Abex Corp. v. Kosydar
| Decision Date | 27 June 1973 |
| Docket Number | No. 73-122,73-122 |
| Citation | 64 O.O.2d 8,298 N.E.2d 584,35 Ohio St.2d 13 |
| Parties | , 64 O.O.2d 8 ABEX CORP., Appellant, v. KOSYDAR, Tax Commr., Appellee. |
| Court | Ohio Supreme Court |
Alexander, Ebinger, Holschuh, Fisher & McAlister, Lloyd E. Fisher, Jr., and Thomas P. Michael, Columbus, for appellant.
William J. Brown, Atty. Gen., and Dwight C. Pettay, Jr., Columbus, for appellee.
The basis for the dismissal by the Board of Tax Appeals was that the December 1, 1971, letter failed to comply with the mandatory requirements of R.C. 5717.02; and that, therefore, the board lacked jurisdiction of the matter. The board found that:
'* * * an appellant must strictly pursue its (R.C. 5717.02) mandatory requirements if he would confer jurisdiction upon the Board of Tax Appeals to review his cause; among which is that he 'shall * * * specify the error or errors therein complained of' in his notice of appeal.'
The board further noted that it '* * * has consistently disregarded all errors set forth in argument and briefs save and except such error or errors as are specified in the notice of appeal.' The board then found that 'the appellant is now interjecting other later claimed errors which are not complained of in their notice of appeal to this board, and held decisive of the cause then under review.'
In support of its dismissal, the board quotes from two decisions by this court which required that notices of appeal to the board must specify the errors complained of. American Restaurant & Lunch Co. v. Glander (1946), 147 Ohio St. 147, 70 N.E.2d 93; Queen City Valves v. Peck (1954), 161 Ohio St. 579, 120 N.E.2d 310.
While the majority of this court agrees that the notice of appeal must specify the errors complained of, that majority is of the view that appellant has sufficiently complied with that requirement.
The primary issue which appellant sought to bring before the Board of Tax Appeals was whether the appellee applied the correct rate in depreciating equipment acquired used. In this connection, it is noted that appellant's letter apprised the board and the appellee that appellant protested the increased valuation of its property predicated upon the application of an annual depreciation rate of five percent. Furthermore, the last paragraph of that letter indicated the relief sought-a rescission of the appellee's additional assessment.
In determining whether those averments are specific complaints of error, this court looks to American Restaurant & Lunch Co. and Queen City Valves, supra.
In American Restaurant & Lunch Co., the notice merely alleged 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.'
While that notice of appeal certainly advanced a substantial number of legal propositions, it in no way...
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...the most part, been completed as requested' (is) * * * not aptly phrased." Nevertheless, appellant would rely on Abex Corp. v. Kosydar (1973), 35 Ohio St.2d 13, 298 N.E.2d 584, which considered whether a notice of appeal respecting a depreciation error met the specificity standard of R.C. 5......
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