Cleveland Electric Illuminating Co. v. Collins

Ohio Supreme Court

Cleveland Electric Illuminating Co. v. Collins

357 N.E.2d 1101, 48 Ohio St. 2d 233, 2 Ohio Op. 3d 406, 1976 Ohio LEXIS 742

CourtOhio Supreme Court

DecidedDecember 15, 1976

DocketNos. 76-481 and 76-495

StatusPublished

Cited by1 cases

This text of 357 N.E.2d 1101 (Cleveland Electric Illuminating Co. v. Collins) 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.

Bluebook

Cleveland Electric Illuminating Co. v. Collins, 357 N.E.2d 1101, 48 Ohio St. 2d 233, 2 Ohio Op. 3d 406, 1976 Ohio LEXIS 742 (Ohio 1976).

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Opinion

Per Curiam.

We cannot conclude from the provisions' of R. C. 5727.47 that the General Assembly intended [235]*235that statute to be the only relief available where an error in valuation of part of a public-utility taxpayer’s real estate has been incorporated into- the Tax Commissioner’s assessment and apportionment of the taxpayer’s ad valorem tax. The auditor, in erroneously listing the value of the parcel of real estate in question, was. acting as the agent of the Tax Commissioner. The auditor was the “officer required to perform a duty relating to the assessment of property for taxation” under R. C. 5715.39. Toledo Edison Co. v. Galvin (1973), 34 Ohio St. 2d 187.

. Since the Tax Commissioner is the assessor of the property of a public utility under R. C. 5727.06, he is the official, in the first instance, who has authority under R. C. 5715.39 to remit ad- valorem taxes illegally assessed. Nor is this duty so apportionable that errors occurring in the listing of real estate values must be considered differently than errors in other values entering into the commissioner’s computation. It is the nature of the tax assessed, rather than the nature of the individual items of property upon which values are imposed, which determines the commissioner’s authority in this regard.

The Tax Commissioner’s argument that our holding in Toledo Edison v. Galvin, supra, limits his authority under R. C. 5703.05(B) and 5715.39 to grant the relief here sought is incorrect. Our decision in that case turned upon its special facts which involved' an illegal attempt by the auditor of that county to assess a specific parcel of utility real estate by his handwritten insertion of an assessment upon the treasurer’s duplicate. This court held that under that circumstance R. C. 5703.02(1) gives the Board of Tax Appeals jurisdiction to hear the application as one for the remission of a tax against real -estate.

We are aware that in many tax statutes the words “remit” and “refund” are not identical in meaning. We perceive that often the language’ of taxing statutes must be examined, as was done in Defiance College v. Bd. of Tax Appeals, supra, in order to determine whether, the.power to “remit” includes the power to “refund.” We hold, how[236]*236ever, that the Board of Tax Appeals was correct in concluding that a refund was authorized here by R. C. 5703.05 in light of that case. . The decision of .the board is there-, fore affirmed, but since we see no need to remand the cause to' the Tax Commissioner, we sustain C.E.I.’s appeal and thus direct the Board of Tax Appeals to issue the appropriate order.

Decision affirmed:

O’Neill, C. J., Herbert, Corrigan, Stern, Celebrezze, ~W. Brown and P. Brown, JJ., concur.

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Per Curiam.

We cannot conclude from the provisions' of R. C. 5727.47 that the General Assembly intended [235]*235that statute to be the only relief available where an error in valuation of part of a public-utility taxpayer’s real estate has been incorporated into- the Tax Commissioner’s assessment and apportionment of the taxpayer’s ad valorem tax. The auditor, in erroneously listing the value of the parcel of real estate in question, was. acting as the agent of the Tax Commissioner. The auditor was the “officer required to perform a duty relating to the assessment of property for taxation” under R. C. 5715.39. Toledo Edison Co. v. Galvin (1973), 34 Ohio St. 2d 187.

. Since the Tax Commissioner is the assessor of the property of a public utility under R. C. 5727.06, he is the official, in the first instance, who has authority under R. C. 5715.39 to remit ad- valorem taxes illegally assessed. Nor is this duty so apportionable that errors occurring in the listing of real estate values must be considered differently than errors in other values entering into the commissioner’s computation. It is the nature of the tax assessed, rather than the nature of the individual items of property upon which values are imposed, which determines the commissioner’s authority in this regard.

The Tax Commissioner’s argument that our holding in Toledo Edison v. Galvin, supra, limits his authority under R. C. 5703.05(B) and 5715.39 to grant the relief here sought is incorrect. Our decision in that case turned upon its special facts which involved' an illegal attempt by the auditor of that county to assess a specific parcel of utility real estate by his handwritten insertion of an assessment upon the treasurer’s duplicate. This court held that under that circumstance R. C. 5703.02(1) gives the Board of Tax Appeals jurisdiction to hear the application as one for the remission of a tax against real -estate.

We are aware that in many tax statutes the words “remit” and “refund” are not identical in meaning. We perceive that often the language’ of taxing statutes must be examined, as was done in Defiance College v. Bd. of Tax Appeals, supra, in order to determine whether, the.power to “remit” includes the power to “refund.” We hold, how[236]*236ever, that the Board of Tax Appeals was correct in concluding that a refund was authorized here by R. C. 5703.05 in light of that case. . The decision of .the board is there-, fore affirmed, but since we see no need to remand the cause to' the Tax Commissioner, we sustain C.E.I.’s appeal and thus direct the Board of Tax Appeals to issue the appropriate order.

Decision affirmed:

O’Neill, C. J., Herbert, Corrigan, Stern, Celebrezze, ~W. Brown and P. Brown, JJ., concur.

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Bluebook (online)

357 N.E.2d 1101, 48 Ohio St. 2d 233, 2 Ohio Op. 3d 406, 1976 Ohio LEXIS 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleveland-electric-illuminating-co-v-collins-ohio-1976.

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