Summary
In Kenney v. Evatt (1945), 144 Ohio St. 369, 29 O.O. 541, 59 N.E.2d 47, we held that failure to give notice to the BTA was a failure to comply with a mandatory provision of the statute.
Summary of this case from Mid-States Terminal, Inc. v. Lucas County Board of RevisionOpinion
No. 30170
Decided January 17, 1945.
Supreme Court — Dismissal — Appeal from Board of Tax Appeals — Notice of appeal not filed with Board of Tax Appeals — Section 5611-2, General Code — Such notice filed with Tax Commissioner.
APPEAL from the Board of Tax Appeals.
A sales tax assessment was made, with penalty, by the Tax Commissioner against the appellant who perfected an appeal to the Board of Tax Appeals.
On July 27, 1944, the Board of Tax Appeals reduced the sales tax assessment made by the Tax Commissioner and affirmed the assessment as so modified.
On August 26, 1944, the appellant filed in this court an original and copies of a notice of appeal which set forth the decision of the Board of Tax Appeals; an assignment of errors; a statement that the appeal was filed under authority of Section 5611-2, General Code; a notice to "William S. Evatt, Tax Commissioner," that appellant had filed his notice of appeal with the Board of Tax Appeals and with the Supreme Court of the State of Ohio; and an affidavit by counsel for appellant that he had sent a copy of the notice of appeal by registered mail to the Tax Commissioner.
The cause was heard by this court on motion of the Tax Commissioner to dismiss "the purported appeal for the reason that said court is without jurisdiction to entertain this cause."
Mr. W.P. Strangward, for appellant.
Mr. Thomas J. Herbert, attorney general, and Mr. Daronne R. Tate, for appellee.
The notice of appeal to this court recites that such notice was sent by registered mail to the Tax Commissioner.
Section 5611-2, General Code, reads in part as follows:
"Such appeals shall be taken within thirty days after the date of the entry of the decision of the Board of Tax Appeals on the journal of its proceedings, as provided by Section 5611-1 of the General Code of Ohio, by the filing by appellant of a notice of appeal with the Supreme Court of Ohio and with the Board of Tax Appeals. Such notice of appeal shall set forth the decision of the Board of Tax Appeals appealed from and the errors therein complained of. Proof of the filing of such notice with the Board of Tax Appeals shall be filed with the Supreme Court." (Emphasis ours.)
The transcript of the record of the proceedings of the Board of Tax Appeals does not show that a notice of appeal was filed with that board as required by that section.
The giving of notice of appeal to the Tax Commissioner did not constitute a compliance with the mandatory provision of Section 5611-2, General Code, for notice to the Board of Tax Appeals. See Johnson v. Sweeney, Secy. of State, 140 Ohio St. 279, 43 N.E.2d 239.
The motion is sustained and the cause is dismissed.
Appeal dismissed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, MATTHIAS and HART, JJ., concur.