Opinion
Nos. 94-788 and 94-789
Submitted December 9, 1994 —
Decided June 28, 1995.
APPEALS from the Board of Tax Appeals, Nos. 91-J-339 and 91-J-340.
Based on the Tax Commissioner's audit of Health Enterprises of America, Inc. ("HEA"), the commissioner assessed sales and use taxes against HEA for the period January 1, 1986 through May 31, 1987. During that period, HEA operated nursing homes in Ohio and six other states. The commissioner also assessed sales and use taxes against appellants Peter C. Kern and his partners, Robert P. Damore, Scott L. Swallen, and Joseph J. Vince, d.b.a. Canterbury Care Centers Management Company ("Canterbury"), based on the commissioner's audit of Canterbury for the period June 1, 1987 through June 30, 1989, when the partnership operated those nursing homes.
HEA and Canterbury conducted food service operations at the nursing homes. Kern was sole shareholder of HEA during the audit period of HEA. After HEA was dissolved, Kern and his partners operated the nursing homes as the successor to HEA, and Kern assumed all HEA liabilities. The record discloses no apparent distinctions in the operation of the nursing homes under the consecutive managements.
HEA and the partnership leased one or more airplanes for use in their business during the audit periods.
The commissioner assessed sales and use taxes on purchases of (1) personal property claimed to be used in the food service operations, including bubble wrap items, toilet tissues, towels, utensils, detergents, storage bags, cups, trash can liners, labels, and other garbage- and drain-related items, (2) labor and material to repair kitchen equipment, (3) the leases and repair of the airplanes, (4) salt water, and (5) supplies, such as tape, gloves, and syringes.
Following an evidentiary hearing, the Board of Tax Appeals ("BTA") affirmed the commissioner's sales and use tax assessments.
These causes are now before this court upon appeals as of right.
Geoffrey E. Webster and Norman J. Frankowski II, for appellants.
Betty D. Montgomery, Attorney General, and Thelma Thomas Price, Assistant Attorney General, for appellee.
The following issues are presented: (1) Did the BTA err in ruling that appellants had failed to establish the various claimed exemptions? (2) Was the issue of exemption under R.C. 5739.02(B)(14) for the sale of ships or vessels used or to be used principally in interstate commerce properly before this court, in light of the fact that the issue was not included in appellants' notices of appeal to the BTA or to this court? (3) Was the commissioner's refusal to remit the statutory penalties an abuse of discretion?
As to the first issue, the BTA rejected appellants' claims because of failure to sustain their burden of proof. The BTA found that the two witnesses who testified about these purchases had no personal knowledge on how appellants used the purchases. Because of this lack in establishing the facts of usage it ruled that appellants had not overcome the presumption of taxability. R.C. 5739.02.
In Federated Dept. Stores, Inc. v. Lindley (1983), 5 Ohio St.3d 213, at 215, 5 OBR 455, at 457, 450 N.E.2d 687, at 688, we said:
"[W]hen an assessment is contested, the taxpayer has the burden `* * * to show in what manner and to what extent * * *' the commissioner's investigation and audit and the findings and assessments based thereon, were faulty and incorrect."
"The Tax Commissioner's findings are presumptively valid, absent a demonstration that those findings are clearly unreasonable or unlawful." Hatchadorian v. Lindley (1986), 21 Ohio St.3d 66, 21 OBR 365, 488 N.E.2d 145, syllabus.
We agree with the BTA that appellants made no such demonstration. Neither of the witnesses, an accountant, who resided in Texas, and a long-term-care consultant, who had not visited the nursing homes, had viewed the purchases or offered any testimony on how the homes actually used the purchases. Their testimony did not overcome the presumption of taxability attaching to these purchases.
Next, as to the R.C. 5739.02(B)(14) exemption claim, appellants' notices of appeal to the BTA did not mention this issue. The failure to assert this claim of error in the notice of appeal is fatal.
"On an appeal from an order of the Tax Commissioner to the Board of Tax Appeals, Section 5611, General Code (Section 5717.02, Revised Code), requires that the notice of appeal shall specify the errors complained of; a notice of appeal which does not enumerate in definite and specific terms the precise errors claimed * * * is insufficient to meet the demands of the statute * * *." (Emphasis sic.) Queen City Valves, Inc. v. Peck (1954), 161 Ohio St. 579, 53 O.O. 430, 120 N.E.2d 310, syllabus.
Moreover, we said, "The statute requires in plain language that the errors complained of be specified. The word, `specify,' according to Black's Law Dictionary (4 Ed.) means `to mention specifically; to state in full and explicit terms * * *.'" Id. at 583, 53 O.O. at 432, 120 N.E.2d at 312-313.
Also, appellants contend that the commissioner erred in refusing to remit the statutory penalty. The commissioner's exercise of discretionary powers must be sustained unless an abuse of that discretion is established.
In Jennings Churella Constr. Co. v. Lindley (1984), 10 Ohio St.3d 67, at 70, 10 OBR 357, at 359, 461 N.E.2d 897, at 900, we said:
"R.C. 5739.13 mandates the imposition of a penalty in the event of an assessment. Remission of the penalty is discretionary. * * *
"Appellate review of this discretionary power is limited to a determination of whether an abuse has occurred. * * *" (Emphasis sic.) See, also, Frankelite Co. v. Lindley (1986), 28 Ohio St.3d 29, 31-32, 28 OBR 90, 92, 502 N.E.2d 213, 215.
The appellants presented no evidence to establish an abuse of discretion. Accordingly, we must affirm the BTA's decision.
Finally, the parties agree that the BTA erred by listing certain items assessed in each case as part of its decision in the other case. The decisions of the BTA are reversed only in regard to these clerical errors, and the causes are remanded to the BTA for their correction.
Decisions affirmed in part, reversed in part and causes remanded.
MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.