Opinion
No. 90-2501
Submitted October 11, 1991 —
Decided December 31, 1991.
APPEAL from the Board of Tax Appeals, No. 88-G-758.
Ventura Enterprises, Inc., an Ohio corporation, failed to pay $65,059.25 of sales tax assessments against it and the Tax Commissioner, based upon R.C. 5739.33, assessed appellant, Ronald Kubicki, for that amount as a responsible officer of Ventura Enterprises, Inc.
The Board of Tax Appeals ("BTA"), following a hearing before it at which appellant testified and presented evidence, affirmed the decision of the Tax Commissioner. The BTA found that appellant "failed to establish that the Tax Commissioner's determination was clearly unreasonable or unlawful."
Evidence presented to the BTA established that the only officers of Ventura Enterprises were Harry Shea, President, Thomas White, Vice President and Secretary, and appellant, Vice President. An investor held more than fifty percent of the shares of stock of the corporation and these three officers held the balance of the shares. Each officer was an authorized signer on the corporate checking account and two signatures were required on each check. While Tom White handled the bookkeeping and checking, both White and appellant worked daily at the restaurant operated by the corporation. Appellant participated in obtaining an SBA loan and a liquor license, was in charge of new construction and working with the architects, performed maintenance and various jobs around the restaurant, rebuilt the interior of the restaurant, and helped out as needed. He also participated in discussions of the business affairs of the restaurant and was interested in how the business fared financially. Appellant denies having prepared sales tax returns but does not deny signing one check in payment of a state sales tax obligation. He does dispute his signature on another check for the same purpose.
This cause is now before this court upon an appeal as of right.
Hunter Schank Co., L.P.A., and James M. Perlman, for appellant.
Lee I. Fisher, Attorney General, and Duane M. White, for appellee.
Appellant contends that it is necessary for a corporate officer to exercise actual financial control in order to be held liable under R.C. 5739.33. We disagree.
During the assessment period, R.C. 5739.33 stated that if any corporation required to file sales tax returns and remit sales tax failed to do so "* * * any of its officers, or employees having control or supervision of or charged with the responsibility of filing returns and making payments, shall be personally liable for such failure. * * *" Am.Sub.H.B. No. 319, 132 Ohio Laws, Part I, 2029. The Tax Commissioner found that appellant was a responsible officer. Appellant disputed this and presented evidence to the BTA. However, the BTA affirmed the commissioner and found appellant liable, based upon Spithogianis v. Limbach (1990), 53 Ohio St.3d 55, 559 N.E.2d 449.
The limiting phrase concerning control, supervision or responsibility has been held to apply to officers as well as employees. Weiss v. Porterfield (1971), 27 Ohio St.2d 117, 56 O.O.2d 65, 271 N.E.2d 792.
In reviewing an appeal from a decision of the BTA we do not weigh the evidence. Instead, we decide whether the decision of the BTA was unreasonable or unlawful. The facts presented in the record indicate that the BTA decision was reasonable and lawful and it is affirmed.
Decision affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.