Akron Standard Division of Eagle-Picher Industries, Inc. v. Lindley

462 N.E.2d 419, 11 Ohio St. 3d 10, 11 Ohio B. 9, 1984 Ohio LEXIS 1091

• Court: Ohio Supreme Court
• Decided: May 2, 1984
• Docket: No. 83-1107
• Status: Published

Opinions

Locher, J.

The sole issue presented in this appeal is whether the verification requirement in R.C. 5739.13¹ for sales and use tax reassessment petitions is jurisdictional. We hold that it is not jurisdictional, and thus reverse the decision of the Board of Tax Appeals.

The board found this court’s decision in American Restaurant & Lunch Co. v. Glander (1946), 147 Ohio St. 147 [34 O.O. 8], to be dispositive of the controversy herein. Paragraph one of the syllabus in American Restaurant reads:

“Where a statute confers the right of appeal, adherence to the condition thereby imposed is essential to the enjoyment of the right conferred.”

The taxpayer in American Restaurant failed to include, as required by statute, the original assessment order of the commissioner in his notice of appeal to the board. The appeal was dismissed by the board for want of jurisdiction.

The commissioner argues in the case at bar that the failure of appellánt to satisfy the verification requirement similarly necessitates dismissal. The commissioner and the board construe the holding in American Restaurant too broadly, however.² Not included in the syllabus of American Restaurant was the following statement in the opinion at page 150:

“This court has heretofore held * * * that substantial compliance with these mandatory requirements constitutes a condition precedent to the right to be heard, upon appeal, by the Board of Tax Appeals and that a failure to comply therewith warrants the dismissal thereof by the Board of Tax Appeals.” (Emphasis added.)

The “substantial compliance” test was applied in the two cases cited by this court in American Restaurant as support for its decision: Kinsman Square Drug Co. v. Evatt (1945), 145 Ohio St. 52 [30 O.O 279]; and Dayton Rental Co. v. Evatt (1945), 145 Ohio St. 215 [30 O.O. 447]. We find this test to be the proper method of determining whether a reassessment petition has met the jurisdictional threshold.

The lack of a verified signature in a reassessment petitipn does not prevent the attachment of jurisdiction by an otherwise satisfactory filing, since substantial compliance with the requirements of the statute has taken place. The verification requirement is to be distinguished from the requirement that a notice of appeal be filed within thirty days of assessment, and also from the requirement that the order of the commissioner be included in the notice of appeal. The latter two requirements are essential in that they run to the core of procedural efficiency. The thirty-day requirement is an appellate statute of limitations, while the inclusion requirement litigated in American Restaurant gives notice of the substance of the appeal. Failure to comply fully with either of these requirements properly leads to dismissal of the appeal, since substantial compliance has not occurred. American Restaurant, supra, paragraph two of the syllabus; Lee Jewelry Co. v. Bowers (1955), 162 Ohio St. 567, 568 [55 O.O. 444]; Hafner & Sons v. Lindley (1979), 58 Ohio St. 2d 130, 131 [12 O.O.3d 127]; Leiphart Lincoln-Mercury, Inc. v. Bowers (1958), 107 Ohio App. 259, 265-266 [8 O.O.2d 183], The verification requirement serves no such essential purpose, however, and thus is not a jurisdictional prerequisite.

This case differs slightly from Hunt v. Rohrbaugh, Inc. (1960), 171 Ohio St. 92 [12 O.O.2d 122], where this court held that the verification requirement for pre-Civil Rule complaints was non-jurisdictional. A statute expressly permitted the filing of an amendment to correct the deficiency in Hunt. Here, there is no similar statute covering the reassessment petition. Implicit in the Hunt decision, however, was the finding that a verification omission should not be a jurisdictional bar.

Accordingly, the decision of the Board of Tax Appeals is reversed and the cause is remanded for a determination as to the merits of the petition.

Decision reversed and came remanded.

Sweeney, Holmes and C. Brown, JJ., concur. Celebrezze, C.J., W. Brown and J. P. Celebrezze, JJ., dissent.

1 R.C. 5739.13 provides, in pertinent part:

“Unless the vendor or consumer, to whom said notice of assessment is directed, files within thirty days after service thereof, either personally or by registered or certified mail, a petition in writing, verified under oath by said vendor, consumer, or his authorized agent, having knowledge of the facts, setting forth with particularity the items of said assessment objected to, together with the reasons for such objections, said assessment shall become conclusive and the amount thereof shall be due and payable, from the vendor or consumer so assessed, to the treasurer of state * * (Emphasis added.)

2 It should be noted that we are not bound by stare decisis since American Restaurant specifically applies to appeals only. However, finding no appreciable difference between appeals and reassessment petitions in this procedural context, we find the language in American Restaurant to be instructive.