Lang, Fisher Stashower Advertising v. Collins

Full title: LANG, FISHER STASHOWER ADVERTISING, INC., APPELLANT. v. COLLINS, TAX…

Court: Supreme Court of Ohio

Date published: May 26, 1976

46 Ohio St. 2d 285 (Ohio 1976)

347 N.E.2d 538

Opinion

No. 75-1167

Decided May 26, 1976.

Taxation — Sales and use taxes — 60-day letter — Not an appealable order.

APPEAL from the Board of Tax Appeals.

On July 28, 1975, an employee of the Tax Commissioner of Ohio issued an official notice of intention to levy a sales and use tax assessment (commonly known as a "60-day letter") against Lang, Fisher Stashower Advertising, Inc. ("Lang, Fisher"). Lang, Fisher requested that the notice be withdrawn, claiming that it was not a "vendor" under Ohio sales tax law. The commissioner refused to withdraw the notice. Lang, Fisher then appealed the issuance of the notice to the Board of Tax Appeals, urging that the notice was a determination that Lang, Fisher was a vendor.

The Board of Tax Appeals found that the notice of intention to levy an assessment was not a final determination by the Tax Commissioner and that the board therefore lacked jurisdiction to consider appellant's appeal. The appeal was dismissed.

The cause is now before this court upon an appeal as a matter of right.

Messrs. Hahn, Loeser, Freedheim, Dean Wellman, Mr. Neil K. Evans, Mr. Randall D. Luke and Mr. Richard E. Hahn, for appellant.

Mr. William J. Brown, attorney general, and Mr. Michael L. Moushey, for appellee.

Per Curiam.

The "60-day letter" or notice of intent to levy an assessment is not a final determination that Lang, Fisher Stashower Advertising, Inc., is a vendor. Of course, the notice reflects the view held by the Tax Commissioner at that time that appellant was a vendor. However, the notice is not a final determination by the commissioner. Until such time as the commissioner makes a final determination, the initial determination expressed in the notice is subject to modification or review by him.

Since the notice is not a final determination by the Tax Commissioner, the Board of Tax Appeals correctly found that it was without jurisdiction to consider the appeal. R.C. 5717.02; Michelin Tire Corp. v. Kosydar (1974), 38 Ohio St.2d 254, 313 N.E.2d 394.

For the foregoing reason, 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.