Taxation — Real estate transfer tax — Transfer by eminent domain proceedings — Municipalities — Ordinance — Act of June 25, 1947, P.L. 1145.
In this case stated in which it appeared that following a redevelopment authority resolution condemning certain real estate in plaintiff borough, the redevelopment authority entered into "proposal agreements" and "agreements in confirmation of condemnation proceedings"; and that plaintiff borough had adopted an ordinance (and plaintiff school district had passed a resolution) pursuant to the Act of June 25, 1947, P.L. 1145, as amended, imposing a tax on the transfer of real estate situate within the boundaries of the borough, it was Held that (1) the resolution of the redevelopment authority constituted the condemnation of the land and title then passed to the authority; (2) there was no "transfer of real property" within the meaning of the Act of 1947, P.L. 1145; and (3) the borough ordinance and the school board resolution did not impose a legally collectible tax upon the transactions in this case.
Mr. Justice COHEN filed a dissenting opinion.
OPINION PER CURIAM, November 13, 1962:
Judgments affirmed on opinion of Judge WALTER P. SMART, 28 Pa. D. C.2d 529.
DISSENTING OPINION BY MR. JUSTICE COHEN:
While I agree with the majority that no tax was incurred by the transactions in question, I am forced to dissent because of the procedure used by the taxpayer. A taxpayer who desires to challenge a deed transfer tax must either pay the tax and sue for refund — the payment of the tax permitting him to record his deed — or refuse to pay and await suit. He cannot, without putting the sum demanded in the public treasury, both gain the advantages of payment and also avoid the possibility of interest and penalty payments. I would, therefore, vacate the judgment entered by the court below.