Summary
explaining that the commissioner's action must have been "unreasonable, arbitrary and unconscionable" for an appellant to prevail on an abuse-of-discretion claim
Summary of this case from Buckley v. WilkinsOpinion
No. 90-245
Submitted October 25, 1990 —
Decided January 9, 1991.
Taxation — BTA's decision specifying that it had reviewed all the evidence before it, considered the arguments of counsel, and read all the authorities cited does advise the court of the foundation of its finding and is thus neither unreasonable nor unlawful.
APPEAL from the Board of Tax Appeals, No. 82-B-1371.
This case is again before us following our remand in Southwestern Portland Cement Co. v. Limbach (1988), 35 Ohio St.3d 196, 519 N.E.2d 831. In deciding to remand, we observed at 201-202, 519 N.E.2d at 836-837, that:
"The scope of our review of BTA decisions is limited to a determination of whether the decision is unreasonable or unlawful. * * * Appellant must establish that appellee abused her discretion in not granting a requested remission of the statutory penalty. * * *
"The BTA summarily dismissed appellant's contentions concerning its compliance levels. The BTA's decision fails to discuss the evidence presented by appellant or the application of appellee's compliance standards. This is unreasonable and error as no reasons are given for the BTA's decision. * * *
"* * * Regarding the remission of the statutory penalty, the decision of the BTA is reversed and remanded to it for reconsideration. * * *"
On remand, the BTA affirmed the Tax Commissioner's decision of not granting the requested remission.
This cause is before this court upon an appeal as of right.
Frost Jacobs, Dennis J. Barron and Larry H. McMillin, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Richard C. Farrin, for appellee.
The only issue for the BTA's determination was whether the Tax Commissioner was correct in reducing the mandatory statutory penalty from fifteen percent to ten percent.
There is no dispute over the scope of the review by the BTA, nor that it is appellant's burden to show an abuse of the Tax Commissioner's discretion. It is clear that the abuse must be shown to be unreasonable, arbitrary and unconscionable. Jennings Churella Constr. Co. v. Lindley (1984), 10 Ohio St.3d 67, 70, 10 OBR 357, 359, 461 N.E.2d 897, 900.
We remanded the earlier decision to the BTA because of its failure to discuss the evidence presented by the taxpayer or the application of the Tax Commissioner's compliance standards. In other words, no reasons were given for the BTA's decision. Did the BTA on remand disclose the reasons for its decision?
The language employed by the BTA specified that it had reviewed all the evidence before it, had considered the arguments of counsel, and had read all the authorities cited. While we might have wished for more specificity from the BTA, the language nevertheless does advise us of the foundation of the finding.
In its order, upon reconsideration, the BTA discussed in detail the evidence before it. The BTA found that appellant's evidence purportedly showed a compliance level that would warrant a one-hundred-percent remission of penalty. It accepted the commissioner's argument that the critical issue was not a comparison between the tax assessed and total purchases, but, rather, a comparison between the tax assessed and the total taxable purchases. Finally, the BTA identified the taxpayer's chief argument and noted that it was directed to the compliance standards. Presumably, the BTA rejected this argument, since it related to only one of the several factors considered by the Tax Commissioner. The BTA thus concluded that the commissioner was correct in modifying the penalty to ten percent based upon those other unidentified factors, and specifically found that appellant failed to show that the commissioner abused her discretion.
The decision of the BTA is neither unreasonable nor unlawful and it is hereby affirmed.
Decision affirmed.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT and H. BROWN, JJ., concur.
DOUGLAS, J., concurs in judgment only.
RESNICK, J., dissents.