Opinion
No. 75-564
Decided January 14, 1976.
Taxation — Appeal to Board of Tax Appeals — Notice of appeal — Not timely filed, when — Letter from legal section of Department of Taxation not a "final order."
APPEAL from the Board of Tax Appeals.
Northlake Hills Cooperative, Inc., appellant herein, was issued a sales tax assessment plus penalty by the Tax Commissioner on November 5, 1974, and service of notice of such assessment was receipted for by a managing agent of appellant at Post Office Box 55355, Indianapolis, Indiana, on November 8, 1974. Thereafter, on December 11, 1974, appellant filed a petition for reassessment. The Tax Commissioner dismissed such petition on February 4, 1975, on the grounds that it was not filed within thirty days after receipt thereof, as required by R.C. 5739.13, and copy of such entry of dismissal was received by appellant on February 12, 1975. Appellant then, by letter to the Tax Commissioner, requested reconsideration of the dismissal on grounds that service of the original assessment on appellant's agent in Indiana was improper and resulted in delay of actual receipt of same until on or about November 12, 1974, which, it was contended, made timely the filing of the petition for reassessment on December 11, 1974.
The letter request for reconsideration was denied by the legal section of the Department of Taxation in a letter dated February 28, 1975. Appellant thereafter filed its appeal with the Board of Tax Appeals on March 20, 1975, and the board dismissed the appeal, after hearing, on the ground that it was not filed within the 30-day period required by R.C. 5717.02.
The cause is now before this court upon an appeal from the May 28, 1975, dismissal entry of the Board of Tax Appeals.
Messrs. Lucas, Prendergast, Albright, Gibson, Brown Newman and Mr. Rankin M. Gibson, for appellant.
Mr. William J. Brown, attorney general, and Mr. John C. Duffy, Jr., for appellee.
The sole question is whether the May 28, 1975, dismissal by the Board of Tax Appeals, based upon failure of the taxpayer to invoke jurisdiction of such board, was unreasonable or unlawful.
There is no question raised by appellant that it did not receive actual notice of the Tax Commissioner's dismissal of its petition for reassessment on February 12, 1975. Appellant contends, however, that the 30 day period for filing an appeal, as required by R.C. 5717.02, did not commence until a ruling was made on its request for reconsideration, and it is argued that such appeal period commenced with the letter of the Department of Taxation dated February 28, 1975.
Fineberg v. Kosydar (1975), 44 Ohio St.2d 1, recently reaffirmed the prior position of this court with respect to the necessity of compliance with the mandatory requirements of R.C. 5717.02, as to the filing of a notice of appeal, in order to invoke jurisdiction of the Board of Tax Appeals. See also Zephyr Room v. Bowers (1955), 164 Ohio St. 287. R.C. 5717.02 requires such notice of appeal to be filed "within thirty days after * * * order by the commissioner has been given * * *."
The board's conclusion, after hearing, that such notice of appeal was not timely filed, effectively rejects appellant's contention that the letter from the Department of Taxation of February 28, 1975, constitutes the final order from which an appeal may be taken. Such conclusion of the board is supported by the record, by the absence of any reconsideration provision in R.C. 5717.02, and by Hileman v. Evatt (1943), 142 Ohio St. 175, wherein an unjournalized letter from a division employee of the Tax Department was held not to have the effect of vacating the last action taken by the commissioner. The last formal act of the commissioner here was the journalized order dated February 4, 1975, which was received by appellant on February 12, 1975.
For reason of the foregoing, the decision of the Board of Tax Appeals is affirmed.
Decision affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.