Wirth v. Commonwealth , 626 Pa. 124 ( 2014 )

Chief Justice CASTILLE,

concurring.

I join the Majority Opinion with the exception of Part 111(A), which is the section of the decision prompting Mr. Justice Saylor’s Dissenting Opinion. On that distinct issue, I agree with much of Mr. Justice Saylor’s dissent, albeit I ultimately concur in the result reached by the Majority-

Most significantly for present purposes, I agree with Justice Saylor’s disagreement with the Court’s holding that the question of whether the tax event at issue (the foreclosure upon a nonrecourse loan) results in an “amount realized” or “[n]et gains or income from the disposition of property” under 72 P.S. § 7303(a)(3) is resolvable as a matter of “plain language” statutory interpretation. There is no express language in the statute or implementing regulation that explicitly covers the type of “gain” involved here;¹ and, moreover, the Court’s approval of the importation of a nonplain-language approach from a federal taxing regime involving different statutory language, as reflected in Commissioner of Internal Revenue v. Tufts, 461 U.S. 300, 103 S.Ct. 1826, 75 L.Ed.2d 863 (1983), obviously betrays that there is more at work than what the statute plainly states. Thus, I cannot join in the Majority’s assertion that “the Tufts rule is encompassed within the plain meaning of ‘disposition of real property’ as contemplated by Section 7303(a)(3) and [Section § 103.13].” Majority Op. at 841. Justice Saylor has ably laid out the countervailing complexity in his dissent, adding necessary context.

For my part, resolving the case as a matter of statutory construction, and having considered the competing concerns articulated in equally able fashion by Justice Saylor — encompassing, inter alia, separation of powers, considerations of policy with questions involving tax matters, the failure of the General Assembly to directly visit this particular issue, and the possible collateral consequences of our decision — in this close case offering no easy solution, I believe affirmance is less disruptive. The effect may be the same — i.e., approval of an approach aligned with Tufts, despite that decision’s flaws — but I believe it is important to candidly recognize the necessary complexity, as Justice Saylor does. Finally, I join in Justice Saylor’s modest call to the General Assembly to address the issue and provide clearer guidance.

Justice STEVENS joins this concurring opinion.