David Dunn v. Edgar L. Lindley

• Decision Date: 31 December 1981
• Docket Number: 81-LW-0749,43576
• Parties: DAVID DUNN APPELLANT, v. EDGAR L. LINDLEY, ET AL. APPELLEES.
• Court: Ohio Court of Appeals

DAVID DUNN APPELLANT, v. EDGAR L. LINDLEY, ET AL. APPELLEES.

No. 43576.

81-LW-0749 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

December 31, 1981

APPEAL FROM BOARD OF TAX APPEALS COURT No. 80-F-279.

For plaintiff-appellant: Richard E. Gibbons.

For defendant-appellees: Barbara E. Vest, 30, East Broad Street Columbus, Ohio 43215; Matthew Hatchadorian, Auditor, Cuyahga County; William D. Keip, Director, Office of Management and Budget, 30 E. Broad Street, Columbus, Ohio 43215.

JOURNAL ENTRY AND OPINION

PARRINO J.

This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Board of Tax Appeals Court, and was argued by counsel for the parties; and upon consideration, the court finds no error prejudicial to the appellant and therefore the judgment of the Board of Tax Appeals Court is affirmed. Each assignment of error was reviewed and upon review the following disposition made:

David Dunn, plaintiff-appellant, here appeals from the decision of the Board of Tax Appeals of February 4, 1981, affirming the final order of the Tax Commissioner of June 9, 1980, which denied appellant's request for remission of interest and of fifty percent of the penalties paid on sales tax assessments.

At the hearing before the Board, plaintiff testified that outstanding tax liens existed for sales taxes levied upon a dental supply corporation which he headed in 1975 (Tr. 6-7). The record shows there to have been three sales tax assessments dating from June 7, 1974, March 8, 1977, and February 15, 1977, in the total amount of $4,854.65, with interest owed as of July 13, 1979, of $1,101.58 and penalties of $728.20.

Plaintiff admitted that he was responsible for paying off the assessments (Tr. 8, 14) and we shall therefore assume that he was not acting as a volunteer or pursuant to a moral, as opposed to a legal, obligation in this matter.

It appears that, the assessments having been reduced to liens as provided by law, the Attorney General's Office was attempting to enforce them.

Plaintiff, desiring a release from the liens, contacted Sam Weiss, a Cleveland attorney acting as special counsel to the Attorney General. In a letter to Mr. Weiss, dated September 30, 1976, Steven Hatcher, Assistant Attorney General, Claims Section, advised him with respect to the assessments as follows:

"Pursuant to your letter of August 18, 1976, please be advised that this office is willing to waive the interest charges on the above captioned account, but it is very unlikely that the Department of Taxation will cancel the entire penalty. If Mr. Dunn would pay at least 50% of the penalty, there would be a greater likelihood that the offer of compromise would be accepted."

A copy of this letter was sent by Mr. Weiss to plaintiff with a letter dated October 5, 1976, which stated in part:

"It has been my experience that the only way to proceed with the offer of compromise is to submit a Certified or Bank check or Money Order payable to the 'Attorney General of Ohio' in the sum of $5,218.75 and mail to the undersigned with the condition expressed in the letter that if the offer is not acceptable to the Tax Commissioner, the check is to be returned."

On July 13, 1979, Mr. Weiss sent another letter to plaintiff informing him of the total amount of the three tax assessments now owed and further stating as follows:

"In order that I may obtain immediate Releases of the Judgments against you, it will be necessary for you to deliver to me a certified or bank check or money order payable to the 'Attorney General of Ohio' in the sum of $6,684.43.

"Subsequent to this payment, you will then be in a position to file an application of the refund of the interest and one-half of the penalty. As hereinabove indicated, the amount of the interest is $1,101.58 and one-half of the penalty is $364.10. I will advise you as to the procedure concerning the refund.

"I believe I have previously informed you of the fact that the procedure in these matters is as follows: The Attorney General will recommend to the Tax Commissioner of the State of Ohio that the refund be allowed, and it usually takes at least ninety days before the Tax Commissioner responds.

"When I forward your check to the Attorney General, I will indicate that the payment is upon the condition that the refund will be granted and, if not, that the amount of your check should be returned to you."

Plaintiff submitted a check for the full amount to Mr. Weiss who forwarded it to Mr. Hatcher. Mr. Weiss did not indicate that the check was submitted on condition that a refund be granted but refund forms for this purpose were requested. In a return letter, Mr. Hatcher advised that:

"It is unlikely that they [Dept. of Taxation] will consider a refund of any money on a claim that has been paid in full. Therefore, it is my opinion that it would be a waste of time and money for the assessee to pursue a refund."

No refund was given and plaintiff requested and received a hearing before the Tax Commissioner who, by journal entry dated June 9, 1980, held as follows:

"The record discloses no agreements which have been made which would require the Tax Commissioner to grant a refund. The Tax Commissioner may only refund amounts of sales tax paid illegally or erroneously or paid on an illegal or erroneous assessment. There has been no evidence presented that either assessment 7408924 or the payment of that assessment was illegal or erroneous. The claim for refund must be denied."

On appeal to the Board of Tax Appeals, the Board found that the letter of September 30, 1976 "was not an offer of compromise" but rather a statement of what the Claims Section of the Attorney General's Office would be able to offer. It further held that the state did not offer or accept a compromise, that there is no authority for the Tax Commissioner to refund sales taxes properly and legally assessed, and that plaintiff was in fact asserting estoppel which cannot legally lie against the Tax Commissioner.

Appellant assigns a single error on appeal.

"WHERE A TAXPAYER, IN RESPONSE TO AN OFFER OF COMPROMISE FROM THE OFFICE OF THE ATTORNEY GENERAL ON UNPAID STATE SALES TAX, AGREES TO THE OFFERED COMPROMISE, PAYS THE COMPROMISED AMOUNT IN A LUMP SUM ASSESSMENT UPON AN AGREEMENT THAT THE DIFFERENCE BETWEEN THE ASSESSED AMOUNT AND THE COMPROMISED AMOUNT WILL BE REFUNDED TO THE TAXPAYER, THE TAX COMMISSIONER'S FAILURE TO REFUND SAID AMOUNT CONSTITUTES A BREACH OF CONTRACT

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