Summary
In Consolidated Freightways, the jurisdictional issue turned on a purely factual dispute regarding whether the certified mailing that Consolidated Freightways had sent to the board of revision contained the DTE Form 4 notice of appeal (which form was then required by statute to effectuate an appeal).
Summary of this case from Ross v. Cuyahoga Cnty. Bd. of RevisionOpinion
No. 85-324
Decided January 2, 1986.
Taxation — Appeal from decision of county board of revision — Notice-of-appeal requirements — R.C. 5717.01.
APPEAL from the Board of Tax Appeals.
On January 11, 1984, appellee, the Summit County Board of Revision, issued a decision regarding the taxable value of property owned by appellant, Consolidated Freightways, Inc. R.C. 5717.01, effective September 27, 1983, states that "[a]n appeal from a decision of a county board of revision may be taken to the board of tax appeals within thirty days after notice of the decision of the county board of revision is mailed * * *. Such appeal shall be taken by the filing of a notice of appeal, either in person or by certified mail, with the board of tax appeals and with the county board of revision. * * *" (Emphasis added.) R.C. 5715.30, effective September 27, 1983, states that "[t]he tax commissioner shall prescribe for and furnish to all county boards of revision * * * blank forms for * * * notices of appeal * * *." Pursuant to the R.C. 5715.30 mandate, the Tax Commissioner prescribed DTE (Department of Tax Equalization) Form 4 for use when appealing a decision of a county board of revision to the Board of Tax Appeals.
R.C. 5715.29, effective September 27, 1983, states that the Tax Commissioner shall cause the forms prescribed by him to be observed and used. This indicates that the legislature intended that the forms prescribed by the Tax Commissioner be used at all times, by all relevant parties.
On February 3, 1984, counsel for Consolidated Freightways, William A. Zapp, filed a notice of appeal on DTE Form 4 with the Board of Tax Appeals. On February 6, 1984, attorney Zapp sent a certified mailing to the Summit County Board of Revision. The mailing contained a letter which stated, in relevant part:
"Please accept for filing the enclosed Notice of Appeal which I have filed with the Board of Tax Appeals * * * in the referenced case [Consolidated Freightways].
"If you have any questions or need any other information, please don't hesitate to contact me."
On May 14, 1984, the board of revision filed a motion with the Board of Tax Appeals, "* * * to dismiss the * * * [Consolidated Freightways] case for the reason that the appellant, Consolidated Freightways, did not comply with Section 5717.01 of the Ohio Revised Code, and thereby failed to invoke [the Board of Tax Appeals'] appellate jurisdiction." The board of revision asserted that while the February 6, 1984 certified mailing contained the above-quoted cover letter, it did not contain a DTE Form 4 (notice of appeal).
On June 15, 1984, the Board of Tax Appeals held a hearing on the motion to dismiss. Robin L. Alexander, Zapp's secretary, testified that she placed the above-quoted letter and a DTE Form 4 in the February 6, 1984 mailing. The Secretary to the Summit County Board of Revision, Shelley Rexrode, testified that when the certified mailing arrived, on February 7, 1984, it contained the above-quoted cover letter, but no notice of appeal. In fact, she wrote, "2/7/84 No appeal notice enclosed," on the bottom of the cover letter.
On February 1, 1985, the Board of Tax Appeals issued an order dismissing Consolidated Freightways' appeal for want of jurisdiction. The board stated:
"* * * [A]n appeal to the Board is defective and does not vest this Board with jurisdiction to hear a matter unless the appeal if [ sic] filed with the Board of Tax Appeals, and the appropriate county board of revision within thirty days after notice of a decision of a county board of revision is mailed as provided in R.C. 5717.20.
"A review of the record before the Board of Tax Appeals constrains us to find that appellant [Consolidated Freightways] did, in fact, fail to timely file its notice of appeal with the board of revision as mandated by R.C. 5717.01. As such, appellant failed to invoke the jurisdiction of the Board of Tax Appeals. Accordingly, appellee's [Summit County Board of Revision's] motion to dismiss is sustained.
"It is hereby ordered that the instant appeal is dismissed for want of jurisdiction."
The cause is now before this court upon an appeal as of right.
William A. Zapp, for appellant.
Lynn C. Slaby, prosecuting attorney, and Mary Beth Green, for appellee.
