Opinion
No. 83-1379
Decided June 27, 1984.
Taxation — Board of Tax Appeals without authority to determine common level of assessment upon appeal — R.C. 5717.03 — Determination of true value will not be disturbed, when — Notice of appeal not filed from board's decision.
APPEAL from the Board of Tax Appeals.
Appellee, J.C. Penney Properties, Inc. ("Penney"), is the owner of 146.385 acres of improved real property located in the city of Columbus, Ohio and used as a major goods retail distribution center.
For the tax year 1980, the Franklin County Auditor determined that the true value of the subject property was $33,603,820 using county appraisal procedures. On January 30, 1981, appellant, the Columbus Board of Education, filed a complaint as to the assessment of real property with the Franklin County Board of Revision, requesting that the value of Penney's property be increased to $42,308,940.
At the hearing before the board of revision, appraisals were submitted by each of the parties and on August 6, 1981, the board of revision rendered its decision, increasing the assessed value of Penney's property to $13,794,370 (thirty-five percent of the true value of $39,412,500).
Appellant and Penney filed appeals to the Board of Tax Appeals from the board of revision order which were consolidated for review. Further expert testimony as to value was presented before the Board of Tax Appeals. In addition, Penney called Robert R. Kinney, then Commissioner of Tax Equalization, to testify regarding the common level of assessment.
It was established that the common level of assessment for Franklin County for 1980 was fixed by the Commissioner of Tax Equalization at thirty-five percent which was being uniformly applied to assess real property. Kinney testified that based on sales-assessment ratio studies, the common level of assessment for Franklin County in 1980 should have been 31.2 percent.
In its order dated August 8, 1983, the Board of Tax Appeals determined that Penney's property had a true value of $39,750,000, and an assessed value of $12,402,000 based upon application of a common level of assessment of 31.2 per cent.
The cause is now before this court upon an appeal as of right.
Messrs. Teaford, Rich Dorsey, Mr. Jeffrey A. Rich and Mr. Matthew T. Fitzsimmons, for appellant.
Fred Siegel Co., L.P.A., Mr. Fred Siegel, Ms. Karen H. Bauernschmidt, Messrs. DiCillo Bell and Mr. Irving Bell, for appellee.
Appellant argues in its first two propositions of law that it was unreasonable and unlawful for the board to apply a common level of assessment of 31.2 percent in determining the taxable value of Penney's property.
We agree. The Board of Tax Appeals has no authority to determine the common level of assessment on appeal. The board's powers upon appeal are enumerated in R.C. 5717.03 which provides, in part:
"In case of an appeal from a decision of a county board of revision, the board of tax appeals shall determine the taxable value of the property whos valuation or assessment by the county board of revision is complained of, or in the event the complaint and appeal is against a discriminatory valuation, shall determine a valuation which shall correct such discrimination, and shall determine the liability of the property for taxation * * *.
"In correcting a discriminatory valuation, the board of tax appeals shall increase or decrease the value of the property whose valuation or assessment by the county board of revision is complained of by a per cent or amount which will cause such property to be listed and valued for taxation by an equal and uniform rule." (Emphasis added.)
Thus, the board is limited to determining the value of subject property on appeal.
The authority to determine the common level of assessment is granted only to the Commissioner of Tax Equalization. R.C. 5715.01 provides that, "[t]he taxable value shall be that per cent of true value in money * * * the commissioner by rule establishes, but it shall not exceed thirty-five per cent." (Emphasis added.)
Pursuant to Am. Sub. H.B. No. 260, effective September 27, 1983, the Department of Tax Equalization has been absorbed by the Department of Taxation and this duty is now upon the Tax Commissioner.
R.C. 5715.19(F) provided in part:
"Upon request of a complainant, the commissioner of tax equalization shall determine the common level of assessment of real property in the county for the year stated in the request * * * which common level of assessment shall be expressed as a percentage of true value * * *. Such determination shall be made on the basis of the most recent available sales ratio studies of the commissioner and such other factual data as the commissioner deems pertinent." (Emphasis added.)
By entry dated January 12, 1981, the Commissioner of Tax Equalization fixed the common level of assessment for Franklin County for 1980 at thirty-five per cent. The Board of Tax Appeals was required to apply this percentage in determining the taxable value of Penney's property.
In view of our determination on this issue, we need not address appellant's argument contesting the admission of certain expert testimony before the board.
In its brief, Penney also raises numerous "assignments of error" challenging the board's decision. However, this court is without jurisdiction to consider those arguments because Penney did not file a notice of appeal from the board's decision. R.C. 5717.04; Goldman v. Harrison (1951), 156 Ohio St. 403 [46 O.O. 238].
No effective challenge having been made to the board's determination of true value, that aspect of the decision is affirmed. The decision of the Board of Tax Appeals insofar as it applies a common level of assessment of 31.2 percent to determine the taxable value of Penney's property is reversed, and the cause is remanded with instructions to recompute the taxable value of the property at issue using the common level of assessment of thirty-five percent.
Decision affirmed in part and reversed in part and cause remanded.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, C. BROWN and J.P. CELEBREZZE, JJ., concur.
HOLMES, J., dissents.