Carstab Corp. v. Limbach

• Decision Date: 21 December 1988
• Docket Number: No. 87-1863,87-1863
• Citation: 532 N.E.2d 102,40 Ohio St.3d 89
• Parties: CARSTAB CORPORATION, Appellant, v. LIMBACH, Tax Commr., Appellee.
• Court: Ohio Supreme Court

Page 89

40 Ohio St.3d 89

532 N.E.2d 102

CARSTAB CORPORATION, Appellant, v. LIMBACH, Tax Commr., Appellee.

No. 87-1863.

Supreme Court of Ohio.

Submitted Oct. 18, 1988.

Decided Dec. 21, 1988

Frost & Jacobs, Dennis J. Barron and Larry H. McMillin, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Richard C. Farrin, for appellee.

PER CURIAM.

The sole question presented is whether an assessment is barred if it is not received by a taxpayer within the time limits provided in R.C. 5739.16 and 5741.16. For the reasons stated below, we hold that it is not so barred and affirm the BTA.

R.C. 5739.13 and 5741.13 authorize the commissioner to make sales and use tax assessments. However, R.C. 5739.16 and 5741.16 limit this authority. R.C. 5739.16(A), in pertinent part, provides:

"No assessment shall be made or issued against a vendor or consumer for any tax imposed by or pursuant to section 5739.02, 5739.021, 5739.023, 5739.026, or 5739.10 of the Revised Code more than four years after the return date for the period in which the sale or purchase was made, or more than four years after the return for such period is filed, whichever is later. This division does not bar an assessment:

" * * *

"(3) When the vendor or consumer and the commissioner waives [sic ] in writing the time limitation." ¹

Carstab argues that the phrase, "made or issued," must be interpreted to mean receipt of the assessment by the taxpayer. According to Carstab, the instant assessment is barred since it received the notice after the deadline. Thus, the meaning of this phrase is pivotal to Carstab's position.

Under R.C. 5739.13, 5741.13, and 5741.14, the commissioner may make assessments and must serve them upon the assessee personally or by registered mail. Also, under R.C. 5739.13 and 5741.14, the assessee has thirty days from when he is served to file a petition for reassessment.

R.C. 5703.05 contains the commissioner's general powers and duties. Division (H) empowers her to make all assessments authorized by law, and division (L) requires her to maintain a public journal in which she must keep a record of all actions taken by her relating to assessments and the reasons therefor. Accordingly, she "makes" an assessment when she journalizes it because this is the act that concludes her audit activity and by which she places the assessment on the public record.

Next, under R.C. 5739.13 and 5741.13, the commissioner must give written notice of the assessment to the assessee. She may serve it on the assessee personally or by registered or certified mail. This giving of notice is the "issuing" of the assessment contemplated in R.C. 5739.16 and 5741.16; that is, the commissioner "issues" notice of the assessment when she "gives" notice to the assessee.

In State, ex rel. Sherrick, v. Peck (1952), 158 Ohio St. 122, 48 O.O. 60, 107 N.E.2d 145, this court determined the point at which an assessee files a petition for reassessment with the commissioner. In paragraph two of the syllabus, this court held that a petition is filed, in the instance when the assessee chooses to file by certified mail, when the assessee deposits the "petition in a United States post office as registered mail with adequate postage and directed to the * * * Commissioner." We apply this holding to the present situation in which the commissioner...