Opinion
No. 33679
Decided March 3, 1954.
Appeal — From Tax Commissioner to Board of Tax Appeals — Section 5611, General Code — Notice of appeal — Statutory requirements as to contents — Specific mandatory requirements jurisdictional — Dismissal for failure to comply therewith.
APPEAL from the Board of Tax Appeals.
Frank David, appellant herein, filed with the Board of Tax Appeals and with the Tax Commissioner, appellee herein, notices of appeal from a final order of the Tax Commissioner on a sales tax deficiency. The Tax Commissioner filed a motion to dismiss the appeal on the jurisdictional ground that the notice of appeal filed with him did not set forth or have attached thereto and incorporated therein by reference a copy of the final determination sent by the Tax Commissioner to the taxpayer, as required by Section 5611, General Code.
At the hearing before the Board of Tax Appeals on the motion to dismiss, it was evidenced by affidavit of the Tax Commissioner and by testimony of his secretary that the notice of appeal to the commissioner did not set forth or have attached thereto a copy of the final determination complained of. No appearance was made on behalf of the appellant.
The Board of Tax Appeals found the motion to dismiss well taken and dismissed the appeal.
The cause is in this court on appeal from that decision.
Mr. Chas. K. Correll, for appellant.
Mr. C. William O'Neill, attorney general, and Mr. Jack H. Bertsch, for appellee.
It is admitted by appellant "that a copy of the Tax Commissioner's findings was not attached to the copy of the notice of appeal * * * since appellant assumed that the Tax Commissioner was fully aware of his own findings."
Compliance with the specific and mandatory provision of Section 5611, General Code, that "the notice of such appeal shall set forth or shall have attached thereto and incorporated therein by reference, a true copy of the notice sent by the commissioner to the taxpayer of the final determination complained of," is essential to confer jurisdiction on the Board of Tax Appeals.
The decision of the Board of Tax Appeals dismissing the appeal on the ground of failure to comply with the mandatory jurisdictional statutory requirement is not unreasonable or unlawful. Kent Provision Co., Inc., v. Peck, Tax Commr., 159 Ohio St. 84, 110 N.E.2d 776.
The decision of the Board of Tax Appeals is affirmed.
Decision affirmed.
WEYGANDT, C.J., TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.
It is my opinion that attaching a copy of the final order to the notice of appeal which was filed with the Board of Tax Appeals constituted substantial compliance with Section 5611, General Code.