Opinion
No. 29292
Decided August 11, 1943.
Taxation — No return filed by taxpayer for personal and intangible property — Penalty assessed and reduced by Tax Commissioner — Sections 5390 and 5391, General Code (115 Ohio Laws, 567) — Appeal to Board of Tax Appeals — Notice not filed within 30 days from issuance of amended certificates — Letter signed by employee of Intangible Tax Division not final order.
APPEAL from the Board of Tax Appeals.
The appellant filed no returns of his personal and. intangible property for the years 1932 to 1940, inclusive.
On June 27, 1940, the Tax Commissioner assessed the taxable property of the appellant for those years and added to the assessment a penalty of 50 per cent. Section 5390, General Code (115 Ohio Laws, 567), in effect at that time, made it a duty to assess such penalty. Section 5395, General Code (115 Ohio Laws, 570), authorized the final assessment of taxable property. of a taxpayer who had failed to make a return.
On July 29, 1940, the Tax Commissioner, acting under Section 5391, General Code (115 Ohio Laws, 567), issued amended certificates reducing the penalty to 25 per cent. Such section permits the reduction of the penalty assessment to not less than ten per cent of the original amount thereof and provides for transmitting an amended assessment certificate. That section provides further that the decision on such redetermination "shall be final." Irrespective of the procedure pursued, the assessment of a penalty against appellant had been redetermined by the Tax Commissioner.
A letter bearing the date of August 28, 1940, addressed to the Tax Commissioner and signed by the then attorney for appellant, was introduced in evidence at a hearing on June 2, 1942, before an examiner of the Board of Tax Appeals. That letter read:
"I am hereby petitioning for redetermination of the preliminary assessment as amended against O.J. Hileman of Middletown, Ohio."
That apparently original letter, without the file mark of the Department of Taxation, is attached as an exhibit to the transcript of the hearing before the examiner, and the attorney for appellant stated at the hearing that he personally delivered such application to the assistant tax commissioner at the Division of Intangible Tax office.
There was no authority for such a petition for second redetermination as the Tax Commissioner had theretofore redetermined the penalty assessment and issued an amended assessment certificate as required by Section 5391, General Code.
However, on September 24, 1940, the following letter, signed "Division of Intangible Tax" by an employee thereof, was sent to the then attorney for appellant:
"Pursuant to our recent conversation and additional information forwarded by you regarding the personal property tax returns of O.J. Hileman, we wish to advise that we have today issued correction on the 1932 return eliminating that portion of the inventory represented by gas tax. This deduction amounted to $1,200 valuation.
"Regarding the changes on equipment as discussed while you were in our office, we wish to advise that from information forwarded, we can see no reason to reopen these returns and are therefore, considering our file in the matter closed."
On October 23, 1940, appellant filed a notice of appeal with the Board of Tax Appeals.
On April 10, 1941, the Attorney General filed with the Board of Tax Appeals a motion to dismiss the appeal.
On July 9, 1942, the Board of Tax Appeals, after finding that the Tax Commissioner had made an amended assessment for the year 1932 on September 25, 1940, which was less than 30 days prior to the attempted appeal, sustained the motion to dismiss the appeal as to all years excepting 1932, on the ground that the appeal as to the years 1933 to 1940, inclusive, was not filed within 30 days from the issuance of the amended certificates on July 29, 1940. The Board of Tax Appeals overruled the motion to dismiss the appeal as to 1932 and the appeal for that year still stands before that board.
From the action dismissing the appeal as to the years 1933 to 1940, inclusive, appellant appealed to this court under Section 5611-2, General Code.
Mr. Henderson Estes and Mr. H.O. Finkelman, for appellant.
Mr. Thomas J., Herbert, attorney general, and Mr. Aubrey A. Wendt, for appellee.
Assuming, but not deciding, that appellant had a right of appeal, the question is whether the decision of the Board of Tax Appeals dismissing the appeal for the years 1933 to 1940, inclusive, was unlawful.
Appellant states: "Our contention is that the finding of the Tax Commissioner is the letter of September 24, 1940, and that our appeal before the Board of Tax Appeals was filed within the time required by law."
We are of opinion that the letter was not a final order and that the Board of Tax Appeals properly disregarded it. There is no showing that the Division of Intangible Tax or the employee thereof who signed the letter had been assigned such duties pursuant to Section 1464-3 (12), General Code (118 Ohio Laws, 346), as would authorize the vacation of the orders of July 29, 1940, made by the Tax Commissioner.
Section 1464-3 (13), General Code (118 Ohio Laws, 348), at the time in question, required the Tax Commissioner to "maintain a journal * * * in which he shall keep a record of all of his proceedings upon every action taken by him. * * *"
Clearly the letter of September 24, 1940, which does not appear to have been journalized, did not have the effect of vacating the amended assessments made by the Tax Commissioner on July 29, 1940, which the record shows to be the last action taken by the commissioner in respect to the assessments of appellant's personal property for the years 1933 to 1940, inclusive.
As appellant's appeal to the Board of Tax Appeals for those years was not perfected within the limitation prescribed at that time, we are of the opinion that the decision of the Board of Tax Appeals dismissing the appeal is not unlawful and should be and hereby is affirmed. The appeal for the year 1932 is not before us.
Decision affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and BELL, JJ., concur.
WILLIAMS, J., not participating.