Summary
noting that " highway use tax assessment * * * was levied against appellant by appellee, the Tax Commissioner of Ohio"
Summary of this case from City of Athens v. McClainOpinion
No. 40190
Decided November 30, 1966.
Taxation — Highway use tax — Tax legally assessed — Taxing officials' power to compromise or abate limited.
APPEAL from the Board of Tax Appeals.
The appellant, Interstate Motor Freight System, a corporation engaged principally in the transportation of property for hire by motor vehicles, operates its vehicles over highways within the state of Ohio.
A highway use tax assessment (axle mile tax) was levied against appellant by appellee, Tax Commissioner of Ohio, based on an audit of appellant's records for a period from January 1, 1956, to September 8, 1956. Payment in full was made under protest and an application for refund of the entire amount was filed and was denied by appellee. An appeal from the order of denial was taken to the Board of Tax Appeals.
Thereafter a highway use tax assessment, plus penalty, was levied against appellant, based on an audit of appellant's records for a period from September 9, 1956, to December 31, 1959. Appellant filed a petition for reassessment. Appellee confirmed the assessment as issued. This order was also appealed to the Board of Tax Appeals.
The two appeals were consolidated for hearing. The board affirmed the orders in both cases. An appeal from the decision of the board brings the cause to this court for review.
Messrs. Stouffer, Myers, Wait Ashbrook, Mr. Vernon L. Stouffer, Messrs. Warner, Norcross Judd and Mr. Leonard D. Verdier, Jr., for appellant.
Mr. William B. Saxbe, attorney general, Mr. Jon A. Ziegler and Mr. Edgar L. Lindley, for appellee.
Appellant seeks reimbursement of taxes alleged to have been erroneously paid as a result of the two subject audits. Appellant does not question the accuracy of such audits or the correctness of the assessments levied as a result of such audits. It admits liability for that part of the second assessment relating to the fourth quarter of 1958 and the entire year of 1959.
Appellant's claim is based on payment of taxes on its own returns covering periods included within the time covered by the subject audits. This payment was by check, drawn by appellant after negotiations with tax department officials relative to disputed and unliquidated tax assessments, which check bore on the back thereof a notation: "In full settlement of all claims for Ohio axle mile tax to and including the 3rd quarter, 1958." Appellant contends that the acceptance of the check by the state estops the state from making any additional assessments for the third quarter of 1958 or any prior quarter.
Estoppel does not apply against the state as to a tax statute. Taxing officials have only such power to compromise or abate legally assessed taxes as may be conferred upon them by statutes. State, ex rel. Donstante, v. Pethtel, Aud., 158 Ohio St. 35. It is not contended that those who accepted the check in the instant case had any statutory authority to compromise appellant's tax liability.
The decision of the Board of Tax Appeals, not being unreasonable or unlawful, is affirmed.
Decision affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, RUTHERFORD and BROWN, JJ., concur.
RUTHERFORD, J., of the Fifth Appellate District, sitting for SCHNEIDER, J.