American Restaurant & Lunch Co. v. Glander

• Decision Date: 13 November 1946
• Docket Number: 30660.
• Citation: 147 Ohio St. 147,70 N.E.2d 93
• Court: Ohio Supreme Court
• Parties: AMERICAN RESTAURANT & LUNCH CO. v. GLANDER, Tax Com'r.

70 N.E.2d 93

147 Ohio St. 147

AMERICAN RESTAURANT & LUNCH CO. v. GLANDER, Tax Com'r.

No. 30660.

Supreme Court of Ohio

November 13, 1946

Syllabus by the Court.

1. Where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred.

2. Appeal from a final determination of the Tax Commissioner to the Board of Tax Appeals is authorized by Section 5611 General Code (119 Ohio Laws, 48), which provides that such an appeal shall be taken by the filing of a written notice to that effect with the Board of Tax Appeals and Tax Commissioner within 30 days after notice of the tax assessment, reassessment, valuation, determination, finding computation or order by the Tax Commissioner, and which further provides that 'the notice of such appeal shall set forth or shall have attached thereto and incorporated therein by reference, a true copy of the notice sent by the commissioner to the taxpayer of the final determination complained of, and shall also specify the error or errors therein complained of.' Compliance with these specific and mandatory requirements governing the filing of such notice is essential to confer jurisdiction upon the Board of Tax Appeals.

3. Such notice of appeal filed within the 30-day limitation prescribed by Section 5611, General Code, may not be so amended after the expiration of such period as to comply with the other mandatory requirements of such section.

This case comes into this court on appeal from a decision of the Board of Tax Appeals.

The record discloses that on December 29, 1944, the Tax Commissioner made a sales tax assessment, including penalty, against the appellant (the taxpayer) in the sum of $2,987.59.

On January 29, 1945, the appellant filed with the Board of Tax Appeals the fillowing communication:

'The purpose of this letter is to furnish you the written notice required under General Code Section 5611 with reference to appeals from the final determination of the Tax Commissioner of Ohio, and to request a hearing upon said determination on appeal whereat said appellant may produce additional evidence. It is the desire of the appellant to have said hearing on appeal conducted, if possible, at Youngstown in Mahoning county.

'This appeal is taken on the ground that the decision of the Tax Commissioner is contrary to law; that it is unreasonable and unlawful; that it is not sustained by the evidence and is contrary to the evidence and that the said decision is against the weight of the evidence; that the assessment fixed by the Tax Commissioner is excessive, contrary to law and the evidence.

'This appeal is filed as of right under the provisions of General Code Section 5611.

'The Tax Commissioner rendered his decision under date of December 29, 1944, assessing appellant $2,597.90 and fixing a penalty of $389.69, making a total assessment of $2,987.59.'

On November 30, 1945, the appellant filed with the Board of Tax Appeals an application to amend the notice of appeal by adding thereto a copy of the notice sent by the Tax Commissioner to the appellant of the final determination complained of, which application was denied. The Board of Tax Appeals thereupon dismissed the appeal.

Thereafter the appellant perfected its appeal to this court and seeks a reversal of the decision of the Board of Tax Appeals.

Cross & Shane and Tom R. Bailey, all of Ashtabula, for appellant.

Hugh S. Jenkins, Atty. Gen., Joseph S. Gill, of Athens, and A. A. Cartwright, of Columbus, for appellee.

MATTHIAS Judge.

Appeal from a final determination of the Tax Commissioner to the Board of Tax Appeals is authorized by Section 5611, General Code, as amended, 119 Ohio Laws. 48, which provides in part as follows:

'Such appeals [from final determinations by the Tax Commissioner to the Board of Tax Appeals] shall be * * * taken by the filing of a written notice to that effect with the board of tax appeals and with the tax commissioner within thirty days after notice of the tax assessment, reassessment, valuation, determination, finding, computation or order, * * * by the tax commissioner, shall have been given or otherwise evidenced, as required by law. The notice of such appeal * * * shall set forth or shall have attached thereto and incorporated therein by reference, a true copy of the notice sent by the commissioner to the taxpayer of the final determination * * * complained of, and shall also specify the error or errors therein complained of.'

In order to perfect an appeal from the Tax Commissioner to the Board of Tax Appeals, it is, therefore, required that written notice to that effect shall be filed with the Board of Tax...