Summary
In Fineberg v. Kosydar (1975), 44 Ohio St.2d 1, the Ohio Supreme Court held in order to perfect an appeal from the Tax Commissioner to the Board of Tax Appeals, written notice must be filed with the Board and with the Commissioner.
Summary of this case from Ross v. TracyOpinion
No. 75-79
Decided October 1, 1975.
Appeal — From Tax Commissioner to Board of Tax Appeals — R.C. 5717.02 — Notice of appeal — Required filing with Tax Commissioner — Mandatory and jurisdictional.
APPEAL from the Board of Tax Appeals.
Milton J. Fineberg, appellant herein, purportedly appealed to the Board of Tax Appeals, on August 5, 1974, from a final order of the Tax Commissioner, dated July 24, 1974, wherein a sales tax assessment was levied against appellant as an officer of Budget Rent-A-Car of Dayton, Inc.
Thereafter, the Tax Commissioner filed with the board a motion to dismiss the purported appeal, asserting that notice of appeal was not filed by appellant with both the Tax Commissioner and the Board of Tax Appeals, as required by R.C. 5717.02. After an evidentiary hearing, the board found that no notice of appeal had been filed with the Tax Commissioner as required by the statute, and ordered the appeal dismissed.
The cause is now before this court upon an appeal from the decision of the board.
Kusworm Myers Co., L.P.A., Mr. John H. Dawson and Mr. Jacob A. Myers, for appellant.
Mr. William J. Brown, attorney general, and Ms. J. Elaine Bialczak, for appellee.
The case of Zephyr Room v. Bowers (1955), 164 Ohio St. 287, is controlling herein. In Zephyr, this court stated that:
"Compliance with the mandatory provisions of Section 5717.02, Revised Code, governing the filing of a notice of appeal is essential to invoke jurisdiction of the Board of Tax Appeals. American Restaurant Lunch Co. v. Glander, Tax Commr., 147 Ohio St. 147, 70 N.E.2d 93."
In order to perfect an appeal from the Tax Commissioner to the Board of Tax Appeals, it is required that written notice to that effect be filed "with the board and with the commissioner within thirty days after * * * order by the commissioner has been given * * *." R.C. 5717.02. The Board of Tax Appeals, having received evidence from both appellant and the Tax Commissioner with respect to the purported filing of the notice of appeal, concluded that no notice of appeal had been filed with the Tax Commissioner.
After a review of the record herein, this court is of the opinion that the decision of the board, dismissing the appeal for failure to comply with the jurisdictional requirement of R.C. 5717.02, is not unreasonable or unlawful. See Zephyr, supra; and Lee Jewelry Co. v. Bowers (1955), 162 Ohio St. 567.
The decision of the Board of Tax Appeals is affirmed.
Decision affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.