Fabricating Co. v. Glander

Full title: AMERICAN CULVERT-FABRICATING CO., APPELLANT v. GLANDER, TAX COMMR.…

Court: Supreme Court of Ohio

Date published: Dec 10, 1952

109 N.E.2d 475 (Ohio 1952)

109 N.E.2d 475

Opinion

No. 33083

Decided December 10, 1952.

Appeal — From Tax Commissioner to Board of Tax Appeals — Notice to specify errors complained of — Section 5611, General Code — Statutory requirement mandatory and jurisdictional.

APPEAL from the Board of Tax Appeals.

The Department of Taxation, Division of Sales and Excise Taxes, levied a sales tax assessment and penalty against the appellant taxpayer which thereafter filed a petition for reassessment, setting forth specific objections to the assessment. The Tax Commissioner denied the petition for reassessment and ordered that the assessment stand as levied. Appellant filed a notice of appeal to the Board of Tax Appeals, stating as grounds for the appeal that no hearing was had before the hearing board of the Division of Sales and Excise Taxes as a basis for the commissioner's determination; that no evidence was adduced; that such hearing board indicated its prejudice in the matter; that there was delay in making a finding; and that the commissioner did not make a complete investigation of the facts. The notice of appeal does not set forth as error any claim that the final order of assessment by the commissioner was incorrect, excessive, unreasonable, or unlawful.

The Board of Tax Appeals found that none of the stated grounds for appeal could be entertained by it, and on its own motion dismissed the appeal for want of jurisdiction.

An appeal from the decision of the Board of Tax Appeals brings the cause to this court for review.

Mr. William J. Kraus, for appellant.

Mr. C. William O'Neill, attorney general, Mr. Thomas R. Lloyd and Mr. J. Ralston Werum, for appellee.

Per Curiam.

Section 5611, General Code, authorizing appeals from determinations of the Tax Commissioner to the Board of Tax Appeals, provides that "such appeals shall be taken by the filing of a written notice" which shall "specify the error or errors therein complained of." Compliance with this specific and mandatory requirement is essential to confer jurisdiction on the board. American Restaurant Lunch Co. v. Glander, Tax Commr., 147 Ohio St. 147, 70 N.E.2d 93. Appellant herein has failed to comply therewith. The notice of appeal to the Board of Tax Appeals fails to set forth wherein the final order of the Tax Commissioner is incorrect or excessive or wherein it is unreasonable or unlawful in any particular.

The decision of the Board of Tax Appeals is affirmed.

Decision affirmed.

WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS and HART, JJ., concur.

MIDDLETON, J., dissents.