H. C. Albring Co. v. Kosydar

• Decision Date: 08 June 1976
• Docket Number: No. 75-1215,75-1215
• Citation: 348 N.E.2d 703,46 Ohio St.2d 343
• Parties: , 75 O.O.2d 401 H. C. ALBRING CONPANY, Appellant, v. KOSYDAR, Tax Commr., Appellee.
• Court: Ohio Supreme Court

Page 343

46 Ohio St.2d 343

348 N.E.2d 703, 75 O.O.2d 401

H. C. ALBRING CONPANY, Appellant, v. KOSYDAR, Tax Commr., Appellee.

No. 75-1215.

Supreme Court Of Ohio.

June 8, 1976.

Appellant, H. C. Albring Company, is a wholesaler of cigarettes, candy, tobacco, and cigars.

Following an audit of appellant's records for the period January 1, 1972, through December 31, 1973, the Tax Commissioner issued a cigarette tax assessment resulting from the disallowance of appellant's claim for exemption for sales of unstamped cigarettes to the military and a determination or a deficiency in the number of tax stamps purchased.

While conducting the audit, the commissioner sompared appellant's purchase records and reports with the sales summary reports of cigarette manufactures, Finding that the manufacturers, in the aggregate, reported a greater volume of sales to appellant than the purchases reported by appellant, the commissioner imposed the tax on the higher reported sales.

Upon appeal, the Board of Tax Appeals affirmed the tax deficiency arising from sales allegedly made to military personnel, but modified the tax deficiency in the number of stamps purchased, with a concomitant reduction in the penalty thereon.

The cause is now before this court upon an appeal as a matter of right.

Christy & Stehle Co., L. P. A., and William L. Stehle, Columbus, for appellant.

William J. Brown, Atty. Gen., and John C. Duffy, Jr., Columbus, for appellee.

PER CURIAM.

Appellant contends that the board erroneously refused to allow evidence to refute the alleged hearsay information used by the Tax Commissioner in conducting his audit, i. e., the cigarette manufacturers' reports.

This court, in Sharwell Tobacco Co: v. Bowers (1962), 174 Ohio St. 105, 186 N.E.2d 845, affirmed the position of the Board of Tax Appeals that where a wholesale dealer has failed to comply with the mandate of R.C. 5743.071, that he 'maintain complete and accurate records,' the Tax Commissioner, pursuant to R.C. 5743.081, may 'make an assessment * * * upon any information in his possession.'

This court concludes from the record before it, as did the board, that the commissioner properly considered the manufacturers' reports in making the assessment herein.

Appellant contends further that the board incorrectly decided the issue of whether the Department of Taxation, by its long-established practice of allowing exemptions on appellant's cigarette sales to the military, is now estopped from taxing appellant on sales claimed to be identical.

It is...