Opinion
No. 84-1107
Decided April 24, 1985.
Taxation — Sales tax — Exemption not available, when — Motor vehicle not specially designed and equipped for public utility use — R.C. 5739.01 (P).
APPEAL from the Board of Tax Appeals.
James M. Carpenter, appellant herein, and Miriam G. Carpenter, d.b.a. Carpenter Radio Company, are licensed as a public utility. They hold a certificate of convenience and necessity "* * * to afford car to car, car to land-line, land-line to car, and one-way signalling and message service in the Lima, Ohio area."
On December 2, 1980, appellant purchased a 1981 Pontiac automobile and did not pay the sales tax, claiming exemption as a public utility. Upon being informed of the claimed exemption by the Allen County Auditor, an investigator for the Department of Taxation contacted appellant in January 1981. Appellant informed the investigator that he used the automobile in servicing and repairing equipment in his car radio business. The investigator advised appellant that in order to be exempt the car must be specially designed and equipped for use in the repair and maintenance of a public utility system.
An assessment for the sales tax plus penalty was issued on February 13, 1981 and appellant timely filed a petition for reassessment. Subsequently, appellant had a 110-volt converter installed in his automobile which he uses to operate power tools from his car. The work order and cancelled check paying for this installation were submitted to the Tax Commissioner, appellee herein. Also in evidence were photographs showing that the back seat had been taken out of the car in order to store parts and equipment used in appellant's business.
The Tax Commissioner denied appellant's petition for reassessment. Although conceding that the automobile was used by appellant for purposes of repair and maintenance in his public utility business, the commissioner denied exemption on the basis that the automobile was not specially designed and equipped for such use.
The Board of Tax Appeals affirmed the order of the Tax Commissioner and the cause is now before the court upon an appeal as of right.
Diana G. Dulebohn, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Richard C. Farrin, for appellee.
R.C. 5739.01(E)(2) exempts from the Ohio sales tax, sales in which the purpose of the consumer is:
"* * * to use or consume the thing transferred * * * directly in the rendition of a public utility service * * *."
At the time of the assessment herein the provisions of R.C. 5739.01(P) were codified at R.C. 5739.01(Q).
"`Used directly in the rendition of a public utility service' means that property which is to be incorporated into and will become a part of the consumer's production, transmission, transportation, or distribution system and which retains its classification as tangible personal property after such incorporation; fuel or power used in the production, transmission, transportation, or distribution; and tangible personal property used in the repair and maintenance of the production, transmission, transportation, or distribution system, including only such motor vehicles as are specially designed and equipped for such use." (Emphasis added.)
The Board of Tax Appeals essentially made a factual determination that the installation of the 110-volt converter and the removal of the rear seat of the automobile were inadequate to render the automobile "specially designed and equipped" for purposes of R.C. 5739.01(P).
Appellant's reliance on Athens Home Tel. Co. v. Peck (1953), 158 Ohio St. 557 [47 O.O. 474], and Cleveland Elec. Illum. Co. v. Lindley (1982), 69 Ohio St.2d 71 [23 O.O.3d 118], is misplaced. Neither of those cases construed the specific statutory limitation that the service and maintenance exemption applies to "only such motor vehicles as are specially designed and equipped for such use," which is controlling in this case.
In reviewing decisions of the board, this court has repeatedly stated that it is not a trier of fact de novo, but that it is confined to its statutorily delineated duties (R.C. 5717.04) of determining whether the board's decision is "reasonable and lawful." Citizens Financial Corp. v. Porterfield (1971), 25 Ohio St.2d 53 [54 O.O.2d 191]; Buckeye Power v. Kosydar (1973), 35 Ohio St.2d 135; Cardinal Federal S. L. Assn. v. Bd. of Revision (1975), 44 Ohio St.2d 13 [73 O.O.2d 83]; Conalco v. Bd. of Revision (1978), 54 Ohio St.2d 330 [8 O.O.3d 323]; Alcoa v. Kosydar (1978), 54 Ohio St.2d 447 [8 O.O.3d 459]; Episcopal Parish v. Kinney (1979), 58 Ohio St.2d 199, 201 [12 O.O.3d 197]; Operation Evangelize v. Kinney (1982), 69 Ohio St.2d 346, 347 [23 O.O.3d 315].
The decision of the board being neither unreasonable nor unlawful is hereby affirmed.
Decision affirmed.
CELEBREZZE, C.J., O'NEILL, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.
O'NEILL, J., of the Seventh Appellate District, sitting for SWEENEY, J.