Akron Standard Div. of Eagle-Picher Industries, Inc. v. Lindley, EAGLE-PICHER
| Decision Date | 02 May 1984 |
| Docket Number | No. 83-1107,EAGLE-PICHER,83-1107 |
| Citation | 11 OBR 9,11 Ohio St.3d 10,462 N.E.2d 419 |
| Parties | , 11 O.B.R. 9 AKRON STANDARD DIVISION OFINDUSTRIES, INC., Appellant, v. LINDLEY, Tax Commr., Appellee. |
| Court | Ohio Supreme Court |
Frost & Jacobs, Michael F. Haverkamp and Daniel V. Koppenhafer, Cincinnati, for appellant.
Anthony J. Celebrezze, Jr., Atty. Gen., Mark A. Engel and Christine Mesirow, Asst. Attys. Gen., for appellee.
Syllabus by the Court
The verification requirement in R.C. 5739.13 for sales and use tax reassessment petitions is non-jurisdictional.
In April 1980, appellant, Akron Standard Division of Eagle-Picher Industries, Inc., timely filed a petition for sales and use tax reassessment with appellee, Edgar L. Lindley, Tax Commissioner. The signature of James G. Baird, appellant's Director of Taxes, appearing on the petition, was not verified under oath as required by R.C. 5739.13.
In September 1980, the commissioner dismissed the petition finding that he was without jurisdiction to consider the petition due to the lack of verification. A notice of appeal was timely filed with the Board of Tax Appeals. Attached to the notice of appeal was an affidavit by Baird indicating that the signature on the petition for reassessment filed with the commissioner was his. The Board of Tax Appeals affirmed the decision of the commissioner.
The cause is now before this court upon an appeal as of right. LOCHER, Justice.
The sole issue presented in this appeal is whether the verification requirement in R.C. 5739.13 1 for sales and use tax reassessment petitions is jurisdictional. We hold that it is not jurisdictional, and thus reverse the decision of the Board of Tax Appeals.
The board found this court's decision in American Restaurant & Lunch Co. v. Glander (1946), 147 Ohio St. 147, 70 N.E.2d 93 , to be dispositive of the controversy herein. Paragraph one of the syllabus in American Restaurant reads:
"Where a statute confers the right of appeal, adherence to the condition thereby imposed is essential to the enjoyment of the right conferred."
The taxpayer in American Restaurant failed to include, as required by statute, the original assessment order of the commissioner in his notice of appeal to the board. The appeal was dismissed by the board for want of jurisdiction.
The commissioner argues in the case at bar that the failure of appellant to satisfy the verification requirement similarly necessitates dismissal. The commissioner and the board construe the holding in American Restaurant too broadly, however. 2 Not included in the syllabus of American Restaurant was the following statement in the opinion at page 150, 70 N.E.2d 93:
"This court has heretofore held * * * that substantial compliance with these mandatory requirements constitutes a condition precedent to the right to be heard, upon appeal, by the Board of Tax Appeals and that a failure to comply therewith warrants the dismissal thereof by the Board of Tax Appeals." (Emphasis added.)
The "substantial compliance" test was applied in the two cases cited by this court in American Restaurant as support for its decision: Kinsman Square Drug Co. v. Evatt (1945), 145 Ohio St. 52, 60 N.E.2d 668 ; and Dayton Rental Co. v. Evatt (1945), 145 Ohio St. 215, 61 N.E.2d 210 . We find this test to be the proper method of determining whether a reassessment petition has met the jurisdictional threshold.
The lack of a verified signature in a reassessment petition does not prevent the attachment of jurisdiction by an otherwise satisfactory filing, since substantial compliance with the requirements of the statute has taken place. The verification requirement is to be distinguished from the requirement that a notice of appeal be filed within thirty days of assessment, and also from the requirement that the order of the commissioner be included in the notice of appeal. The latter two requirements are essential in that they run to the core of procedural efficiency. The thirty-day requirement is an appellate statute of limitations, while the inclusion requirement litigated in American Restaurant gives notice of the substance of the appeal. Failure to comply fully with either of these requirements properly leads to dismissal of the appeal, since substantial compliance has not occurred. American Restaurant, supra, paragraph two of the syllabus; Lee Jewelry Co. v. Bowers (1955), 162 Ohio St. 567, 568, 124 N.E.2d 415 ; Hafner & Sons v. Lindley (1979), 58 Ohio St.2d 130, 131, 388 N.E.2d 1240 ; Leiphart Lincoln-Mercury, Inc. v. Bowers (1958), 107 Ohio App. 259, 265-266, 158 N.E.2d 740 . The verification requirement serves no such essential purpose, however, and thus is not a jurisdictional prerequisite.
This case differs slightly from Hunt v. Rohrbaugh, Inc. (1960), 171 Ohio St. 92, 168 N.E.2d 299 , where this court held that the verification requirement for pre-Civil Rule complaints was non-jurisdictional. A statute expressly permitted the filing of an amendment to correct the deficiency in Hunt. Here, there is no similar statute covering the reassessment petition. Implicit in the Hunt decision, however, was the finding that a verification omission should not be a jurisdictional bar.
Accordingly, the decision of the Board of Tax Appeals is reversed and the cause is remanded for a determination as to the merits of the petition.
Decision reversed and cause remanded.
Because the majority of this court misconstrues the authority upon which it relies in reaching its result in this case I must respectfully dissent.
Appellant, Akron Standard, argues, and the majority accepts, that substantial compliance with the statutory requirements is all that is necessary in order to petition for reassessment. In this view, the holding of American Restaurant & Lunch Co. v. Glander (1946), 147 Ohio St. 147, 70 N.E.2d 93 , was nothing more than a restatement of prior cases applying the substantial compliance test. Indeed, the majority even quotes a paragraph from American Restaurant in support of this position.
Unfortunately, this argument misconstrues the syllabus of and analysis in American Restaurant. The passage upon which the majority sets such store is in no way an acceptance of the "substantial compliance" test. It is true that this court had previously held that substantial compliance with mandatory requirements was sufficient. However, in American Restaurant, requirements for notice of appeal, equally mandatory, were held to necessitate strict compliance. The statement quoted by the majority is expressly contradicted by the syllabus of American Restaurant which states:
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