Opinion
No. 30175
Decided January 10, 1945.
Supreme Court — Dismissal — Appeal from Board of Tax Appeals — Notice of appeal not filed within 30-day limitation from decision — Section 5611-2, General Code.
APPEAL from the Board of Tax Appeals.
The Tax Commissioner entered a final order making a sales and use tax assessment with penalty against the present appellant, who then prosecuted an appeal to the Board of Tax Appeals.
On July 10, 1944, the Board of Tax Appeals modified and confirmed the assessment made by the Tax Commissioner.
On July 11, 1944, the Board of Tax Appeals mailed a copy of its entry to the then counsel for appellant.
On September 21, 1944, the appellant filed a motion with the Board of Tax Appeals, stating he had never received by registered mail a notice of any decision of the Board of Tax Appeals but that he had received notice by letter from the Department of Taxation, dated September 9, 1944, which was the first notice he had received of any finding or decision of the Board of Tax Appeals. Appellant moved that the Board of Tax Appeals vacate its former entry or decision, refile the same and notify him by registered mail, in order that he might have an opportunity to appeal to the Supreme Court.
On October 4, 1944, the Board of Tax Appeals entered a decision overruling the motion, and finding that under Section 5611-2, General Code, appeals to the Supreme Court should be taken within 30 days of the entry of a decision of the board and that such board had no jurisdiction or authority to entertain and grant a motion filed after the lapse of the 30-day period, citing Industrial Commission v. Glenn, 101 Ohio St. 454, 457, 129 N.E. 687.
On October 4, 1944, the Board of Tax Appeals forwarded to appellant and his present counsel certified copies of the decisions of July 10, 1944, and October 4, 1944.
On October 21, 1944, appellant filed with the Board of Tax Appeals, and subsequently with this court, a notice of appeal to this court, setting forth in such notice the decision entered on the journal of the Board of Tax Appeals on July 10, 1944, and reciting that a certified copy thereof was served upon appellant on October 4, 1944.
The cause is before this court on a motion by the appellee to dismiss for the reason that the appeal was not "taken within thirty days after the date of the entry of the decision of the Board of Tax Appeals" as required by Section 5611-2, General Code.
Messrs. Betts Betts, for appellant.
Mr. Thomas J. Herbert, attorney general, and Mr. Perry L. Graham, for appellee.
Section 5611-2, General Code, relating to appeals to this court from decisions of the Board of Tax Appeals, reads in part as follows:
"Such appeals shall be taken within thirty days after the date of the entry of the decision of the Board of Tax Appeals on the journal of its proceedings, as provided by Section 5611-1 of the General Code of Ohio, by the filing by appellant of a notice of appeal with the Supreme Court of Ohio and with the Board of Tax Appeals. Such notice of appeal shall set forth the decision of the Board of Tax Appeals appealed from and the errors therein complained of. * * *"
The notice of appeal filed in the present proceeding on October 21, 1944, sets forth the entry of July 10, 1944, as the decision of the Board of Tax Appeals from which an appeal is taken.
The notice of appeal not having been filed within thirty days after the date of the entry of the Board of Tax Appeals, as required by Section 5611-2, General Code, the present appeal is dismissed.
Appeal dismissed.
WEYGANDT, C.J., ZIMMERMAN, TURNER and MATTHIAS, JJ., concur.