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 
2

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 
3

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 sixmonth 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,3seeking 

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.). 
4

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:
5

(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).
6

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).
7

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 
8

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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Epifanio Torres, :

Petitioner :

:

v. :

:

Commonwealth of Pennsylvania, : No. 567 F.R. 2016

Respondent :

O R D E R

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