Summary
In Rowland, the taxpayer appealed a journal entry of the Tax Commissioner that the commissioner had issued to carry out the express mandate of this court in an earlier appeal of the same case.
Summary of this case from Columbus Board of Education v. Franklin County Board of RevisionOpinion
No. 78-911
Decided April 18, 1979.
Taxation — Appeal from Tax Commissioner to board — Dismissed, when — Not a "final determination" under R.C. 5717.02.
APPEAL from the Board of Tax Appeals.
This case originates from a decision of the Board of Tax Appeals (board) dismissing an appeal from a journal entry of the Tax Commissioner entered on February 16, 1977. The board determined that the commissioner's entry was not an appealable order.
The appellant, Albert Rowland, was the president and a 50 percent shareholder of Allied Highway Equipment, Inc. (Allied). Allied was audited by the Tax Commissioner and found to be deficient in the collection of sales taxes. The commissioner made an assessment against Allied on November 5, 1971, and filed a claim with Allied's trustee in bankruptcy for the amount of the assessment on November 11, 1971. Since Allied had been adjudicated bankrupt on April 8, 1971, the trustee in bankruptcy viewed the claim to be invalid. He did not appeal the assessment. The trustee consented to pay one-half of the claim, and the commissioner, on August 16, 1973, pursant to the provisions of R.C. 5739.33, assessed the remainder against Rowland and John Boyd, as officers of the corporation.
Both officers petitioned for reassessment, and the commissioner affirmed his previous order. Rowland then appealed to the board, which reversed and vacated the order of the Tax Commissioner.
This court in Rowland v. Collins (1976), 48 Ohio St.2d 311, found that the decision of the board was unlawful and unreasonable and reversed the board's decision. This court ordered that an entry issue to the board to carry its judgment into execution. The board, upon receiving such an entry, ordered the Tax Commissioner to carry out the court's decision. Pursuant to this mandate, the commissioner issued a journal entry on February 16, 1977, giving effect to the mandate of the board and the decision of this court in Rowland, supra. This latter entry provided the basis for the appeal to the board.
The cause is now before this court upon an appeal as of right.
Messrs. Lutz Oxley, Mr. Howard S. Lutz, Messrs. Crabbe, Brown, Jones, Potts Schmidt and Mr. Keith H. Yung, for appellant.
Mr. William J. Brown, attorney general, and Mr. Charles M. Steines, for appellee.
R.C. 5717.02 provides that "[a]ppeals from final determinations by the tax commissioner * * * of any preliminary, amended, or final tax assessments, reassessments, valuations, determinations, findings, computations, or orders made by * * * [the] commissioner may be taken to the board of tax appeals by the taxpayer * * *." A journal entry which the Tax Commissioner issues only in order to carry out the expressed mandate of this court is not a "final determination" within the purview of R.C. 5717.02.
The decision of the Board of Tax appeals dismissing the appeal is affirmed.
Decision affirmed.
CELEBREZZE, C.J., HERBERT, COLE, P. BROWN, SWEENEY, POTTER and HOLMES, JJ., concur.
COLE, J., of the Third Appellate District, sitting for W. BROWN, J.
POTTER, J., of the Sixth Appellate District, sitting for LOCHER, J.