Opinion
No. 37820
Decided November 6, 1963.
Taxation — Penalty for failure to pay tax within time — Section 323.17, Revised Code — Treasurer's refusal to accept tender avoids penalty — Section 5711.31, Revised Code.
APPEAL from the Board of Tax Appeals.
An additional personal property tax assessment was made against an appellee herein, Southland Stores No. 3, Inc. The county auditor imposed a ten per cent penalty against such appellee, pursuant to Section 323.17, Revised Code, for failure to pay its personal property tax within time.
Southland Stores disputed the entire amount of the additional assessment and presented to the county treasurer a check for such amount, together with a letter requesting that the check, which Southland Stores considered a "tender," be refused and the check returned, pending a final determination of its tax liability. The deputy county treasurer signed a notation on the bottom of the letter that he was refusing "tender" of the amount of the check.
Thereafter, the liability for such additional assessment was determined adversely to Southland Stores, and the county auditor, being of the opinion that no "tender" had been made, imposed a penalty on the assessment. Upon application for remission of the penalty, the Tax Commissioner found that the penalty was erroneously assessed and ordered that it be remitted pursuant to Section 5711.31, Revised Code, which provides that if tender is not accepted "no penalty shall be assessed because of the nonpayment thereof."
The Board of Tax Appeals affirmed the order of the Tax Commissioner.
An appeal from the decision of the Board of Tax Appeals brings the cause to this court for review.
Mr. John T. Corrigan, prosecuting attorney, Mr. John F. Smolka and Mr. Fred F. Hilow, for appellants.
Mr. William B. Saxbe, attorney general, and Mr. Daronne R. Tate, for appellee Board of Tax Appeals.
Messrs. Dargusch, Saxbe Dargusch and Mr. Shelby V. Hutchins, for appellee Southland Stores No. 3, Inc.
It is not the function of this court to substitute its judgment for that of the Board of Tax Appeals on factual issues but only to determine from an examination of the record whether the decision reached by the board is unreasonable or unlawful.
From an examination of the record, this court is unable to find that the decision of the Board of Tax Appeals is unreasonable or unlawful. The decision is, therefore, affirmed.
Decision affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.