Summary
affirming the dismissal of reassessment petitions for lack of jurisdiction based on the taxpayer's failure to prepay as required by statute
Summary of this case from Abraitis v. TestaOpinion
No. 76-1072
Decided April 13, 1977.
Taxation — Franchise tax assessment — Application for review and correction — R.C. 5733.11 — Payment of assessment, a prerequisite.
APPEAL from the Board of Tax Appeals.
On September 15, 1975, the Tax Commissioner issued a franchise tax assessment directed to the taxpayer, W.T. Grant Company, for tax years 1972 and 1973, assessing additional tax, penalties, and interest. The taxpayer filed an application for review and correction on September 26, 1975, and simultaneously tendered a check to the commissioner for the amount of the assessment drawn on the Chase Manhattan Bank.
On October 2, 1975, this check was presented for payment by the Treasurer of the state of Ohio. The check was received by Chase Manhattan, but was subsequently returned unpaid with the notation "insufficient funds."
On October 29, 1975, the commissioner determined that he did not have jurisdiction to consider taxpayer's application for review and correction because the assessment upon which the application was based had not been paid in full within 30 days after receipt of the notice of the assessment as required by R.C. 5733.11.
The Board of Tax Appeals affirmed, and the cause is now before this court upon an appeal as a matter of right.
Messrs. Dargusch Hutchins, Mr. Carlton S. Dargusch and Mr. Shelby V. Hutchins, for appellant.
Mr. William J. Brown, attorney general, and Mr. Edward A. Motto, for appellee.
R.C. 5733.11 provides, in pertinent part, that "[u]nless the corporation assessed, to whom such notice of assessment is directed, files within thirty days after service thereof * * * an application for review and correction in writing * * * setting forth with particularity the items of said assessment objected to, together with the reasons for such objections, and makes payment of the full amount of the assessment, said assessment shall become conclusive and the amount thereof shall be due and payable from the taxpayer so assessed to the Treasurer of State." (Emphasis added.)
Under Ohio case law, a dishonored check constitutes failure of payment. Fleig v. Sleet (1885), 43 Ohio St. 53; Hilsinger v. Trickett (1912), 86 Ohio St. 286. See, also, R.C. 1303.75.
In addition, this court has previously passed upon the constitutionality of tax statutes requiring prepayment of a tax assessment as a condition precedent to attacking the assessment ( Pre-Fab Transit co. v. Bowers, 176 Ohio St. 163; Niemeyer v. Collins, 45 Ohio St.2d 63), and found such statutes constitutional.
Since taxpayer did not make payment of the assessment within the time prescribed by R.C. 5733.11, it is now precluded from attacking the assessment.
The decision of the Board of Tax Appeals being neither unreasonable nor unlawful is therefore affirmed.
Decision affirmed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.