Opinion
No. 30270
Decided May 23, 1945.
Taxation — Public golf course green fees — Not taxable as admission fees or for use of club or private course — Section 5544-2, General Code — Golf course part of township public park — Section 3415 et seq., General Code.
Green fees charged by a board of park commissioners of a township park, created under and by virtue of Section 3415 et seq., General Code, for the use of the facilities of a public golf course located in and constituting a part of such park, are not subject to a tax under paragraph (4) of Section 5544-2, General Code, providing for a tax on green fees charged for the facilities of golf courses "either under club or private ownership," and are not subject to a tax under paragraph (1) of Section 5544-2, General Code, providing for a tax on "amounts received for admission to any place."
APPEAL from the Board of Tax Appeals.
This is an appeal from a decision of the Board of Tax Appeals vacating an assessment made by the Tax Commissioner, under the admissions tax statute, Section 5544-1 et seq., General Code, upon green fees collected for the month of August 1943, by the Board of Park Commissioners of Youngstown Township Park District from persons using the facilities of a public golf course in a public park owned by the township and operated by the board.
By virtue of Section 3415-1, Page's General Code, Section 3 of House Bill 461 (111 Ohio Laws, 506), the board of park commissioners is made a body politic and corporate.
The park in question was established by vote of the electors of the township which is a political subdivision authorized to own and operate a public park within its territorial boundaries. The park is open to the public, and the revenues received through the operation of the golf course are credited to the general fund of the board of park commissioners for the operation and upkeep of the park. There is no dispute as to the amount of tax, if any is assessable. The dispute is limited to a question of law as to whether an admission tax may be lawfully assessed against the board of park commissioners on the green fees collected by it.
The Tax Commissioner made an assessment from which the board of park commissioners appealed to the Board of Tax Appeals, which latter board vacated the assessment.
The case is now in this court on appeal by the Tax Commissioner.
Messrs. Manchester, Bennett, Powers Ullman, for appellee.
Mr. Hugh S. Jenkins, attorney general, and Mr. A.A. Cartwright, for appellant.
The Tax Commissioner, as appellant, claims the power to make the assessment in this case by virtue of the provisions of Section 5544-2, General Code. The pertinent part of that section is as follows:
"* * * there is hereby levied:
"(1) A tax of three per centum on the amounts received for admission to any place, including admission by season ticket or subscription.
"(2) A tax of three per centum on the excess of amounts received for tickets or cards of admission to theatres, operas, and other places of amusement, sold at news stands, hotels, and places other than the ticket offices of such theatres, operas, or other places of amusement, over and above the amounts representing the established price therefor at such ticket offices; such tax to be returned and paid in the manner and subject to the interest provided in Section 5544-5 of the General Code, by the person selling such tickets.
"(3) A tax of three per centum on the amount received for admission to any public performance for profit at any roof garden, cabaret, or other similar entertainment in case the charge for admission is in the form of a service charge, or cover charge, or other similar charge.
"(4) A tax of three per centum on the amount received as annual membership dues by every club or organization maintaining a golf course; and a tax of three per centum on green fees collected by golf courses either under club or private ownership." (Italics ours.)
This court is of the opinion that the imposition of the tax in this case is not warranted under paragraph (4) of the statute just quoted. That paragraph imposes a tax of three per cent on "membership dues by every club or organization maintaining a golf course; and a tax of three per centum on green fees collected by golf courses either under club or private ownership." Clearly, that language specifically levies the tax only on dues or green fees paid to private organizations or to private persons operating golf courses. The maxim expressio unius est exclusio alterius applies. By no process of construction can that portion of the statute apply to green fees charged and collected for the use of a publicly owned golf course.
In passing, it may be observed that under Section 5544-1, General Code, as amended, municipalities and other political subdivisions of the state are included within the term "persons" against whom the admission tax may be assessed. We reach the conclusion, however, that green fees charged by political subdivisions of the state for the use of publicly owned golf courses are not subject to the admission tax, not on the theory that the General Assembly does not have the power to impose a tax on green fees charged for the use of such golf courses, but because it has not done so.
This court is also of the opinion that the imposition of the tax in this case may not be made under paragraph (1) of Section 5544-2, General Code, on the theory that the green fees in question are paid as an admission fee to the golf course. From the context of the entire section it appears that the admissions on which a tax is to be charged include only admissions to places of entertainment where the person admitted is a spectator or auditor, such as theatres, operas, public performances, ball games, athletic contests and other places of amusement. The green fees charged for the use of the facilities of a golf course are in the nature of a rental or use tax paid for the privilege of using the facilities of the golf course. The fee is paid by one who is not a spectator at but a user of the course. On the other hand, if a fee were paid for the privilege of witnessing a golf match, as is often done, the fee charged would be an admission fee and subject to the tax.
The decision of the Board of Tax Appeals is affirmed.
Decision affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER and MATTHIAS, JJ., concur.