Castellano v. Kosydar
This text of 326 N.E.2d 686 (Castellano v. Kosydar) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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This appeal presents the question of whether the period of time for filing a petition for reassessment, pursuant to R. C. 5739.13, begins to run when service of the notice of assessment is effectuated, or from the date the taxpayer receives actual notice of such assessment.
R. C. 5739.13 provides, in pertinent part:
“In each case the commissioner shall give to the person assessed written notice of such assessment. Such notice may be served upon the person assessed personally or by registered or certified mail. * * *
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“Unless the vendor or consumer, to whom said notice of assessment is directed, files within thirty days after service thereof * * * 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 the state. * * *”
Appellants contend that the issue herein should be resolved consistent with the rationale of the Court of Appeals in Fell v. Bur. of Motor Vehicles (1972), 30 Ohio App. 2d 151, 283 N. E. 2d 825, where actual notice to the licensee was found to be a condition precedent to suspension of a [109]*109driver’s license under R. 0. 4511.191(E).1 To reach that conclusion, the Court of Appeals relied upon the mandate of this court in Moore v. Given (1884), 39 Ohio St. 661, in which the second paragraph of the syllabus states “ [w]here a statute requires notice of a proceeding, but is silent concerning its form of service, actual notice will alone satisfy such requirement.” In the case at bar, R. C. 5739.13 is not silent concerning the manner of service, but specifically designates registered or certified mail as a means of notifying the taxpayer.2
R. C. 5739.13 provides for appeal from the notice of assessment, if the taxpayer “files within thirty days after service thereof.” In deciding whether that time period is to be construed as running from the date when the taxpayer receives actual notice of the assessment, guidance is available from a perusal of how mail service is employed pursuant to the Rules of Civil Procedure. Civ. R. 4.1(1) provides, in part: ‘ ‘ Service of any process shall be by certified mail unless otherwise permitted by these rules.” Service by mail is therefore encouraged and preferred under the Civil Rules, as a party cannot invoke personal or residence service unless he specifically files a written request for such process.3
[110]*110The use of mail service, under R. 0. 5739.13, is not only preferred under the Civil Rules, it also is consistent with due process and modern service requirements. Such service is reasonably calculated to give notice of the assessment and allow the taxpayer to present his objections. See Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U. S. 306, 314.
It should also be noted that certified mail, under the Rules of Civil Procedure, no longer requires actual service upon the party receiving the notice, but is effective upon certified delivery. Prior to its amendment in 1971, Civ. R. 4.1(1) stated that “* * * if the return receipt shows failure of delivery to the addressee the clerk shall forthwith notify, by mail, the attorney of record * * V’ (Emphasis added.) However, the above-italicized words were subsequently deleted,4 evidencing an intent to avoid the impression that certified mail, to be effective, had to be delivered to and signed by the addressee only. The above considerations, and the recognition that a need for actual notice would be contradictory to modern service requirements, represent persuasive arguments for the rejection of appellants ’ position.
Finally, there are significant practical problems inherent in the taxpayers’ contentions. As pointed out heretofore, R. C. 5739.13 allows for a 30-day period for appeal before the tax assessment becomes conclusive and payable to the state. A requirement of actual notice would permit a taxpayer to evade service and not be liable upon the assessment until such time as the Tax Commissioner could show the requisite notice and passage of the 30-day period. In that situation, the ability of the commissioner to prove actual receipt on a particular day would be elusive at best.
[111]*111It is oui conclusion that where an assessment for sales taxes is made pursuant to R. C. 5739.13, and notice of such assessment is served upon the vendor or consumer by registered or certified mail, service is effective when the notice is delivered and properly receipted for by an appropriate person at the vendor or consumer’s residence, and the 30-day period within which the vendor or consumer must file a petition objecting to such assessment begins to run from that date.5 Any language to the contrary in State, ex rel. Sherrick, v. Peck (1952), 158 Ohio St. 122, 107 N. E. 2d 145, is disapproved, and the first paragraph of the syllabus of that case is overruled.
The decision of the Board of Tax Appeals is affirmed.
Decision affirmed.
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Cite This Page — Counsel Stack
326 N.E.2d 686, 42 Ohio St. 2d 107, 71 Ohio Op. 2d 77, 1975 Ohio LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castellano-v-kosydar-ohio-1975.