Commonwealth v. England

74 Pa. D. & C.2d 489, 1976 Pa. Dist. & Cnty. Dec. LEXIS 159
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJune 8, 1976
Docketno. 75-6127-03-6
StatusPublished

This text of 74 Pa. D. & C.2d 489 (Commonwealth v. England) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. England, 74 Pa. D. & C.2d 489, 1976 Pa. Dist. & Cnty. Dec. LEXIS 159 (Pa. Super. Ct. 1976).

Opinion

BECKERT, J.,

Boyd England, respondent, has refused to honor a writ issued out of [490]*490the Office of the Secretary of Revenue of this Commonwealth, directing him to appear before Thomas J. Ryan, petitioner. Petitioner is a special investigator for the Commonwealth of Pennsylvania. The purpose of the writ, which was duly served on respondent, is to require testimony of respondent and to have him produce certain specified books, records and other data pertaining to a Vincent V. Roggio and three corporate entities. Petitioner has been assigned the examination of the Pennsylvania personal income tax liability of Vincent V. Roggio for the years 1971-73, inclusive.

Respondent was engaged in the accounting business, although he was not, and is not, a certified public accountant as that profession is defined in The C.P. A. Law of May 26, 1947, P.L. 318, sec. 1, 63 P.S. §9.1. The data sought by petitioner from respondent allegedly came into the latter’s possession during the course of respondent’s preparation of income tax returns for the aforementioned individual.

Respondent has refused to honor the writ, contending that the investigation being conducted by petitioner, Ryan, was for an improper purpose and unauthorized by statute, and that he (respondent) could not release the requested documents in the absence of authority from his taxpayer-client who is being investigated. At the request of the Commonwealth and Special Investigator Ryan, a rule was entered on respondent on August 4, 1975, to show cause why he should not produce the materials sought from him by use of the writ. He filed an answer and new matter, asserting the defenses set forth above.

Disposition of the petition to enforce writ of the Secretary of Revenue falls within Rule 209 of the [491]*491Rules of Civil Procedure. We find that the facts set forth in the depositions, along with the exhibits attached thereto, furnish us with ample basis for resolving the issues brought before us for argument, without need for a hearing, as was requested by the parties.

Petitioners, as authority for their claim that respondent should be judicially compelled to comply with the writ served upon him, have cited The Fiscal Code of April 9, 1929, P.L. 343, 72 P.S. §1602, and the Tax Reform Code of March 4, 1971, P.L. 6, as amended, 72 P.S. §7301, et seq. Article XVI of The Fiscal Code, of which section 1602 is a part, sets forth the inquisitorial powers of fiscal officers in this Commonwealth. Section 1602 itself is directed toward “examination and adjustment of public accounts and the collection of amounts due the Commonwealth.” While we find no definition in the code clarifying what is meant by the term “public account,” we believe that the legislature intended that term to be synonymous with the word “tax” or debts due the Commonwealth.

Subsection 1602(a) specifically refers to the power of the “Secretary of Revenue to settle or otherwise determine the amount of and collect taxes ...” after which the words “public account” seem to be used broadly in lieu of detailed specific mention of taxes or other types of debts owing to the Commonwealth. Such an all-inclusive use of that term has been historically recognized by the courts: Schoyer et al. v. Comet Oil & Refining Co., 284 Pa. 189, 130 Atl. 413 (1925); Wm. Wilson & Sons Silversmith Co.’s Estate, 150 Pa. 285, 24 Atl. 636 (1892). Accordingly, we conclude that the term “public account” as used in subsection 1602(a) of The Fiscal Code encompasses taxes im[492]*492posed under article III of the Tax Reform Act, 72 P.S. §7301, et seq.

Having established that the Department of Revenue is empowered to determine and collect taxes, we must now examine the statutory authority controlling the manner in which that power may be exercised. In addition to section 1602 of The Fiscal Code, our attention has been directed to section 361 of the Tax Reform Act of 1971, 72 P.S. §7355:

“The department, or any agent authorized in writing by it, is hereby authorized to examine the books, papers and records of any taxpayer or supposed taxpayer, and to require the production of a copy of his return as made to and filed with the Federal Government, if one was so made and filed in order to verify the accuracy of any return made, or if no return was made, to ascertain and assess the tax imposed by this article. Every such taxpayer or supposed taxpayer is hereby directed and required to give to the department or its duly authorized agent the means, facilities and opportunity for such examinations and investigations as are hereby provided and authorized. The department is hereby authorized to examine any person under oath concerning any income which was or should have been returned for taxation, and to this end may compel the production of books, papers and records and the attendance of all persons, whether as parties or witnesses, whom it believes have knowledge of such income. The procedure for such hearing or examination shall be the same as that provided by ‘The Fiscal Code’ relating to inquisitorial powers of fiscal officers.” (Emphasis supplied.)

Read together, the aforementioned statutes clearly empower the Secretary of Revenue to [493]*493examine any taxpayer’s books, papers and records, and to procure such person’s attendance, along with exhibition and delivery of relevant documents, by means of an appropriate writ. Neither limits the secretary to service of a summons upon the taxpayer being investigated, but rather authorizes examination of any persons who are believed necessary as witnesses or who are believed to have knowledge of the said taxpayer’s income. In the instant case, respondent appears to be such a person, inasmuch as he has admitted having prepared the taxpayer’s income tax returns and acknowledges that he possesses papers, documents and information relevant to an examination thereof.

While we have not been able to find any case law in this Commonwealth to support our conclusion that respondent should produce the records for the purpose now sought, we do note a similarity between the Tax Reform Act of 1971 (§7355) and the Federal statute authorizing the production and examination of books and records for tax purposes (Act of August 16, 1954, c. 736, 26 U.S.C. §7602, 68A Stat. 901), which Federal act also includes provisions similar to those found in section 1602 of our Fiscal Code (72 P.S. §1602) which, as stated, provided for compulsory production of “books, papers, records or other data” which may be relevant to the examination of a tax return.

As can well be imagined, the Federal courts have on numerous occasions dealt with the problem of involuntary production of records and testimony in the possession of accountants when dealing with Federal tax examinations (Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L. Ed. 2d 548 (1973); Donaldson v. United States, [494]*494400 U.S. 517, 91 S.Ct. 534, 27 L. Ed. 2d 580 (1971); United States v. Fisher, 500 F. 2d 683 (3rd Cir., 1974)), and have consistently held therein that the accountant’s records must be produced when a summons has been so issued.

Turning our attention to the problem of the alleged confidential privilege as asserted by respondent, we fail to find any support for his position.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Donaldson v. United States
400 U.S. 517 (Supreme Court, 1971)
Couch v. United States
409 U.S. 322 (Supreme Court, 1973)
Gariepy v. United States
189 F.2d 459 (Sixth Circuit, 1951)
Falsone v. United States
205 F.2d 734 (Fifth Circuit, 1953)
United States v. Berkowitz
355 F. Supp. 897 (E.D. Pennsylvania, 1973)
Himmelfarb v. United States
175 F.2d 924 (Ninth Circuit, 1949)
Schoyer v. Comet Oil & Refining Co.
130 A. 413 (Supreme Court of Pennsylvania, 1925)
Wm. Wilson & Son Silversmith Co.'s Estate
24 A. 636 (Supreme Court of Pennsylvania, 1892)
United States v. Bowman
358 F.2d 421 (Third Circuit, 1966)
United States v. Fisher
500 F.2d 683 (Third Circuit, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
74 Pa. D. & C.2d 489, 1976 Pa. Dist. & Cnty. Dec. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-england-pactcomplbucks-1976.