Opinion
No. 85-1491
Decided June 25, 1986.
Taxation — Highway use taxes — Failure to file copy of final determination — Appeal properly dismissed prior to amendment of R.C. 5717.02.
APPEAL from the Board of Tax Appeals.
The Tax Commissioner, appellee herein, issued an assessment against Wills Trucking, Inc., for additional highway use tax due for the period January 1, 1979 through December 31, 1982. The assessment was in the amount of $45,085.99, plus $2,054.30 in penalties. On December 28, 1984, appellant filed a notice of appeal with the Board of Tax Appeals, serving notice of same with the Tax Commissioner. Appellant failed to include a copy of the Tax Commissioner's final determination which is required to be included by R.C. 5717.02.
On June 27, 1985, the Tax Commissioner filed a motion to dismiss for failure to properly invoke the board's jurisdiction pursuant to R.C. 5717.02. The board dismissed the appeal on August 20, 1985 for failure to comply with R.C. 5717.02.
This cause is now before the court pursuant to an appeal as of right.
Beery Spurlock Co., L.P.A., and Stephen L. Oliver, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Richard C. Farrin, for appellee.
R.C. 5717.02 stated, in pertinent part:
"* * * The notice of appeal shall have attached thereto and incorporated therein by reference a true copy of the notice sent by the commissioner or director to the taxpayer or enterprise of the final determination complained of, and shall also specify the errors therein complained of."
It is essentially admitted that appellant failed to file the required notice, and that the failure to file occurred prior to the September 25, 1985 amendment to the above statute. The jurisdictional question is therefore foreclosed under authority of our recent case, Hanson Machinery Co. v. Limbach (1986), 22 Ohio St.3d 209, which decided the very issue presented in this case.
R.C. 5717.02 was amended to include the following: "* * * [F]ailure to attach a copy of such notice and incorporate it by reference in the notice of appeal does not invalidate the appeal."
Accordingly, the decision of the Board of Tax Appeals is affirmed.
Decision affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES and DOUGLAS, JJ., concur.
C. BROWN and WRIGHT, JJ., dissent.