[Cite as Western Reserve Historical Soc. v. Testa, 2014-Ohio-5020.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
WESTERN RESERVE HISTORICAL C.A. No. 27223 SOCIETY
Appellant APPEAL FROM JUDGMENT v. ENTERED IN THE OHIO BOARD OF TAX APPEALS JOSEPH W. TESTA, TAX COUNTY OF SUMMIT, OHIO COMMISSIONER OF OHIO CASE No. 2013-4280
Appellee
DECISION AND JOURNAL ENTRY
Dated: November 12, 2014
CARR, Judge.
{¶1} Appellant, Western Reserve Historical Society, appeals from the judgment of the
Board of Tax Appeals. This Court affirms.
I.
{¶2} In 2008 Western Reserve Historical Society (WRHS) filed an application for the
exemption of real property with the tax commissioner. On August 8, 2013, the tax commissioner
issued his final determination, in which he denied a portion of WRHS’s property tax exemption
request. WRHS sent a notice of appeal to the Board of Tax Appeals (BTA) by certified mail and
to the tax commissioner by regular mail. However, the tax commissioner did not receive the
notice of appeal.
{¶3} After WRHS’s deadline to file an appeal had passed, the tax commissioner sent a
letter to WRHS’s stating that he did not receive WRHS’s notice of appeal. Because WRHS sent 2
the notice of appeal to the tax commissioner by regular mail, it could only show that the
document was mailed. It was not able to provide proof of delivery or receipt. The only actual
notice received by the tax commissioner was the docketing and scheduling notice sent by the
BTA. The docketing and scheduling statement included the name of the appellant, the case
number below, and the scheduled hearing date.
{¶4} The tax commissioner moved to dismiss WRHS’s appeal for lack of jurisdiction,
pursuant to R.C. 5717.02. The BTA granted the tax commissioner’s motion to dismiss and
denied WRHS’s subsequent motion to reconsider the order of dismissal. WRHS filed a timely
appeal in which it raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE BOARD OF TAX APPEALS ERRED IN DISMISSING WRHS’S TAX APPEAL ON THE BASIS OF FAILURE TO COMPLY WITH R.C. 5717.02, AND THEREAFTER DENYING WRHS’S MOTION TO RECONSIDER THE DISMISSAL ORDER.
{¶5} In its sole assignment of error, WRHS argues that the Board of Tax Appeals erred
in dismissing its tax appeal on the basis of failure to comply with R.C. 5717.02, and denying its
motion to reconsider the dismissal order. Specifically, WRHS argues that the BTA’s dismissal
was unreasonable and unlawful because WRHS fulfilled the dual filing requirement of R.C.
5717.02 by sending a notice of appeal to the BTA by certified mail and sending the notice of
appeal to the tax commissioner by regular mail, even though the notice of appeal was not
received by the tax commissioner. This Court disagrees.
{¶6} R.C. 5717.02 sets forth the procedures required for bringing a proper appeal to the
BTA from a final determination of the tax commissioner. It states, in relevant part: 3
[A]ppeals shall be taken by the filing of a notice of appeal with the board, and with the tax commissioner if the tax commissioner's action is the subject of the appeal * * *. The notice of appeal shall be filed within sixty days after service of the notice of the tax assessment, reassessment, valuation, determination, finding, computation, or order by the commissioner * * *.
{¶7} The requirements of R.C. 5717.02 are legislatively mandated and must be strictly
complied with before the subject matter jurisdiction of the BTA may be invoked. American
Restaurant & Lunch Co. v. Glander, 147 Ohio St. 147, 149-150 (1946); Clippard Instrument
Laboratory, Inc. v. Lindley, 50 Ohio St.2d 121, 122 (1977); Craftsman Type, Inc. v. Lindley, 6
Ohio St.3d 82, 85 (1983); Gen. Motors Corp. v. Wilkins, 102 Ohio St.3d 33, 42, 2004-Ohio-
1869, ¶ 68. R.C. 5717.02 specifically requires that a notice of appeal be filed with both the BTA
and the tax commissioner within sixty days after the service of final determination.
{¶8} Furthermore, the courts have repeatedly held that an appellant must timely file its
notice of appeal with the tax commissioner, as well as the BTA, in order to invoke the
jurisdiction of the BTA. Zephyr Room, Inc. v. Bowers, 164 Ohio St. 287 (1955); Fineberg v.
Kosydar, 44 Ohio St.2d 1, 2 (1975). The failure to comply with this requirement properly leads
to a dismissal of the appeal. Akron Standard Div. v. Lindley, 11 Ohio St.3d 10, 12 (1984).
