Ladas v. Peck, 33817

• Decision Date: 13 October 1954
• Docket Number: No. 33817,33817
• Citation: 122 N.E.2d 12,162 Ohio St. 159
• Parties: , 54 O.O. 397 LADAS et al., d/b/a Brass Rail Lunch, Appellants, v. PECK, Tax Com'r, Appellee.
• Court: Ohio Supreme Court

Page 159

162 Ohio St. 159

122 N.E.2d 12, 54 O.O. 397

LADAS et al., d/b/a Brass Rail Lunch, Appellants, v. PECK, Tax Com'r, Appellee.

No. 33817.

Supreme Court of Ohio.

Oct. 13, 1954.

Syllabus by the Court.

Where, on an appeal from an order of the Tax Commissioner to the Board of Tax Appeals pursuant to Section 5717.02, Revised Code, the notice of Appeal does enumerate in definite and specific terms certain precise errors claimed but there is no evidence to support such claimed errors, and where that notice of appeal further purports to describe error by the use of language so broad and general that it might be employed in nearly any case, a decision of the Board of Tax Appeals affirming such order of the Tax Commissioner will not be reversed by this court as unlawful or unreasonable.

Appellants operated a restaurant in Youngstown. The Tax Commissioner made a sales tax assessment against appellants for the period of July 1, 1948, to June 30, 1952. This assessment was based on appellants's records of gross sales for that period and an estimate by the Tax Commissioner's examiner that 25.6 per cent of those sales were exempt from taxation. Thereupon appellants filed with the Tax Commissioner a petition for reassessment. The reason advanced for the reassessment was that 'the more accurate and acceptable percentage of nontaxable sales' was 34.7 per cent. At the hearing before the Tax Commissioner, appellants offered evidence that such percentage was 33 per cent. The tax Commissioner, after that hearing, determined that 'the evidence submitted * * * establishes the vendors' exceptions as well taken and that the ratio of exempt sales to total sales for the audit period averaged 33 per cent' and made an order for an adjusted assessment based upon 33 per cent of sales being exempt from taxation.

Thereafter appellants appealed from that order of the Tax Commissioner and the assessment provided for therein to the Board of Tax Appeals. So far as it refers to any errors in that order of the Tax Commissioner, the notice of appeal to the Board of Tax Appeals reads:

'Such tax assessment and order is erroneous in the following respects:

'(1) That it increases the taxes based upon a fictitious formula that the exempt sales were 33 per cent of the gross sales when in truth and in fact more than 70 per cent were below the minimum for taxable sales under the law of Ohio;

'(2) That the determination was made on an approximation and not upon an analysis of each and every sale;

'(3) That the order of the Tax Commissioner is contrary to law and to fact.'

At the hearing before the Board of Tax Appeals, appellants offered evidence that a substantial portion of appellants' sales during the audit period represented sales of food for consumption off appellants' premises, which were entitled to exemption from sales tax and had not been considered, either by the Tax Commissioner or by those who testified for appel...