Opinion
Nos. 76-481 and 76-495
Decided December 15, 1976.
Taxation — Public utilities — Ad valorem property taxes — Overpayment — Refund authorized by R.C. 5703.05.
APPEALS from the Board of Tax Appeals.
This matter is before the court upon appeals from the order of the Board of Tax Appeals finding that the Tax Commissioner improperly dismissed the application for remission of ad valorem property taxes erroneously assessed to and paid by Cleveland Electric Illuminating Company (C.E.I.), a public utility, for the years 1971 through 1974.
It is agreed by the parties that, in 1970, the auditor of Cuyahoga County correctly reappraised permanent parcel No. 102-8-5 owned by C.E.I., but erroneously listed its assessed value for tax purposes at $973,390 rather than at the correct figure of $97,340, and that the erroneous figure was used by the Tax Commissioner in assessing and apportioning the tax for each of the years in question, resulting in the overpayment claimed. The order appealed from held that, under the admitted facts, the dismissal of the application for remission of taxes was improper; that, under R.C. 5703.05(B), the Tax Commissioner was granted the power and given the duty to exercise "the authority provided by law relative to remitting or refunding taxes or assessments, including penalties and interest thereon, illegally or erroneously assessed or collected, or for any other reason overpaid"; that the provision for such authority is to be found in R.C. 5715.39, as follows: "The * * * Tax Commissioner, in the manner provided by Sections 5703.02 and 5703.05 of the Revised Code * * * may remit taxes * * * illegally assessed and penalties that have accrued because of the negligence or error of an officer required to perform a duty relating to the assessment of property for taxation or the levy or collection of taxes"; and that the meaning of the words "remit" and "remittance," as used in the latter section, is governed by the holding of this court in Defiance College v. Bd. of Tax Appeals (1972), 30 Ohio St.2d 1, requiring that the application be granted. The board reversed the commissioner's order and remanded the matter to the Tax Commissioner with instructions to pass upon the merits of the application.
The Tax Commissioner, asserts in its appeal that relief from erroneous or illegal assessment under Chapter 5727 is limited to that provided in R.C. 5727.47, and consists only of a review and redetermination, if sought by an application in writing within 30 days of the mailing of the certified copy of the order sought to be reviewed; and that R.C. 5715.39 does not provide a public-utility taxpayer with an alternate remedy of refund from the Tax Commissioner.
In its appeal, C.E.I. argues that the appeal to the board from the Tax Commissioner's dismissal was on jurisdictional grounds in an undisputed matter, and that therefore the board should make the order which the commissioner should have ordered (citing Niles Bank v. Evatt, 145 Ohio St. 179), rather than to remand the case for a hearing upon its merits.
The cause is now before this court upon appeals as a matter of right.
Messrs. Squire, Sanders Dempsey, Mr. William H. Conner and Mr. James H. Woodring, for appellee and appellant.
Mr. William J. Brown, attorney general, Mr. John C. Duffy, Jr., for appellant and appellee.
We cannot conclude from the provisions of R.C. 5727.47 that the General Assembly intended that statute to be the only relief available where an error in valuation of part of a public-utility taxpayer's real estate has been incorporated into the Tax Commissioner's assessment and apportionment of the taxpayer's ad valorem tax. The auditor, in erroneously listing the value of the parcel of real estate in question, was acting as the agent of the Tax Commissioner. The auditor was the "officer required to perform a duty relating to the assessment of property for taxation" under R.C. 5715.39. Toledo Edison Co. v. Galvin (1973), 34 Ohio St.2d 187.
Since the Tax Commissioner is the assessor of the property of a public utility under R.C. 5727.06, he is the official, in the first instance, who has authority under R.C. 5715.39 to remit ad valorem taxes illegally assessed. Nor is this duty so apportionable that errors occurring in the listing of real estate values must be considered differently than errors in other values entering into the commissioner's computation. It is the nature of the tax assessed, rather than the nature of the individual items of property upon which values are imposed, which determines the commissioner's authority in this regard.
The Tax Commissioner's argument that our holding in Toledo Edison v. Galvin, supra, limits his authority under R.C. 5703.05(B) and 5715.39 to grant the relief here sought is incorrect. Our decision in that case turned upon its special facts which involved an illegal attempt by the auditor of that county to assess a specific parcel of utility real estate by his handwritten insertion of an assessment upon the treasurer's duplicate. This court held that under that circumstance R.C. 5703.02(I) gives the Board of Tax Appeals jurisdiction to hear the application as one for the remission of a tax against real estate.
We are aware that in many tax statutes the words "remit" and "refund" are not identical in meaning. We perceive that often the language of taxing statutes must be examined, as was done in Defiance College v. Bd. of Tax Appeals, supra, in order to determine whether the power to "remit" includes the power to "refund." We hold, however, that the Board of Tax Appeals was correct in concluding that a refund was authorized here by R.C. 5703.05 in light of that case. The decision of the board is therefore affirmed, but since we see no need to remand the cause to the Tax Commissioner, we sustain C.E.I.'s appeal and thus direct the Board of Tax Appeals to issue the appropriate order.
Decision affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.