Opinion
No. 73-862
Decided May 15, 1974.
Taxation — Appeal — From Board of Tax Appeals to Court of Appeals — Decision of board reversed and cause remanded — Appeal to Supreme Court — Judgment affirmed, when.
APPEAL from the Court of Appeals for Mahoning County.
The Tax Commissioner made a sales and use tax assessment against appellee on purchases of asphalt mix used by appellee in its paving business. Appellee paid the full amount of the assessment, but subsequently applied for partial reimbursement, claiming that the base cost of asphalt used by the Tax Commissioner in determining the tax was considerably more than the actual cost of the asphalt to appellee.
The claim for refund was denied by the Tax Commissioner who found that "no evidence of probative value was submitted which could establish the validity of the claimant's contentions that the tax was illegally or erroneously paid as contended."
Upon appeal, the Board of Tax Appeals found that appellee had not sustained its burden of proving "exactly what was the price of the asphalt in question," and that the "evidence is speculative and the board cannot reduce the amount of an assessment on the basis of speculative evidence." Accordingly, the board affirmed the order of the Tax Commissioner.
Appellee then appealed to the Court of Appeals, pursuant to R.C. 5717.04, claiming that the decision of the Board of Tax Appeals was against the manifest weight of the evidence in that "the cost of asphalt per ton used in determining the tax is excessive to the decision of the board."
The Court of Appeals, holding that "the total amount of the assessment * * * and the * * * affirmance by the Board of Tax Appeals for use tax * * * was excessive," that the record before the board contained substantial evidence supporting appellee's claim, and that the board's decision was unlawful, reversed the decision of the Board of Tax Appeals and remanded the cause to the board for rehearing in accordance with the court's opinion.
The allowance of the Tax Commissioner's motion to certify the record brings the cause to this court for review.
Messrs. McLaughlin, DiBlasio Harshman, for appellee.
Mr. William J. Brown and Mr. John C. Duffy, Jr., for appellant.
The only issue presented to this court by the Tax Commissioner is that "a Court of Appeals does not have authority to remand a case to the Board of Tax Appeals for rehearing on the merits."
In Fiddler v. Bd. of Tax Appeals (1942), 140 Ohio St. 34, an appeal from the Board of Tax Appeals involving the valuation of real estate, the Supreme Court found the decision of the board to be unreasonable, and reversed the decision and remanded the cause to the board for revaluation. The syllabus of Fiddler reads:
"Upon appeal from a decision of the Board of Tax Appeals, when it is found from a consideration of the record that the tax valuation placed upon a parcel of Ohio real estate is unreasonable, the decision of the Board of Tax Appeals will be reversed and the cause remanded for revaluation."
G.C. 5611-2, under which the appeal to the Supreme Court was taken in Fiddler, is the predecessor of R.C. 5717.04, the appeal statute in this case. The language of the two sections is virtually identical.
G.C. 5611-2 (118 Ohio Laws 344, 355), relied upon in Fiddler, in pertinent part, read:
"* * * if * * * the Supreme Court is of the opinion that such decision of the Board of Tax Appeals is unreasonable or unlawful, it shall reverse and vacate same or it may modify same * * *."
R.C. 5717.04, in pertinent part, reads:
"If * * * the court [Supreme Court or Court of Appeals] decides that such decision of the board is unreasonable or unlawful, the court shall reverse and vacate the decision or modify it * * *."
It should be noted that R.C. 5717.04 does not deny to the Court of Appeals the power to remand a cause to the Board of Tax Appeals in the event the board's decision is found to be unreasonable or unlawful, except where a modification of the board's order is made.
See, also, Floyd v. Mfgrs. Light Heat Co. (1924), 111 Ohio St. 57, where the Court of Common Pleas reversed a decision of the Tax Commission and remanded the cause for further proceedings. The Tax Commission appealed, claiming that the Court of Common Pleas committed error in remanding the cause. The Supreme Court affirmed, saying that, in a proceeding under G.C. 5611-2, "the Court of Common Pleas, in its discretion, might either make a finding of value and render final judgment or reverse and remand." (Emphasis added.)
Jurisdiction to hear the appeal from the Tax Commission was conferred upon the Court of Common Pleas by G.C. 5611-2 (107 Ohio Laws 550, 551), which contained appeal language similar to that in R.C. 5717.04.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.