938 N.E.2d 342 (Ohio 2010), 2009-2217, Ceccarelli v. Levin

Docket Nº:2009-2217.
Citation:938 N.E.2d 342, 127 Ohio St.3d 231, 2010-Ohio-5681
Opinion Judge:PER CURIAM.
Party Name:CECCARELLI, Appellant, v. LEVIN, Tax Commr., Appellee.
Attorney:Carlile, Patchen & Murphy, L.L.P., Leon Friedberg, Columbus, and Robert T. Castor, for appellant. Richard Cordray, Attorney General, and Barton A. Hubbard and Sophia Hussain, Assistant Attorneys General, for appellee.
Judge Panel:BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O'CONNOR, O'DONNELL, LANZINGER, and CUPP, JJ., concur.
Case Date:November 24, 2010
Court:Supreme Court of Ohio
 
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Page 342

938 N.E.2d 342 (Ohio 2010)

127 Ohio St.3d 231, 2010-Ohio-5681

CECCARELLI, Appellant,

v.

LEVIN, Tax Commr., Appellee.

No. 2009-2217.

Supreme Court of Ohio.

November 24, 2010

Submitted Oct. 13, 2010.

Page 343

Carlile, Patchen & Murphy, L.L.P., Leon Friedberg, Columbus, and Robert T. Castor, for appellant.

Richard Cordray, Attorney General, and Barton A. Hubbard and Sophia Hussain, Assistant Attorneys General, for appellee.

PER CURIAM.

{¶ 1} This is an appeal from a decision of the Board of Tax Appeals (" BTA" ) that affirmed an assessment against the appellant, Jack Ceccarelli, of motor-fuel-tax liabilities reported but not fully paid for April, May, June, and August 2000. Ceccarelli was assessed not as a motor-fuel dealer himself, but rather as a " responsible party" by virtue of his status as owner and president of Restructure Petroleum Marketing Services, Inc. (" RPMS" ). RPMS itself had previously been assessed for the unpaid taxes, which amounted to $396,565.16. The tax commissioner found that Ceccarelli was a responsible party who was liable to pay the amount assessed against the corporation because he was the indirect owner and the president of RPMS.

{¶ 2} Before the BTA, Ceccarelli did not contest his status as a responsible party under the statute, but instead asserted that the assessment was barred because it had been issued after the statutory four-year limitation period expired. The tax commissioner argued that the limitation statute in question, R.C. 5735.12, applies to assessments issued against motor-fuel dealers, but not to assessments issued against " responsible parties" who were their officers or employees. The BTA agreed with the commissioner's position and affirmed the assessment against Ceccarelli.

{¶ 3} On appeal, Ceccarelli again contends that the four-year limitation also applies to assessments against employees or officers of motor-fuel dealers who qualify as responsible parties. We agree, and we therefore reverse the decision of the BTA.

Facts

{¶ 4} Underlying the assessment against Ceccarelli in this case are four assessments previously issued against RPMS pertaining to motor-fuel taxes reported but not fully paid for April, May, June, and August 2000. Jack Ceccarelli was identified as corporate president of RPMS on filings with the office [127 Ohio St.3d 232] of the Ohio secretary

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of state and in correspondence with the Ohio Department of Taxation. The four months of unpaid taxes amounted to $396,565.16, finally totaling $665,797 after assessment of interest and penalties.

{¶ 5} RPMS had belatedly filed motor-fuel-tax returns for April, May, June, and August 2000 on July 7, December 19, September 18, and December 11, 2000, respectively. The commissioner issued his assessment against Ceccarelli as a responsible party on February 24, 2005-more than four years after the tax reports had been filed.

{¶ 6} The record is sparse, but Ceccarelli has not disputed the commissioner's findings of fact. The commissioner found that Ceccarelli was not only president of RPMS, but also " 100% owner of Restructure, Inc., who owned 100% of RPMS." The final determination also relied on filings and correspondence signed by Ceccarelli to establish that he " had the authority to exercise control of the corporation's fiscal responsibilities," a criterion for responsible-party liability under R.C. 5735.35(A).

Analysis

{¶ 7} The third paragraph of R.C. 5735.12(A) states: " No...

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