Summary
In Inter-City Foods, the court found that a notice that states that the BTA's decision was against the manifest weight of the evidence satisfied the requirements of R.C. 5717.04.
Summary of this case from Foundation v. TestaOpinion
No. 71-312
Decided May 17, 1972.
Taxation — Appeal — From Board of Tax Appeals to Court of Appeals — Notice adequate to vest jurisdiction, when — Must set forth errors complained of — R.C. 5717.04 — Board's order claimed to be against weight of evidence — R.C. 2505.01 et seq. and 5717.04 in pari materia.
A notice of appeal from the Board of Tax Appeals to the Court of Appeals, under favor of R.C. 5717.04, which complains, inter alia, of error in that the final order of the Board of Tax Appeals was against the manifest weight of the evidence, enumerates with specificity an error and is adequate to vest jurisdiction in the Court of Appeals to hear the appeal.
APPEAL from the Court of Appeals for Stark County.
Plaintiff-appellee, Inter-City Foods, Inc., doing business as Bill's Diner, operates two restaurants, one located in Massillon, Ohio, and the other located in North Canton, Ohio. On November 27, 1968, the Tax Commissioner, after conducting a test check, assessed sales taxes against the plaintiff-appellee in the amount of $2,659.44 for the tax period beginning July 1, 1964, and ending August 31, 1967.
From that determination, appellee, on January 8, 1969, filed a notice of appeal with the Board of Tax Appeals. A hearing was held on June 20, 1969, and on November 19, 1969, the Board of Tax Appeals affirmed the order of the Tax Commissioner.
Pursuant to R.C. 5717.04, appellee, on December 17, 1969, filed a notice of appeal in the Court of Appeals for Stark County, alleging:
"1. The final order of the Board of Tax Appeals is unreasonable, unlawful, and against the manifest weight of the evidence.
"2. The evidence adduced on behalf of the Tax Commissioner is so manifestly in error, and the evidence adduced by the appellant is so manifestly credible and creditable, that the decision of the Board of Tax Appeals amounts to an unconstitutional taking of the appellant's property."
On December 24, 1969, the Tax Commissioner filed a motion to dismiss appellee's appeal, asserting that the notice of appeal did not set forth errors complained of as required by R.C. 5717.04, and thereby failed to invoke the jurisdiction of the Court of Appeals. The Court of Appeals overruled the motion, heard the case on its merits, and, on April 2, 1970, entered judgment for the appellee. The judgment voided all deficiency assessments, penalties and interests for the tax period from July 1, 1964, to August 31, 1967, holding appellee is not to be further civilly liable for thax tax period.
The Tax Commissioner appealed that judgment to this court. The motion to certify the record was allowed and we limited oral argument to the question of the validity of the notice of appeal filed in the Court of Appeals.
Mr. Ralph L. Kinsey, for appellee.
Mr. William J. Brown, attorney general, and Mr. Peter A. Stratigos, for appellant.
We are herein only concerned with the notice of appeal filed by appellee in the Court of Appeals for Stark County and its accord with R.C. 5717.04, which provides, in part, that such notice of appeal "shall set forth * * * the errors therein complained of."
It is appellant's contention that, "Where a taxpayer in his notice of appeal from a decision of the Board of Tax Appeals to a Court of Appeals employs language so broad and general that the same language might apply in almost any case, the appellate court is not vested with jurisdiction to hear the appeal pursuant to Section 5717.04, Revised Code."
It is pointed out in appellant's brief that we held in Richter Transfer Co. v. Bowers (1962), 174 Ohio St. 113, that, "Strict compliance with the statutory requirements with respect to appeals provided for in Chapter 5717, Revised Code, is required." Richter was a direct appeal from the Board of Tax Appeals to this court.
It must be noted that in the notice of appeal in Richter, complaint No. 4 urged that "the decision is against the weight of the evidence." The weight of the evidence involves a review of the whole record, and the Court of Appeals is the appropriate appellate forum for that purpose. Ace Steel Baling v. Porterfield (1969), 19 Ohio St.2d 137.
The General Assembly has stated (R.C. 2505.31), and we have long held, that this court is not required to weigh evidence in civil cases. It is the established practice of this court "to refuse to weigh the evidence to determine its sufficiency or where the preponderance lies or whether correct conclusions as to the facts were reached by the court below." State, ex rel. Pomeroy, v. Webber (1965), 2 Ohio St.2d 84.
R.C. 2505.31:
"In a civil case or proceeding, except when its jurisdiction is original, and except as provided by Section 2309.59 of the Revised Code, the Supreme Court need not determine as to the weight of the evidence."
It was for these reasons that this court, in Richter, sustained appellee's motion to dismiss the appeal, stating "that the notice of appeal in the instant case does not sufficiently set forth `the errors therein complained of' and, therefore, is not a sufficient compliance with the statutory requirement."
However, as to this appeal from the Board of Tax Appeals to the Court of Appeals, it is an appeal on questions of law and R.C. 2505.01 provides that this includes the weight and sufficiency of the evidence. The statutes in R.C. Chapter 2505, being general appeals' statutes making provisions, inter alia, for appeals from the findings and orders of the administrative officers or commissions when provided by law, and R.C. 5717.04, setting forth the requirements for an appeal from the Board of Tax Appeals, are in pari materia. Therefore, if possible, their provisions should be reconciled. See Trotwood Trailers v. Evatt (1943), 142 Ohio St. 197.
R.C. 2505.01:
"(B) `Appeal on questions of law' means a review of a cause upon questions of law including the weight and sufficiency of the evidence."
Accordingly, in our view, the notice of appeal to the Court of Appeals in the instant case, which complains, inter alia, of error in that the final order of the Board of Tax Appeals was against the manifest weight of the evidence, enumerates with specificity an error and is adequate to vest jurisdiction in the Court of Appeals to hear the appeal.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, STERN, LEACH and BROWN, JJ., concur.