{¶9} In this case, WRHS failed to properly file its notice of appeal with the tax
commissioner. Although the notice of appeal was placed in the regular mail system, there is no
evidence that the notice of appeal was received by the tax commissioner. The Supreme Court of
Ohio has defined filing as actual delivery of a document into the official custody and control of
the appropriate government official. Fulton v. State ex rel Gen. Motors Corp., 130 Ohio St. 494,
498 (1936). Dealing with a statute similar to the statute at issue here, the Eighth District Court of
Appeals has held likewise that filing contemplates both delivery and receipt within the statutory
time limit. Ohio Leitina Co. v. McCormack, 8th Dist. Cuyahoga No. 72127, 1997 WL 781726, 4
*3 (Dec. 18, 1997); See also National Merchandising Corporation v. Giles, 10th Dist. Franklin
No. 77AP-715, 1978 WL 216706, *4 (March 2, 1978) (holding that “* * * the word ‘filed’
means deliverance into the actual custody of the proper officer designated by the statute to be
kept by him as a permanent record of his office and that filing is not complete until the document
is delivered and received.”). Placing a notice of appeal in the regular mail system does not place
the document in the official custody and control of the tax commissioner. Thus, WRHS’s
placement of the notice of appeal in the regular mail system was insufficient to complete the
statutorily required act of filing with the tax commissioner.
{¶10} The statute lists specific instances in which the time of mailing constitutes the
time of filing. These include the use certified mail, express mail, or other authorized delivery
services. R.C. 5717.02. Regular mail is not included in these instances. Therefore, WRHS’s act
of placing its notice of appeal in the regular mail system cannot be counted as the time of filing
under R.C. 5717.02.
{¶11} WRHS argues that the actual notice given to the tax commissioner via the BTA’s
docketing statement is sufficient when there has been an attempted filing by regular mail. The
Supreme Court of Ohio addressed the sufficiency of actual notice via a docketing letter from the
BTA on multiple occasions. See Austin Co. v. Cuyahoga County Bd. Of Revision, 46 Ohio St.3d
192, 194 (1989); Clippard, 50 Ohio St.2d at 122-23. In Austin, the Supreme Court stated that
BTA docketing letters do not replace an appellant’s duty to file its notices of appeal with the
proper authorities. Austin Co., 46 Ohio St.3d at 194. The BTA has no statutory duty to inform,
and an appellant may not substitute the BTA’s voluntary deed for an act required of the appellant
by statute. Id. 5
{¶12} WRHS cannot establish that its notice of appeal was delivered to or received by
the tax commissioner. Placing the notice of appeal in the regular mail system was insufficient to
constitute filing because that act did not place the document in the custody and control of the tax
commissioner.
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[Cite as Western Reserve Historical Soc. v. Testa, 2014-Ohio-5020.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
WESTERN RESERVE HISTORICAL C.A. No. 27223 SOCIETY
Appellant APPEAL FROM JUDGMENT v. ENTERED IN THE OHIO BOARD OF TAX APPEALS JOSEPH W. TESTA, TAX COUNTY OF SUMMIT, OHIO COMMISSIONER OF OHIO CASE No. 2013-4280
Appellee
DECISION AND JOURNAL ENTRY
Dated: November 12, 2014
CARR, Judge.
{¶1} Appellant, Western Reserve Historical Society, appeals from the judgment of the
Board of Tax Appeals. This Court affirms.
I.
{¶2} In 2008 Western Reserve Historical Society (WRHS) filed an application for the
exemption of real property with the tax commissioner. On August 8, 2013, the tax commissioner
issued his final determination, in which he denied a portion of WRHS’s property tax exemption
request. WRHS sent a notice of appeal to the Board of Tax Appeals (BTA) by certified mail and
to the tax commissioner by regular mail. However, the tax commissioner did not receive the
notice of appeal.
{¶3} After WRHS’s deadline to file an appeal had passed, the tax commissioner sent a
letter to WRHS’s stating that he did not receive WRHS’s notice of appeal. Because WRHS sent 2
the notice of appeal to the tax commissioner by regular mail, it could only show that the
document was mailed. It was not able to provide proof of delivery or receipt. The only actual
notice received by the tax commissioner was the docketing and scheduling notice sent by the
BTA. The docketing and scheduling statement included the name of the appellant, the case
number below, and the scheduled hearing date.
{¶4} The tax commissioner moved to dismiss WRHS’s appeal for lack of jurisdiction,
pursuant to R.C. 5717.02. The BTA granted the tax commissioner’s motion to dismiss and
denied WRHS’s subsequent motion to reconsider the order of dismissal. WRHS filed a timely
appeal in which it raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE BOARD OF TAX APPEALS ERRED IN DISMISSING WRHS’S TAX APPEAL ON THE BASIS OF FAILURE TO COMPLY WITH R.C. 5717.02, AND THEREAFTER DENYING WRHS’S MOTION TO RECONSIDER THE DISMISSAL ORDER.
{¶5} In its sole assignment of error, WRHS argues that the Board of Tax Appeals erred
in dismissing its tax appeal on the basis of failure to comply with R.C. 5717.02, and denying its
motion to reconsider the dismissal order. Specifically, WRHS argues that the BTA’s dismissal
was unreasonable and unlawful because WRHS fulfilled the dual filing requirement of R.C.
5717.02 by sending a notice of appeal to the BTA by certified mail and sending the notice of
appeal to the tax commissioner by regular mail, even though the notice of appeal was not
received by the tax commissioner. This Court disagrees.
