Opinion
No. 36823
Decided May 3, 1961.
Taxation — Highway use tax — Reciprocity agreements with other states — Cancellation — Effective date — Effect of temporary restraining order.
APPEAL from the Board of Tax Appeals.
This case arose as the result of a highway use tax assessment made under authority of Section 5728.10, Revised Code, against appellant, the Central Motor Lines, Inc., a North Carolina corporation authorized to do business in Ohio. The audit period in this case is from July 1, 1955, to December 31, 1955.
Involved is the Ohio and North Carolina reciprocity agreement of 1947, which exempted appellant from the payment of the highway use tax. Paragraph 7 of that agreement provided:
"This agreement * * * shall continue in force and effect until terminated by 30 days written notice from either state to the other * * *."
On August 9, 1955, the reciprocity board of Ohio notified the Department of Motor Vehicles of North Carolina that it was cancelling the agreement, to become effective in 30 days, i.e., September 8, 1955. On September 23, 1955, the Common Pleas Court of Franklin County issued a temporary restraining order regarding the effectuation of the notice of cancellation. On October 31, 1955, the temporary restraining order was dissolved, vacated and held for naught, and the petition for a restraining order was dismissed.
The Tax Commissioner concluded that appellant's immunity from the highway use tax by the reciprocity agreement ceased upon cancellation of that agreement and assessed a use tax for appellant's truck mileage over Ohio highways on and after September 9, 1955.
The Board of Tax Appeals affirmed the order of the Tax Commissioner.
An appeal from the decision of the Board of Tax Appeals brings the cause to this court for review.
Messrs. Wright, Harlor, Morris, Arnold Glander, Mr. Rudolph Janata, Jr., and Mr. Charles E. Brant, for appellant.
Mr. Mark McElroy, attorney general, Mr. John J. Lokos and Mr. John J. Dilenschneider, for appellee.
The question presented is what was the effective date of the cancellation of the reciprocity agreement. Appellant contends that the temporary restraining order effectively enjoined the operation of the notice of cancellation until October 31, 1955, and exempted it from payment of the tax until that time.
This court is of the opinion that the restraining order of the Court of Common Pleas, issued September 23, 1955, had no legal effect on the cancellation notice of August 9, effective September 8, 1955, since on the latter date the cancellation became effective and there no longer existed a reciprocity agreement with North Carolina. The court could not restrain the reciprocity board from doing that which it had already done. The order of the court vacating the temporary restraining order could not fix a different effective cancellation date.
The notice of cancellation in the instant case is identical with the notice of cancellation to West Virginia in the case of Tom's Express, Inc., v. Bowers, Tax Commr., 170 Ohio St. 489, the reciprocity agreements with both states are practically identical, and the temporary restraining order in that case is in effect the same order in question here.
The decision of the Board of Tax Appeals is affirmed on authority of the Tom's Express case, supra.
Decision affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and RADCLIFF, JJ., concur.
O'NEILL, J., not participating.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.