In Bd. of Edn. of Mentor v. Bd. of Revision (1980), 61 Ohio St.2d 332 [15 O.O.3d 398], this court held that the notice-of-appeal requirements of R.C. 5717.01 are mandatory, and that adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred. The issue in this case is whether Consolidated Freightways complied with the R.C. 5717.01 notice-of-appeal requirements, and thereby invoked the jurisdiction of the Board of Tax Appeals.
At the time Bd. of Edn. of Mentor v. Bd. of Revision, supra, was decided, R.C. 5717.01 read:
"An appeal from a decision of a county board of revision may be taken to the board of tax appeals within thirty days after notice of the decision of the county board of revision is mailed as provided in Section 5715.20 of the Revised Code * * *. Such appeal shall be taken by the filing of a notice of appeal, either in person or by certified mail, with the board of tax appeals, with the commissioner of tax equalization, and with the county board of revision."
The resolution of this issue requires a review of the record including the transcript of the testimony that was presented to the Board of Tax Appeals during the June 15, 1984 hearing. The scope of this review is limited. It is not the function of this court to substitute its judgment for that of the Board of Tax Appeals on factual issues, but only to determine whether the decision reached by the board is unreasonable or unlawful. Maumee Valley Broadcasting Assn. v. Porterfield (1972), 29 Ohio St.2d 95, 97 [58 O.O.2d 192]. On the other hand, this court has never held, and declines to hold now, that it should simply rubber stamp the board's factual findings.
The record discloses that attorney Zapp prepared a DTE Form 4, and actually filed it with the Board of Tax Appeals on February 3, 1984. The record further discloses that Zapp sent a certified mailing to the Summit County Board of Revision on February 6, 1984. It is undisputed that the certified mailing was received by the board of revision on February 7, 1984, and that it contained a cover letter from Zapp to "Mr. Tim Davis, Auditor Secretary to the Board of Revision [of] Summit County." What is disputed is whether or not the certified mailing also contained a DTE Form 4. Robin Alexander, Zapp's secretary, testified that she placed a DTE Form 4 in the February 6, 1984 certified mailing. However, Shelley Rexrode, the clerk for the board of revision, testified that the received mailing did not contain a DTE Form 4. The factual explanations offered by both witnesses seem plausible, and it is possible that they are both telling the truth as they know it, but that one of them is mistaken. Under such circumstances, evidence that corroborates the sworn testimony is highly relevant, and generally dispositive.
The corroborative evidence tends to support Consolidated Freightways' version of the facts. As stated above, it is undisputed that Zapp prepared and filed a DTE Form 4 with the Board of Tax Appeals on February 3, 1984. Furthermore, again as stated above, it is undisputed that Zapp sent a certified mailing to the board of revision on February 6, 1984. The issue in this case is whether that mailing contained a DTE Form 4. It is more probable than not that the February 6, 1984 certified mailing contained a DTE Form 4 because: (1) Robin Alexander who prepared the mailing, testified that it did; and (2) her sworn testimony is corroborated by the undisputed fact that her office had prepared a DTE Form 4 before the mailing was sent. In consideration of this evidence, and considering that the testimony of Shelley Rexrode was not corroborated by any independent evidence, we find that Consolidated Freightways timely filed the DTE Form 4 with the Summit County Board of Revision.
Our decision today is very narrow and we conclude by emphasizing what we do not hold. We do not hold that we will substitute our judgment for that of the Board of Tax Appeals on factual issues, and we do not hold that litigants can disregard the mandatory notice-of-appeal requirements of R.C. 5717.01. All that we hold is that, in this case, the factual determination of the Board of Tax Appeals is unreasonable insofar as it found that Consolidated Freightways failed to timely file a DTE Form 4 with the Summit County Board of Revision.
Accordingly, the decision of the Board of Tax Appeals is reversed and this cause is remanded to the board for further proceedings not inconsistent with this opinion.
Decision reversed and cause remanded.
CELEBREZZE, C.J., SWEENEY, WISE, HOLMES, PATTON, DOUGLAS and WRIGHT, JJ., concur.
WISE, J., of the Fifth Appellate District, sitting for LOCHER, J.
PATTON, J., of the Eighth Appellate District, sitting for C. BROWN, J.