shall be divided into as many parts as there are questions
to be argued; and shall have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent”). “Mere issue
spotting without analysis or legal citation to support an assertion precludes our
appellate review of [a] matter.” Commonwealth v. Spontarelli, 791 A.2d 1254, 1259
n.11 (Pa. Cmwlth. 2002). Therefore, we decline to address these issues.
            Accordingly, we affirm.



                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge




                                         8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Epifanio Torres,                         :
                   Petitioner            :
                                         :
            v.                           :
                                         :
Commonwealth of Pennsylvania,            :   No. 567 F.R. 2016
                Respondent               :



                                    ORDER


            AND NOW, this 28th day of February, 2020, the order of the Board of
Finance and Revenue, dated June 8, 2016, is AFFIRMED. Unless exceptions are
filed within thirty (30) days pursuant to Pa.R.A.P. 1571(i), this Order shall become
final.



                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge
