House of Seagram, Inc. v. Bowers

175 Ohio St. (N.S.) 465

Opinions

Per Curiam.

There is an agreement upon tbe facts. The position of the appellant is that no use tax was paid on the use in Ohio of this advertising material from April 1, 1957, to and including March 31, 1960, because appellant relied upon tbe unreversed decision of tbe Board of Tax Appeals in Red Top Brewing Co. v. Bowers (1955), V Board of Tax Appeals Decisions re Sales and Use Tax, Index No. 60.

It is agreed that under the judgments of this court in Coca-Cola Bottling Co. of Youngstown v. Bowers, Tax Commr. (May 25, 1960), 171 Ohio St., 26, and H. J. Heinz Co. v. Bowers, Tax Commr. (March 23, 1960), 170 Ohio St., 423, the nse of such advertising material is subject to the use tax. Appellant argues at length in its brief that no use tax was due or payable from it for the period prior to the judgments in the Coca-Cola and Heins cases, supra, for the reason that the Board of Tax Appeals decision in the Red Top case, supra, was the controlling law of the state.

It must be pointed out here that the Coca-Cola case, supra, involved a January 1, 1954, through December 31, 1957, audit period, and this court affirmed the assessment for that period.

An examination of the record in this case indicates that the only question presented to this court may be stated thus:

Was the use of advertising material appellant purchased outside Ohio and used exclusively in Ohio from April 1, 1957, to March 3, 1960, to promote, at retail, the purchase, use and consumption of brand liquor products in Ohio subject to the use tax?

This question was determined by the Coca-Cola and Heins cases, supra. No other question is presented by this record.

This case can be summed up in one sentence. The appellant did not pay the use tax which was owed to the state because of the Board of Tax Appeals decision in the Red Top case, supra, which was not appealed from to this court. When the same question was brought before it in the Coca-Cola and Heins cases, supra, this court held contra to the decision of the Board of Tax Appeals in the Red Top case, supra. Now the same question as was presented to this court in the Coca-Cola and Heins cases, supra, is before this court again in this case, and this court adhers to its judgments in those cases.

The decision of the Board of Tax Appeals is affirmed.

Decision affirmed.

Zimmerman, acting C. J., Matthias, O’Neill, Grieeith, Herbert and Gibson, JJ., concur. Zimmerman, J., sitting in the place and stead of Taft, C. J. Duffey, J., of the Tenth Appellate District, sitting by designation in the place and stead of Zimmerman, J.