{¶6} R.C. 5717.02 sets forth the procedures required for bringing a proper appeal to the
BTA from a final determination of the tax commissioner. It states, in relevant part: 3
[A]ppeals shall be taken by the filing of a notice of appeal with the board, and with the tax commissioner if the tax commissioner's action is the subject of the appeal * * *. The notice of appeal shall be filed within sixty days after service of the notice of the tax assessment, reassessment, valuation, determination, finding, computation, or order by the commissioner * * *.
{¶7} The requirements of R.C. 5717.02 are legislatively mandated and must be strictly
complied with before the subject matter jurisdiction of the BTA may be invoked. American
Restaurant & Lunch Co. v. Glander, 147 Ohio St. 147, 149-150 (1946); Clippard Instrument
Laboratory, Inc. v. Lindley, 50 Ohio St.2d 121, 122 (1977); Craftsman Type, Inc. v. Lindley, 6
Ohio St.3d 82, 85 (1983); Gen. Motors Corp. v. Wilkins, 102 Ohio St.3d 33, 42, 2004-Ohio-
1869, ¶ 68. R.C. 5717.02 specifically requires that a notice of appeal be filed with both the BTA
and the tax commissioner within sixty days after the service of final determination.
{¶8} Furthermore, the courts have repeatedly held that an appellant must timely file its
notice of appeal with the tax commissioner, as well as the BTA, in order to invoke the
jurisdiction of the BTA. Zephyr Room, Inc. v. Bowers, 164 Ohio St. 287 (1955); Fineberg v.
Kosydar, 44 Ohio St.2d 1, 2 (1975). The failure to comply with this requirement properly leads
to a dismissal of the appeal. Akron Standard Div. v. Lindley, 11 Ohio St.3d 10, 12 (1984).
{¶9} In this case, WRHS failed to properly file its notice of appeal with the tax
commissioner. Although the notice of appeal was placed in the regular mail system, there is no
evidence that the notice of appeal was received by the tax commissioner. The Supreme Court of
Ohio has defined filing as actual delivery of a document into the official custody and control of
the appropriate government official. Fulton v. State ex rel Gen. Motors Corp., 130 Ohio St. 494,
498 (1936). Dealing with a statute similar to the statute at issue here, the Eighth District Court of
Appeals has held likewise that filing contemplates both delivery and receipt within the statutory
time limit. Ohio Leitina Co. v. McCormack, 8th Dist. Cuyahoga No. 72127, 1997 WL 781726, 4
*3 (Dec. 18, 1997); See also National Merchandising Corporation v. Giles, 10th Dist. Franklin
No. 77AP-715, 1978 WL 216706, *4 (March 2, 1978) (holding that “* * * the word ‘filed’
means deliverance into the actual custody of the proper officer designated by the statute to be
kept by him as a permanent record of his office and that filing is not complete until the document
is delivered and received.”). Placing a notice of appeal in the regular mail system does not place
the document in the official custody and control of the tax commissioner. Thus, WRHS’s
placement of the notice of appeal in the regular mail system was insufficient to complete the
statutorily required act of filing with the tax commissioner.
{¶10} The statute lists specific instances in which the time of mailing constitutes the
time of filing. These include the use certified mail, express mail, or other authorized delivery
services. R.C. 5717.02. Regular mail is not included in these instances. Therefore, WRHS’s act
of placing its notice of appeal in the regular mail system cannot be counted as the time of filing
under R.C. 5717.02.
{¶11} WRHS argues that the actual notice given to the tax commissioner via the BTA’s
docketing statement is sufficient when there has been an attempted filing by regular mail. The
Supreme Court of Ohio addressed the sufficiency of actual notice via a docketing letter from the
BTA on multiple occasions. See Austin Co. v. Cuyahoga County Bd. Of Revision, 46 Ohio St.3d
192, 194 (1989); Clippard, 50 Ohio St.2d at 122-23. In Austin, the Supreme Court stated that
BTA docketing letters do not replace an appellant’s duty to file its notices of appeal with the
proper authorities. Austin Co., 46 Ohio St.3d at 194. The BTA has no statutory duty to inform,
and an appellant may not substitute the BTA’s voluntary deed for an act required of the appellant
by statute. Id. 5
{¶12} WRHS cannot establish that its notice of appeal was delivered to or received by
the tax commissioner. Placing the notice of appeal in the regular mail system was insufficient to
constitute filing because that act did not place the document in the custody and control of the tax
commissioner. No exception to the general rule that receipt and delivery are required applies in
this case. Thus, WRHS failed to file a notice of appeal with the tax commissioner as required by
R.C. 5717.02, and the BTA properly dismissed the appeal.
III.
{¶13} WRHS’s assignment of error is overruled. The judgment of the Board of Tax
Appeals is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Ohio Board of Tax
Appeals, County of Summit, State of Ohio, to carry this judgment into execution. A certified
copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30. 6
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
HENSAL, P. J. MOORE, J. CONCUR.
APPEARANCES:
DOUGLAS M. EPPLER, Attorney at Law, for Appellant.
SUTTON J. SMITH, Assistant Attorney General, for Appellee.