State ex rel. Sherrick v. Peck

• Decision Date: 25 June 1952
• Docket Number: No. 32982,32982
• Citation: 107 N.E.2d 145,158 Ohio St. 122
• Parties: , 48 O.O. 60 STATE ex rel. SHERRICK v. PECK, Tax Com'r.
• Court: Ohio Supreme Court

Page 122

158 Ohio St. 122

107 N.E.2d 145, 48 O.O. 60

STATE ex rel. SHERRICK v. PECK, Tax Com'r.

No. 32982.

Supreme Court of Ohio.

June 25, 1952.

Syllabus by the Court.

1. Where the Tax Commissioner of Ohio makes an assessment against a vendor or consumer pursuant to the provisions of Section 5546-9a, General Code, and pursuant to the provisions of that section undertakes to serve notice of such assessment upon the vendor or consumer by registered mail, such service is effected on the day that such registered mail is received by the vendor or consumer, which date of receipt is, in the absence of proof to the contrary, presumed to be the date appearing upon the registered return card purporting to bear the signature of the vendor or consumer to whom the notice is addressed, and the 30-day period within which the vendor or consumer may file a petition containing objections to such assessment begins to run at the date of service of the notice so determined.

2. A petition of a vendor or consumer setting forth his objections to items of an assessment contained in a notice of assessment served upon him pursuant to the terms of Section 5546-9a, General Code, and containing the reasons of such vendor or consumer for such objections is considered as filed with the Tax Commissioner as required by the provisions of said section of the General Code on the day that such vendor or consumer deposits such petition in a United States post office as registered mail with adequate postage and directed to the Tax Commissioner of Ohio at Columbus.

The relator-appellee filed a petition in the Court of Appeals for Franklin county praying that a writ of mandamus be issued ordering the respondent-appellant, Tax Commissioner, to receive and accept the relator's petition for reassessment and to grant a hearing as provided by law. The petition in mandamus states that the Tax Commissioner made an assessment against relator in the sum of $3,676.66; that notice of said assessment was mailed to him by respondent by registered mail on the 16th day of April 1951, was received at his home on the 17th day of April 1951, but was not received by him personally until several days later; that relator immediately began preparing a petition for reassessment in the form prescribed by the statute and comprising some 80 pages of typewritten auditing material showing that he did not owe said assessment; that this material when completed was placed in an envelope with proper postage for registered mail for delivery to Columbus, Ohio, and was delivered to the post office at Fremont, Ohio, on May 16, 1951, with a request for a return receipt; and that the return receipt shows that this petition for reassessment was received by respondent on May 18, 1951. Relator alleges that respondent refused to accept said petition for the reason that relator did not comply with the provisions of Section 5546-9a, General Code, and that the action of respondent in refusing to accept said petition was arbitrary, unreasonable, an abuse of discretion and contrary to law.

The respondent demurred to this petition in mandamus for the reason that it appears on its face that it does not state facts which show a cause of action. The Court of Appeals overruled the demurrer and appeal was perfected to this court by the respondent.

C. William O'Neill, Atty. Gen., and Thomas R. Lloyd, Cambridge, for appellant.

Dale D. Rapp, Columbus, for appellee.

MIDDLETON, Judge.

The only issue submitted is the construction of Section 5546-9a, General Code, which provides:

'* * * The commissioner shall give to the vendor or consumer, written notice of such assessment. Such notice may be served upon the vendor or consumer personally or by registered mail.

* * *

* * *

"Unless the vendor or consumer, to whom said notice of assessment is directed, shall, within thirty days after service thereof, either personally or by registered mail, file a petition in writing, verified under oath by said vendor, consumer, or his duly authorized agent, having knowledge of the facts, setting forth with definiteness and particularity the items of said assessment objected to, together with the reason for such objections, said assessment shall become and be deemed conclusive and the amount thereof shall be due and payable, from the vendor or consumer so assessed, to the treasurer of state.'

The respondent takes the position that the relator's reassessment petition was not filed within 30 days after service of notice upon him and, therefore, the...