Summary
In Ohio Utilities Co. v. Collins (1976), 48 Ohio St.2d 169, 171, 2 O.O.3d 370, 371, 357 N.E.2d 1077, 1078, the court set forth the criteria for an applicant to obtain an abatement of overpaid taxes.
Summary of this case from Chicago Freight Car Leasing Co. v. LimbachOpinion
No. 76-374
Decided December 15, 1976.
Taxation — Tax Commissioner — Certificate of abatement — Not authorized to grant, when — R.C. 5703.05(B), construed.
The Tax Commissioner does not have jurisdiction pursuant to R.C. 5703.05(B) to grant a taxpayer a certificate of abatement for an overpayment of a tax which otherwise qualifies under that statute when the overpayment is made to a county treasurer.
APPEAL from the Board of Tax Appeals.
Appellant, the Ohio Utilities Company, alleges that it overestimated its taxable assets for the 1973 calendar year by $4,969,461, and that the error, which appeared in its March 1974, tax statement, resulted in a $56,033 overpayment of its public utility ad valorem tax.
In May of 1975, the utility company applied in writing to the Tax Commissioner for a certificate of abatement pursuant to R.C. 5703.05(B). The application was rejected by the commissioner who found that he was not authorized to grant an abatement of taxes paid to officials other than the Treasurer of State under R.C. 5703.05(B). The commissioner also found that he was without authority to correct the certification of the county auditor after the time to apply for review of that certification under R.C. 5727.47 had expired.
The utility company appealed the commissioner's order to the Board of Tax Appeals. The board, limiting its inquiry to the "jurisdictional question" of the commissioner's authority to grant an R.C. 5703.05(B) abatement of taxes paid to a county treasurer, affirmed the commissioner's order. In so doing, it found that the ad valorem tax in question was "collected by the county treasurer and disbursed to the local authorities by the county auditor" and was "in no way or measure" collected by the Treasurer of State.
The cause is now before this court upon an appeal as of right.
Messrs. Federico, Myers, Giovanetti Enz and Mr. Gordon P. Shuler, for appellant.
Mr. William J. Brown, attorney general, and Mr. John C. Duffy, Jr., for appellee.
The main issue raised by this cause is whether the Board of Tax Appeals' determination that the Tax Commissioner lacks jurisdiction to grant an R.C. 5703.05(B) certificate of abatement for overpayment of an ad valorem public utilities tax to a county treasurer is reasonable and lawful.
The holding in this cause is limited to that portion of R.C. 5703.05(B) dealing with the Tax Commissioner's power to issue certificates of abatement to taxpayers who have paid ad valorem taxes to their county treasurers. It has no bearing on the power of the Tax Commissioner pursuant to R.C. 5703.05(B) and 5715.39 to remit or refund the overpaid taxes of such taxpayers.
R.C. 5703.05(B) provides, in pertinent part:
"* * * the [tax] commissioner may on written application of any person, firm, or corporation claiming to have overpaid to the Treasurer of State at any time within five years prior to the making of such application any tax payable under any law which the Department of Taxation is required to administer which does not contain any provision for refund, or on his own motion investigate the facts and make in triplicate a written statement of his findings, and, if he finds that there has been an overpayment, issue in triplicate a certificate of abatement payable to the taxpayer, his assigns, or legal representative which shows the amount of the overpayment and the kind of tax overpaid."
Appellant contends that this court, under the authority of Phoenix Amusement Co. v. Glander (1947), 148 Ohio St. 592, should construe R.C. 5703.05(B) "liberally," equate payment to a county treasurer with payment to the Treasurer of State, and grant the Tax Commissioner jurisdiction to award appellant an abatement. However, since the Phoenix court did not deal with R.C. 5703.05(B), the holding of that case does not control the instant cause. Furthermore, if a statute is not ambiguous, this court will merely ask "what is the meaning of that which it [the General Assembly] did enact." Paragraph seven of the syllabus in State, ex rel. Foster, v. Evatt (1944), 144 Ohio St. 65.
The meaning of R.C. 5703.05(B) is clear. R.C. 5703.05(B) gives the Tax Commissioner authority, other than on his own motion, to grant an abatement for overpaid taxes when (1) an application is filed within five years of the alleged overpayment, (2) the overpayment is made under a statute not providing for a refund, (3) the overpayment is made pursuant to a law administered by the Department of Taxation, and (4) the overpayment is made to the Treasurer of State. Since payment to the Treasurer of State is clearly prerequisite to the receipt of an abatement under R.C. 5703.05(B), this court will not "expand, extend or improve" R.C. 5703.05(B) to equate payment to a county treasurer with payment to the Treasurer of State. State, ex rel. Foster, supra, paragraph eight of the syllabus. The board's decision not to construe R.C. 5703.05(B) liberally in favor of the taxpayer is reasonable and lawful.
Appellant contends, in the alternative, that the commissioner has jurisdiction to grant an abatement of appellant's overpaid ad valorem public utility tax pursuant to R.C. 5703.05(B), even though that tax was not paid to the Treasurer of State, because "county treasurers only happen to be collection agents" for the Department of Taxation.
When it decided appellant's cause, the Board of Tax Appeals made the factual finding that "the public utilities tax now under consideration * * * was paid * * * to the county treasurer." It also determined, after a survey of the pertinent statutes, that "the county treasurer collects this revenue on behalf of the local authorities," and that the "Treasurer of State in no way or measure collects or controls the collection of the ad valorem public utilities tax under discussion."
In Citizens Financial Corp. v. Porterfield (1971), 25 Ohio St.2d 53, this court held the following:
"The Supreme Court reviews decisions of the Board of Tax Appeals on questions of law. 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 the record whether the decision rendered by the board is unreasonable or unlawful."
The statutory provisions cited by the board support its legal determination that the "Treasurer of State in no way * * * controls the collection of the ad valorem * * * tax." The taxable value of public utilities is originally assessed, apportioned and certified to county auditors by the Tax Commissioner pursuant to R.C. 5727.08 and 5727.15. Those county auditors then prepare and deliver a tax list to the county treasurer (R.C. 319.28, 319.30 and 319.41), and the treasurer then collects the tax and directs payment of the tax revenue into various local funds (R.C. 323.09, 323.12, 323.13 and 5705.10). Since this statutory scheme calls for local collection and local disbursement of ad valorem public utility tax revenues, the board's determination that the county treasurer is not merely an agent of the Department of Taxation is reasonable and lawful.
Appellant also contends that if "preassessment hearings * * * and application for review and redetermination," pursuant to R.C. 5727.10 and 5727.47, are the exclusive remedies available to correct its overpayment of taxes, it has been denied due process of law because it "has no remedy at law to effectuate recovery of such overpayment." This court will not decide constitutional questions "until the necessity for a decision arises on the record before the court." State, ex rel. Herbert, v. Ferguson (1944), 142 Ohio St. 496. The board did not determine that preassessment or review hearings pursuant to R.C. 5727.10 and 5727.47 are prerequisite to R.C. 5703.05(B) abatement. Therefore, there is insufficient evidence that R.C. 5727.10 and 5727.47 provide exclusive remedies to support appellant's allegation of a constitutional issue. Petrocon v. Kosydar (1974), 38 Ohio St.2d 264. We decline to consider that question.
The decision of the Board of Tax Appeals, being reasonable and lawful, is affirmed.
Decision affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and P. BROWN, JJ., concur.