DocketNumber: No. 2345 C.D. 1985
Citation Numbers: 101 Pa. Commw. 431, 516 A.2d 827
Judges: Barry, Colins, Craig, Doyle, MacPhail, Palladino
Filed Date: 10/22/1986
Status: Precedential
Modified Date: 6/24/2022
Opinion by
Presently before us is a motion for partial summary judgment in which the Department of Revenue (Department) seeks a determination as to whether it can compel Bloomingdales By Mail, Ltd. (BBM) to provide the Department with mail order transactional sales data concerning BBMs Pennsylvania customers who have purchased items subject to the Pennsylvania use tax and allow the Department to examine BBMs books and records to ascertain taxable sales made to Pennsylvania residents. Also before us is a motion to quash the Departments administrative writs with which it seeks to obtain this data.
At the core of this dispute is the Departments attempt to establish that BBM is “maintaining a place of business” in Pennsylvania pursuant to Section 237(b) of the Tax Reform Code of 1971, (Code) Act of March 4, 1971, P.L. 6, as amended, 72 P.S. §7237(b). If, in feet, BBM is “maintaining a place of business” within the Commonwealth as that term is defined in Section 201(b) of the Code, 72 P.S. §7201(b), BBM must collect and remit Pennsylvania use taxes pursuant to Section 237.
The Department has moved for partial summary judgment in this matter only on count 4 of its action; this count relates to the Departments attempts to compel BBM, via the use of its administrative writs, to release its transactional sales data to the Department. In an attempt to gain this information the Department on April 4, 1986 served its writs in Virginia and Ohio seeking to compel the presence of individuals allegedly associated with BBM and further seeking production of BBMs transactional sales data. BBM has moved to quash the writs contending that the Department lacked jurisdiction to compel the presence of witnesses and the production of documents which are outside the Commonwealth. The Department has moved for summary judgment on the issue of its right to acquire the data. In the present posture of this case there have been no hearings on whether BBM is maintaining a business within the Commonwealth nor have there been any stipulated facts from which such a determination could
As our state supreme court observed in Commonwealth ex rel. Margiotti v. Orsini, 368 Pa. 259, 263, 81 A.2d 891, 893 (1951):
The law is well settled that the power of subpoena which formerly was exclusively a judicial power, may now be granted to non-judicial bodies, commissions, agencies or officials by statute, but the power and the extent of the power is to be determined in each case by the express statutory grant.
(Emphasis in original). Moreover it must be kept in mind that agencies are creatures of statute and cannot exercise powers not explicitly given them by the legislature. Department of Environmental Resources v. Butler
A motion for summary judgment may be granted only when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. 1412 Spruce Inc. v. Pennsylvania Liquor Control Board, 70 Pa. Commonwealth Ct. 501, 453 A.2d 382 (1982), affirmed, 504 Pa. 394, 474 A.2d 280 (1984). Having held that as a matter of law the Departments subpoena power does not extend beyond the borders of the Commonwealth, L.L. Bean, the Departments motion for summary judgment must be denied and the writs quashed.
Order
Now, October 22, 1986, the Departments motion for summary judgment is denied and the writs issued by the Department are hereby quashed.
President Judge Crumlish did not participate in the decision in this case.
The pertinent Lets which are relevant to a determination as to whether BBM is maintaining a place of business in Pennsylvania, are vigorously contested in the pleadings. Hence, we will not. even attempt to recite the myriad contradictory allegations pertaining to this issue. Cf. L.L. Bean, Inc. v. Department of Revenue, 101 Pa. Commonwealth Ct. 435, 516 A.2d 820 (1986).