Turner Const. Co. v. Lindley

• Decision Date: 30 January 1980
• Docket Number: No. 79-795,79-795
• Citation: 61 Ohio St.2d 124,399 N.E.2d 1231
• Parties: , 15 O.O.3d 160 TURNER CONSTRUCTION COMPANY, Appellant, v. LINDLEY, Tax Commr., Appellee.
• Court: Ohio Supreme Court

Page 124

61 Ohio St.2d 124

399 N.E.2d 1231, 15 O.O.3d 160

TURNER CONSTRUCTION COMPANY, Appellant, v. LINDLEY, Tax Commr., Appellee.

No. 79-795.

Supreme Court of Ohio.

Jan. 30, 1980.

Syllabus by the Court

An order of the Tax Commissioner, which sets aside a sales and use tax reassessment order made 20 days previous thereto and declares that the determination of the subject application relative to the reassessment will be held in abeyance pending further administrative proceedings, is not a final determination in the cause and is not appealable to the Board of Tax Appeals.

This case arises from a decision of the Board of Tax Appeals (BTA), dated May 18, 1979, which dismissed an appeal by appellant, Turner Construction Company (Turner).

By journal entry dated January 2, 1979, the Tax Commissioner issued his final determination relative to sales and use tax assessment No. 7719247, levied against Turner. Turner did not appeal therefrom. Subsequently, on January 22, 1979, the Tax Commissioner journalized the following order: "(I)t is the order of the Tax Commissioner that * * * (the January 2, 1979 entry) hereby is * * * set aside and held for naught, and that the determination on the subject application (for reassessment) be held in abeyance pending further administrative proceedings." On February 20, 1979, Turner filed a notice of appeal with the BTA, challenging the January 22, 1979, order and alleging that the order was final and appealable. The Tax Commissioner filed a motion to dismiss the appeal, contending that the order was not appealable and was not a final determination of the cause. Upon the record and memorandum filed in support of the motion to dismiss, the BTA found that the Tax Commissioner's order of January 22, 1979, was not a final determination and therefore, was "not appealable * * * pursuant to R.C. 5717.02."

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

Frost & Jacobs, Dennis J. Barron and Larry H. McMillin, Cincinnati, for appellant.

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

HERBERT, Justice.

The dispositive issue in this cause is whether the January 22, 1979, order of the Tax Commissioner is appealable to the BTA under the authority of R.C. 5703.02(A)(4) and 5717.02. Turner argues in the first instance that the BTA has jurisdiction to hear appeals from "all orders" of the Tax Commissioner. Alternatively, Turner contends that the commissioner's vacating order is itself a "final determination" and is appealable. ¹

The BTA is a legislative creation whose appellate powers are specified by statute. R.C. 5703.02; Stewart v. Evatt (1944), 143 Ohio St. 547, 56 N.E.2d 159. Consequently, compliance with jurisdictional enactments is essential before the BTA may review questions arising from determinations of the Tax Commissioner under the operation of the tax laws. Painesville v. Lake County Budget Comm. (1978), 56 Ohio St.2d 282, 383 N.E.2d 896; Hafner & Sons v. Lindley (1979), 58 Ohio St.2d 130, 388 N.E.2d 1240.

R.C. 5703.02 sets forth the general powers and duties of the BTA, and provides in relevant part that the board shall:

"(A) Exercise the authority provided by law to hear and determine all appeals of questions of law and facts * * * including but not limited to appeals from:

"* * *

"(4) Final determinations by the tax commissioner * * * of any preliminary, amended, or final tax * * * determinations, findings, computations, or orders made by him * * *."

Pursuant to the enabling provisions of R.C. 5703.02(A)(4), cf. Morgan County Budget Comm. v. Bd. of Tax Appeals (1963), 175 Ohio St. 225, 193 N.E.2d 145, the General Assembly has provided in R.C. 5717.02 that:

"Appeals from final determinations by the tax commissioner * * * of any preliminary, amended or final tax assessments * * * or orders made by * * * (the) commissioner may be taken to the board of tax appeals by the taxpayer, by the person to whom notice of tax assessment, reassessment * * * or order by * * * (the) commissioner is required by law to be given * * *."

It is established that under the provisions of R.C. 5703.02 and 5717.02, the BTA has jurisdiction to hear and determine appeals from orders of the Tax Commissioner when the order appealed represents the commissioner's final determination with respect to that cause. Rowland v. Lindley (1979), 58 Ohio St.2d 15, 387 N.E.2d 1367; Lindley v. Ferguson (1977), 52 Ohio St.2d 60, 369 N.E.2d 482; Lang, Fisher & Stashower Advertising v. Collins (1976), 46 Ohio St.2d 285, 347 N.E.2d 538, Turner contends that the above construction of R.C. 5703.02 and 5717.02 is incorrect, and urges this court to construe these statutory provisions in a manner which would allow "all orders" of the Tax Commissioner to be appealed to the BTA. In support of this proposition, Turner relies principally upon Pittsburgh Steel Co. v. Bowers (1961), 172 Ohio St. 14, at page 19, 173 N.E.2d 361, at page 364, wherein this court stated, that "(a)n examination of * * * (R.C. 5703.02(E) and 5717.02) definitely indicates that the Board of Tax Appeals has jurisdiction under the present law to review any order or finding of the Tax Commissioner." (Emphasis sic.)

In our view, neither Turner's proposed construction of these statutes, nor its reliance upon the dictum of this court in Pittsburgh Steel, is supported by an analysis of the statutory history of R.C. 5703.02 and 5717.02. As originally enacted, neither R.C. 5703.02 nor 5717.02 circumscribed appeals to only those arising from "final determinations" or "final tax orders" of the commissioner. R.C. 5703.02 initially empowered the BTA to exercise the authority provided by law to hear and determine all appeals, including appeals for review of "any tax assessments * * * or orders" made by the Tax Commissioner. ² Similarly, R.C. 5717.02 originally provided in general terms that "appeals...