Opinion
No. 30235
Decided May 9, 1945.
Taxation — Appeal to Board of Tax Appeals from Tax Commissioner — Insufficient notice of appeal — sections 5546-9a and 5611, General Code — Deficiency sales tax assessment.
APPEAL from the Board of Tax Appeals.
The Tax Commissioner of Ohio made a deficiency sales tax assessment with penalty against the taxpayer. A petition for re-assessment was filed, a hearing was held and the Tax Commissioner sustained the former assessment.
Thereafter the taxpayer filed with the Board of Tax Appeals the following document, which is designated in its caption as a "petition" and which reads as follows:
"The appellant for his cause of action comes now and says that on the nineteenth day of August the Tax Commissioner, by his agent assessed against this appellant sales tax in the amount of $463.47 and a 15% penalty equalling $69.52, being a sum total of $532.99.
"Appellant further says that within the required time an application was filed for a rehearing and that said matter was assigned for hearing on the thirtieth day of November, 1943, at 9:00 o'clock a. m. and that on the fifteenth day of January, 1944, a notice of said decision was received from the appellee by this appellant. The decision affirming the former filing of the Tax Commissioner.
"Appellant further says that said filing is not correct and is against the law and fact in this case and that this appellant does not owe the sum of $532.99 or any part thereof, and that said tax is wrongfully and illegally assessed against this appellant.
"Wherefore, appellant prays the Board of Tax Appeals to reverse the decision of the Tax Commissioner and for final judgment in favor of this appellant and against the appellee."
Notice of the filing of such "petition" was given the Tax Commissioner.
At the opening of the hearing before the Board of Tax Appeals a motion was made on behalf of the Tax Commissioner to dismiss the appeal for the reason that the appellant had not complied with Section 5611, General Code, by setting forth and incorporating in the notice of appeal by reference "the final order or determination of the Tax Commissioner."
The Board of Tax Appeals sustained the motion and dismissed the appeal on the ground that appellant had failed to comply with the provisions of that section, and thereafter the taxpayer prosecuted an appeal to this court.
Mr. George E. Alcorn, for appellant.
Mr. Hugh S. Jenkins, attorney general, and Mr. A.A. Cartwright, for appellee.
Section 5546-9 a, General Code, provides that a vendor or consumer may appeal to the Board of Tax Appeals "in the same time, manner and form as that provided in Section 5611 of the General Code of Ohio."
Section 5611, General Code, requires that "the notice of such appeal shall set forth or shall have attached thereto and incorporated therein by reference, a true copy of the notice sent by the commissioner to the taxpayer of the final determination complained of, and shall also specify the error or errors therein complained of."
In the instant case, as stated in the per curiam opinion in Kinsman Square Drug Co. v. Evatt, Tax Commr., ante, 52, at page 54, 60 N.E.2d 668, "the appellant's notice falls far short of a substantial compliance with the plain, increased requirements of the amended statute [present Section 5611, General Code (119 Ohio Laws, 48)]."
The decision of the Board of Tax Appeals dismissing the appeal is affirmed.
Decision affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, MATTHIAS and HART, JJ., concur.
TURNER, J., not participating.