Riss & Co. v. Bowers
| Decision Date | 19 September 1961 |
| Citation | 114 Ohio App. 429,183 N.E.2d 795 |
| Court | Ohio Court of Appeals |
| Parties | , 19 O.O.2d 451 RISS & COMPANY, Inc., Appellant, v. Stanley J. BOWERS, Tax Commissioner, Appellee. |
George, Greek, King & McMahon, Columbus, Kiehner Johnson, Columbus, of counsel, for appellant.
Mark McElroy, Atty. Gen., Joseph L. White, Asst. Atty. Gen., Columbus, for appellee.
This is an appeal from a final order of the Board of Tax Appeals by Riss & Company, appellant, herein called Riss. Riss is a foreign corporation with its principal offices in Kansas City, Missouri. It operates a fleet of trucks carrying freight in interstate commerce in a twenty-two state area.
This appeal has to do with highway use tax assessments as provided in Section 5728.01 to 5728.14 of the Revised Code. It is one of six appeals by Riss to this court from the Board, each bearing a separate case number in this court, each having to do with the highway use tax and each dealing with different audit periods. In the six cases, thirteen quarterly periods are involved beginning October 1, 1953 to and including December 31, 1956.
There separate opinions of this court will be used to decide the questions involved in the six cases bearing six numbers which have been appealed to this court from the Board of Tax Appeals, following Board decisions in each case affirming the action of the Tax Commissioner.
Of the thirteen quarterly periods involved in the six appeals, this opinion will deal with two such periods, January 1, 1956 to June 30, 1956, for which periods the Tax Commissioner made assessments against Riss as highway use tax and penalty in the total amount of $108,502.45, following which Riss filed a petition for rehearing (Assessment No. F 21050), which was denied by the Commissioner and the denial affirmed by the Board in its case No. 42,641, which, on appeal to this court, is case No. 6558.
On of the other opinions will deal with the seven quarterly periods between October 1, 1953 and June 30, 1955. During this time, Riss filed the required reports and made the required payments. It subsequently, in claim No. 2481 filed with the Commissioner October 24, 1955, asked for refund of $233,229.83, which claim was rejected by the Commissioner and his action was affirmed in case No. 42,840 before the Board, which, on appeal to this court, is case No. 6557.
The other separate opinion will deal with the four quarterly periods which were consolidated for briefing, argument and decision before the Board and in briefing in this court, involving in the aggregate assessments totaling $150,229.11, identified as follows: our number 6555 (B.T.A. no. 42,605), 3rd quarter 1955; our number 6554 (B.T.A. no. 42,606), 4th quarter 1955; our number 6553 (B.T.A. no. 42,607), 3rd quarter 1956 and our number 6552 (B.T.A. no. 42,608), 4th quarter 1956. During the four quarterly periods just referred to, Riss filed the detailed highway use tax reports required setting forth the number of axles and the mileage traveled in Ohio by each of its vehicles for the quarterly periods involved, but failed and refused to pay any part of the tax.
Again directing our attention to the questions involved in our case number 6558, which is the subject of this opinion, it should be stated that Riss had obtained the necessary highway use permits which are required in case of tractors, commercial cars and other vehicles having more than two axles which are subject to the highway use tax. It should also be stated that during the period covered in this case, Riss filed the two quarterly reports, covering the first half of 1956, showing the number of axles and the mileage traveled in such periods in Ohio by each of the vehicles operated by Riss as required by the highway use tax law, but failed and refused to pay any part of the tax based upon the use of Ohio highways as disclosed in such reports.
The highway use tax law requires that the report for each quarterly period must be filed within twenty days after the close of the period and the full amount of the highway use tax
shown to be due by such reports must be paid at the time the report is required to be filed.
It is admitted by all concerned that Riss filed complete reports at the times they were due but that it did not pay the tax shown to be due by such reports for the first two quarters of 1956 which are those involved in case number 6558, the subject of this opinion.
On December 3, 1959 the Tax Commissioner, in assessment no. F 21050, determined that for the period from January 1, 1956 through June 30, 1956, the highway use tax owed by Riss was $94,349.96, plus a 15% penalty of $14,152.49, making a total of $108,502.45.
