American Rest. & Lunch Co. v. Glander, 30660.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: MATTHIAS
• Citation: 147 Ohio St. 147,70 N.E.2d 93
• Docket Number: No. 30660.,30660.
• Decision Date: 13 November 1946

147 Ohio St. 147
70 N.E.2d 93

No. 30660.

Supreme Court of Ohio,
AMERICAN RESTAURANT & LUNCH CO.
v.
GLANDER, Tax Com'r.

Nov. 13, 1946.

[70 N.E.2d 93]

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.

Proceeding by Glander, Tax Commissioner, against the American Restaurant & Lunch Company, wherein there was an assessment of a sales tax and penalty amounting to $2,987.59. From a decision of the Board of Tax Appeals, 17 Ohio Supp. 119, dismissing the appeal of the taxpayer, the taxpayer appeals.-[Editorial Statement.]

Decision affirmed.

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

[70 N.E.2d 94]

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...