Stines v. Limbach

• Decision Date: 20 December 1988
• Docket Number: No. 88AP-231,88AP-231
• Citation: 573 N.E.2d 131,61 Ohio App.3d 461
• Parties: STINES, Appellant, v. LIMBACH, Tax Commr., Appellee.
• Court: Ohio Court of Appeals

Page 461

61 Ohio App.3d 461

573 N.E.2d 131

STINES, Appellant, v. LIMBACH, Tax Commr., Appellee.

No. 88AP-231.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Dec. 20, 1988.

Erwin W. Stines, pro se.

Anthony J. Celebrezze, Jr., Atty. Gen., and Richard C. Farrin, for appellee.

WHITESIDE, Presiding Judge.

This is an appeal by appellant, Erwin W. Stines, from a decision of the Board of Tax Appeals. Appellant contends that the decision is unreasonable and unlawful. Although our decision in Neuwirth v. Bowers (1962), 117 Ohio App. 380, 24 O.O.2d 147, 192 N.E.2d 235, tends to support appellee's contention, we find it to be inappropriate for this court not to exercise jurisdiction clearly conferred upon it by R.C. 5717.04. Without analysis or explanation, this court in Neuwirth stated in apparent dicta that the first sentence of R.C. 5717.04 requires an individual taxpayer to reside in Franklin County in order to appeal to this court. Unfortunately, this court in Neuwirth ignored the remainder of the statute and the statutory history of R.C. 5717.04, and did not even discuss the meaning of the sentence " * * * [i]n all other instances, the proceeding to obtain such reversal, vacation, or modification shall be by appeal to the court of appeals for Franklin county." The Neuwirth determination relied upon by appellee is no more than dicta, since the court overruled the motion to dismiss in that case because of lack of evidence in the record as to residency of the appellant.

R.C. 5717.04 reads in pertinent part as follows:

"The proceeding to obtain a reversal, vacation, or modification of a decision of the board of tax appeals shall be by appeal to the supreme court or the court of appeals for the county in which the property taxed is situate or in which the taxpayer resides. If the taxpayer is a corporation, then the proceeding to obtain such reversal, vacation, or modification shall be by appeal to the supreme court or to the court of appeals for the county in which the property taxed is situate, or the county of residence of the agent for service of process, tax notices, or demands, or the county in which the corporation has its principal place of business. In all other instances, the proceeding to obtain such reversal, vacation, or modification shall be by appeal to the court of appeals for Franklin county.

"Appeals from decisions of the board determining appeals from decisions of county boards of revision may be instituted by any of the persons who were parties to the appeal before the board of tax appeals, by the person in whose name the property involved in the appeal is listed or sought to be listed, if such person was not a party to the appeal before the board of tax appeals * * *.

"Appeals from decisions of the board of tax appeals determining appeals from final determinations by the tax commissioner of any preliminary, amended, or final tax assessments, reassessments, valuations, determinations, findings, computations, or orders made by the commissioner may be instituted by any of the persons who were parties to the appeal or application before the board, by the person in whose name the property is listed or sought to be listed, if the decision appealed from determines the valuation or liability of property for taxation and if any such person was not a party to the appeal or application before the board * * *.

"Appeals from decisions of the board upon all other appeals or applications filed with and determined by the board may be instituted by any of the persons who were parties to such appeal or application before the board * * *.

"Such appeals shall be taken within thirty days after the date of entry of the decision of the board * * * by the filing of appellant of a notice of appeal with the court to which the appeal is taken and the board. * * * The court in which notice of appeal is first filed shall have exclusive jurisdiction of the appeal.

" * * *

" * * * The 'taxpayer' includes any person required to return any property for taxation." (Emphasis added.)

A careful reading and analysis of R.C. 5717.04 indicates that the first sentence thereof has no bearing upon and no application to this appeal, which involves neither taxable property having a situs nor a "taxpayer" within the meaning of the first sentence of R.C. 5717.04 as that word is defined by the last sentence.

Here, appellant seeks a refund of an amount of taxes he paid to an automobile dealer for the purchase of an automobile, since the sale has been rescinded, and therefore, no tax is due upon such sale. The sales tax is an excise tax. As such, it is not a property tax, i.e., a tax on property, but instead an excise tax, i.e., a tax on the transaction itself. Since there is no tax on property involved, there can be no person required to return property for taxation and, thus, no "taxpayer" to file an appeal.

In determining the correct construction of a statute, we must be guided by R.C. 1.42, which provides that "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage. * * * " We are also required by R.C. 1.47(B) to presume that "[t]he entire statute is intended to be effective." If a statute is ambiguous, R.C. 1.49 requires a court to consider, inter alia, "(A) [t]he object sought to be attained; * * * (C) [t]he legislative history; * * * (E) [t]he consequences of a particular construction."

Accordingly, we must presume that the General Assembly intended that meaning be given to the last sentence of the first paragraph of R.C. 5717.04, which provides that "in all other instances" the appeal be to this court. This necessarily implies that there must be appeals from the Board of Tax Appeals which do not involve property having a taxable situs nor a taxpayer (a person required to return property for taxation).

As stated above, the next-to-last paragraph of R.C. 5717.04 specifically defines "taxpayer" as used in R.C. 5717.04 as including "any person required to return any property for taxation." This taxpayer definition clarifies the use of the word "taxpayer" in the first paragraph and it is limited in meaning to taxpayers with respect to property which is taxed. In other words, if the tax is not a tax on property but, instead, an excise tax, as is here the case, the word "taxpayer" does not apply. It necessarily follows that any excise tax situation is one of the "other instances" within the contemplation of the provision of R.C. 5717.04, providing for appeals to this court.

R.C. 5717.04 confers concurrent jurisdiction upon the Supreme Court and the court of appeals with respect to appeals from the Board of Tax Appeals. Thus, the "all other instances" provision of the last sentence of the first paragraph of R.C. 5717.04 cannot be construed to mean instances where there is no available appeal to the Supreme Court since such an appeal is always available.

Arguably, if the word "taxpayer" were stretched beyond its clear meaning as defined in the statute itself, the last sentence of the first paragraph of R.C. 5717.04 could be given meaning to apply only to nonresidents of Ohio who are paying some tax in Ohio which is not a property tax. There is nothing in the statute to indicate that the legislature intended to limit the provision referring to "all other instances" to situations where there are nonresidents of Ohio paying an excise tax in Ohio.

The correct interpretation of R.C. 5717.04 is that the reference to appeals to the court of appeals in the first sentence of the first paragraph was intended to apply only to property tax issues, with the proper court to be determined either by the situs of the property or the residence of the person (taxpayer) who returned such property for taxation. The very language stating "the county in which the property taxed is situate" points to that conclusion. Such an interpretation permits the last sentence regarding "all other instances" to have substance because it then encompasses all appeals from the Board of Tax Appeals other than those based upon property tax issues.

This conclusion is bolstered by the legislative history of R.C. 5717.04. Prior to 1953, R.C. 5717.04 provided for appeals only to the Supreme Court from the Board of Tax Appeals. The 1953 amended version reads essentially as it does today with respect to the addition of the last portion of the first paragraph, the addition of the last sentence of the fifth paragraph and the addition of the last sentence of the next to last paragraph. In other words, added by the 1953 amendment (125 Ohio Laws 250) were the following:

"[O]r the court of appeals for the county in which the property taxed is situate or in which the taxpayer resides. * * * In all other instances, the proceeding to obtain such reversal, vacation, or modification shall be by appeal to the court of appeals for Franklin county.

" * * *

" * * * The court in...