Campanella v. Lindley

423 N.E.2d 472, 67 Ohio St. 2d 290, 21 Ohio Op. 3d 182, 1981 Ohio LEXIS 579

• Court: Ohio Supreme Court
• Decided: July 22, 1981
• Docket: No. 80-1814
• Status: Published

Opinions

Holmes, J.

Broadly speaking, we are faced with the question of whether a county auditor may appeal the Tax Commissioner’s apportionment, among the various counties and taxing districts of the state, of the value of property owned by a telephone company.

The Board of Tax Appeals (board) based its determination that it had no jurisdiction, and dismissed appellant’s appeal, on alternative grounds. First, the board ruled that the apportionment was not a determination, finding, computation, or order, as those terms are used in R. C. 5717.02; thus, it was stated by the board, the apportionment was not an appealable order. Alternatively, the board reasoned that by virtue of R. C. 5727.47, the apportionment was not a final determination.

Addressing first the question of whether the apportionment was an appealable order, we look to R. C. 5717.02, which provides, in pertinent part:

“Appeals from final determinations by the tax commissioner or the commissioner of tax equalization of any preliminary, amended, or final tax assessments, reassessments, valuations, determinations, findings, computations, or orders made by either commissioner may be taken to the board of tax appeals by the taxpayer, by the person to whom notice of the tax assessment, reassessment, valuation, determination, finding, computation, or order by either commissioner is required by law to be given, by the director of budget and management if the revenues affected by such decision would accrue primarily to the state treasury, or by the county auditors of the counties to the undivided general tax funds of which the revenues affected by such decision would primarily accrue.”

Central to answering this question is whether the apportionment which R. C. 5727.21 requires the appellee to make is a determination, finding, computation, or order. We hold that the language used by the General Assembly in R. C. 5717.02 is broad enough to encompass this apportionment. Essentially, the appellee is required to “compute” or “determine” the proportionate share of the value of property to be allocated to each county in which the property is located. This allocation, pursuant to R. C. 5727.21, is to be made according to “the proportion that the length of the lines of wire owned by the company in the county bears to the whole length of the lines of wire in all the counties in the state.”

However, the board ruled that certain language used in R. C. 5727.47 evidences legislative intent that an apportionment is not an appealable order. R. C. 5727.47 gives public utilities the right to be heard by the Tax Commissioner as to the correctness of any determination, finding, or order after it has been certified to the proper officer. The second paragraph of R. C. 5727.47 requires notice of any application for review filed by a utility to be sent to the county auditor and county treasurer of each county “to which any such determination, finding or apportionment has been certified.” Because the word “apportionment” was substituted for “order,” the board reasoned that an apportionment must not be a determination, finding, or order.

We disagree. The fact that “order” and “apportionment” are used interchangeably in R. C. 5727.47 leads to a conclusion opposite to the one reached by the board. This interchanged use demonstrates that the General Assembly intended the concepts to be synonymous. Therefore, we conclude that an apportionment made under R. C. 5727.21 is an appealable order pursuant to R. C. 5717.02.²

Next, we must decide whether the apportionment was the final determination of the Tax Commissioner. It has been stated repeatedly that, under R. C. 5717.02, the board has jurisdiction to hear appeals only from final orders. See, e.g., Turner Constr. Co. v. Lindley (1980), 61 Ohio St. 2d 124. The question of finality is raised because R. C. 5727.47³ allows a utility taxpayer to seek redetermination and review by the Tax Commissioner.

Thus, appellee argues that there is no right of appeal to the board unless and until the public utility taxpayer has exercised its right under R. C. 5727.47 for redetermination and review. In support of this argument, appellee relies on Michelin Tire Corp. v. Kosydar (1974), 38 Ohio St. 2d 254.

In Michelin Tire Corp., a taxpayer appealed a preliminary assessment to the board. However, the taxpayer had not exercised his right of review and redetermination which was provided for in R. C. 5711.31. In affirming the board’s dismissal of the taxpayer’s appeal, this court held that the preliminary assessment did not become final, for purposes of appeal, until and unless the taxpayer exercised his right of review and redetermination, provided for by R. C. 5711.31.

Michelin Tire Corp. is distinguishable from the present appeal because, here, the appellant had no right to review and redetermination. The appellant could do nothing to require the appellee to reconsider the apportionment.

That the appellee’s order was final, insofar as it was applicable to this appellant, is further demonstrated by R. C. 5727.23. This section⁴ requires the county auditor, upon receipt of the apportionment from the commissioner, to place the apportioned valuation on the proper tax lists and duplicates. The county auditor has no opportunity to obtain review of any sort by the commissioner. As far as the county auditor is concerned, the commissioner’s jurisdiction terminates with the certification required in R. C. 5727.23. The fact that the General Assembly has afforded a public utility taxpayer a right of review to the commissioner should not be the basis for denying an otherwise valid appeal by a county auditor. Consequently, we hold that for purposes of an appeal to the Board of Tax Appeals, by a county auditor, the commissioner’s determination made pursuant to R. C. 5727.21 is final when certified to the county auditor, as required by R. C. 5727.23.

Based upon the foregoing, we hold that R. C. 5717.02 invests the Board of Tax Appeals with jurisdiction to hear a county auditor’s appeal of the apportionment made by the Tax Commissioner pursuant to R. C. 5727.21.

Accordingly, the decision of the Board of Tax Appeals is reversed, and the cause is remanded for hearing on the merits.

Decision reversed and cause remanded.

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

2 In ruling that the apportionment was not an appealable order, the board also relied upon Stanton v. Tax Commission (1928), 28 Ohio App. 398. However, a comparison of R. C. 5717.02, set forth above, and G.C. 5611-1, the statute upon which Stanton was based (see 28 Ohio App. at 409), demonstrates that Stanton is of no precedential value to the present case.

3 The relevant portion of R. C. 5727.47 provides:

“Any public utility may be heard by the tax commissioner as to the correctness of any determination, finding, or order of the commissioner after the same has been certified to the proper officer. A copy of such certification shall be mailed to the public utility, and the mailing thereof shall be prima-facie evidence of the receipt of the same by the public utility to which it is addressed. Application for a review and redetermination of any such determination, finding, or order must be filed in writing within thirty days from the date of the mailing of such copy.”

R. C. 5727.23 reads:

4 “On the first Monday in October, the tax commissioner shall certify to the county auditor the amount apportioned to his county and to each municipal corporation, township, or other taxing district therein as determined under sections 5727.13, 5727.15, 5727.21, and 5727.22 of the Revised Code.

“The county auditor shall place the apportioned valuation and assessments on the proper tax lists and duplicates, and taxes shall be levied and collected thereon at the same rates and in the same manner as taxes are levied and collected on real property in the taxing district in question.”