A copy of the assessment, properly attested, was served on Riss through the Secretary of State of Ohio on December 3, 1959 and was actually received by Riss on December 7, 1959. On the face of the assessment under the word, 'Important', are set forth detailed instructions with reference to the time limits, instructions as to a petition for reassessment and the furnishing of cash or corporate surety bond, the bond provision reading as follows:
'In addition to the filing of a petition for reassessment the assessee must post a cash or corporate surety bond satisfactory to the commissioner, in the amount of the assessment including penalty, conditioned upon payment of the tax finally determined to be due.'
On January 2, 1960, Riss by its counsel filed a petition for reassessment, setting forth its objections in the following language:
'Assessee objects to the tax on the grounds that it is a foreign corporation and that the tax is unconstitutional as it pertains to such company.'
The petition was on a form furnished by the Department of Taxation (HUT. 41) and at the bottom thereof is set forth a portion of Section 5728.10, supra, dealing with appeals from assessments and quoting the requirement in this section that the assessee must 'post bond satisfactory to the commissioner conditioned upon payment of the tax finally determined to be due.'
Although the assessment and penalty totaled $108,502.45 and the assessment notice stated that cash or surety bond satisfactory
to the Commissioner 'in the amount of the assessment including penalty' must be filed, appellant filed neither cash nor surety bond in any amount, but instead appellant's counsel tendered his personal check for $100.00 (R. 7-11). It was further indicated that the Tax Commissioner brought the need for a bond to the attention of appellant and that appellant was given a period of time in which to comply, but failed and refused to furnish bond in any amount.
On February 2, 1960, the Commissioner filed a journal entry dismissing the petition for reassessment for the reason that appellant had failed to post the required bond. The entry stated that the assessment became final on January 7, 1960 and that due to this failure to post cash or surety bond, the Commissioner lacked jurisdiction to entertain the petition for reassessment.
On March 3, 1960, Riss appealed to the Board from the order of the Commissioner denying the petition for reassessment, the notice of appeal setting forth the grounds therefor as follows:
'Such tax assessment, determination or order is erroneous in the following respects:
'(1) Assessee alleges that said assessment is unconstitutional and void in that it is a denial of due process and equal protection of the laws contrary to the Constitutions of the United States and of the State of Ohio.
'(2) Such assessment is invalid because it was made under authority of Section 5728.10, Revised Code, which section is unconstitutional in that it denies to assessee any hearing on the correctness of said assessment without the necessity of posting bond satisfactory to the Commissioner, which requirement is unconstitutional in that it is an unreasonable restraint upon the due process of law and fair hearing to which assessee is entitled.'
The matter came on for hearing before two attorney examiners of the Board but no evidence of any sort was offered except a professional statement by counsel for Riss reading as follows: (R. 8)----
'At the time the petition for reassessment was tendered to the Tax Commissioner or the Tax Commissioner's office, that a check in the amount of $100 of my own personal funds was
deposited at the time the petition for reassessment was filed. Subsequently, we were advised, of course, that we would have to file the bond in the full amount which we did not do. There is no question of fact there. We just didn't do it, and the Tax Commissioner subsequently finalized the order on the basis that we had not submitted in the full amount.'
In a further statement, counsel for Riss explained his client's position (R. 9) as follows:
'Our position is double to the extent that it is the position of the company, particularly since this assessment actually--the tax accrued in 1956, the first two quarters of 1956, which was far ahead of the actual enactment of the provision with reference to the bond, that the Statute is unconstitutional insofar as it is ex post facto to that previous tax return.'
On July 19, 1960, the Board filed a journal entry stating it was 'unable to find that the final order of the Tax Commissioner herein complained of is in any way unreasonable...
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Lomaz Financial Corp. v. Limbach
...enlarge his appeal by setting forth such error as one of the questions presented in his brief. See Riss & Co., Inc. v. Bowers (1961), 114 Ohio App. 429, 183 N.E.2d 795; See also, 86 Ohio Jurisprudence 3d (1988) 258, Taxation, Section 215. Accordingly, appellants' first assignment is beyond ......