Dixon v. Bowers

Duffey, J. This is an appeal from a decision of the Board of Tax Appeals affirming a sales tax assessment as made by the Tax Commissioner of Ohio. Appellant operates a bar and food service business. She has a D-2 permit, and since October 1958 also holds a D-5 permit. The audit periods are from January 1, 1957, to April 2, 1959 (assessment K-6433), and from April 3,1959, through December 31, 1960 (assessment K-6434). During these periods, appellant had gross sales of approximately $260,000 and paid only $26.50 in taxes. She filed only four of the eight returns required and has no adequate records of the taxable sales. Accordingly, an assessment against her is controlled by the provisions of Section 5739.10, Revised Code. The amount of gross receipts being known, the burden was upon the vendor-appellant to prove what part, if any, of such receipts were nontaxable or tax-exempt. On the other hand, the gross receipts are only presumptively the basis for taxation, and the vendor is entitled to adduce parol evidence as well as records to sustain her burden. See Jones, d. b. a. Tennessee Barbecue, v. Glander, Tax Commr. (1948), 150 Ohio St., 192; Bloch v. Glander, Tax Commr. (1949), 151 Ohio St., 381. Attention is also directed to the provision of Section 5739.10, Revised Code, that no records need be kept of tax-exempt sales. In the present case, the only records as to sales were a few cash register tapes for a brief period within the audit period. The auditor-examiner used these tapes as a basis for deter *439 mining a percentage breakdown of tbe gross receipts into exempt and nonexempt, taxable and nontaxable sales, and determined tbe initial assessment. Tbe tapes contain a code wbicb appellant testified is (I) beer; (II) wine; (III) whiskey; (IV) food and miscellaneous sales. Appellant requested tbe commissioner to make a reassessment. Upon re-examination, tbe commissioner made an adjustment credit for sales of food for off-premises consumption. She was also granted an increased allowance for sales of liquor below tbe taxable bracket. Tbe only controversy before tbe board and in this court is with respect to tbe allowance on liquor sales. During tbe first portion of tbe audit period tbe exempt bracket was for sales under forty-one cents and in tbe latter portion of tbe period for sales under thirty-one cents. Tbe appellant’s evidence shows that during these periods her prices for bar whiskey per shot were twenty-five cents during tbe first period and thirty cents in tbe latter period. For tbe same periods, prices were forty cents and forty-five cents, respectively, for better quality whiskey. Tbe cash register tapes show sales in amounts of twenty-five cents, fifty cents, sixty-five cents, seventy-five cents, etc., and in tbe latter period sixty cents, seventy-five cents, ninety cents, etc. Tbe auditor’s initial assessment was based upon a percentage allowance computed strictly from tbe figures as registered on tbe tapes at below tbe taxable bracket. Tbe commissioner, upon reassessment, made a further allowance for below bracket sales — apparently about ten per cent. Upon appeal to tbe board, tbe appellant submitted tbe testimony of her husband, tbe manager of tbe business. In bis testimony, be states, in effect, that many of the items registered on tbe tapes at a figure higher than tbe taxable bracket were actually multiple sales, i. e., tbe figure of sixty cents represented two tbirty-eent sales; seventy-five cents represented a thirty and forty-five cent sale, etc. He testified extensively as to tbe nature of tbe business, tbe type of customer, their buying habits, etc. In granting a greater allowance than in tbe auditor’s initial determination for below bracket sales on liquor, it is apparent that the commissioner (and therefore tbe board in affirm *440 ing the commissioner) accepted the proposition that not all figures on the tapes registered at above bracket represented a single taxable sale. Yet we cannot reconcile the allowance granted with any evidence in the record. If Mr. Dixon’s testimony was not worthy of belief, obviously no additional allowance should have been given. If fully believed, the allowance should have been much greater. Of course, a trier of facts is entitled to believe testimony in part and reject it in part. But there must be some rational basis for the selection of that believed and that rejected. No attempt was made by the board to indicate the basis for the allowance given. We can see no evidentiary grounds upon which to justify the allowance as granted, and none has been suggested by the Attorney General. It might be noted that the order of the commissioner is not entitled to any presumption of validity. The hearing before the board is the level at which the taxpayer is entitled to full hearing rights. Bloch v. Glander, Tax Commr. (1949), 151 Ohio St., 381. We recognize that on the administrative level “horse trading” or compromise has probably been a part of tax collection since time immemorial. However, where the taxpayer rejects an allowance and insists upon his right to a full hearing, he is entitled, and the board has the obligation, to decide on the basis of the evidence adduced and produce a result consistent with the evidence. We do not mean to suggest that Mr. Dixon’s testimony or the supporting evidence necessarily had to be accepted either in whole or in part. The board as a trier of facts and not this court has the duty and obligation to evaluate the evidence. However, we are not impressed by the argument that the taxpayer received some favor or benefit in that the board might have rejected the evidence in its entirety. If it could do so, it did not; and not having done so, it must arrive at some supportable conclusion. Accordingly we find that decision of the board to be unreasonable. In the perfection of an appeal from the board, the fifth paragraph of Section 5717.04, Revised Code, requires the “filing by appellant of a notice of appeal” with the board. It also requires the “filing” in this court of a notice of appeal and the filing of a “Proof of the filing of such notice with the board *441 * * The record shows appellant fully complied with these requirements. The sixth paragraph of that section has two provisions applicable here. It requires that the Tax Commissioner be a party appellee. Appellant has done so. It also provides that “Unless waived, notice of the appeal shall be served upon all appellees by registered mail.” (Emphasis added.) In our opinion, this provision does not require the filing of a notice of appeal with the Tax Commissioner. Rather, notice of the fact of an appeal must be given or a waiver obtained. There is no statutory provision as to the filing of proof of either waiver or service. In the event of service, any form of notice is sufficient if it reasonably apprises the appellee of the taking of the appeal. This interpretation of Section 5717.04, Revised Code, is in conflict with a statement made in Evans, d. b. a. Evans’ Pharmacy, v. Bowers, Tax Commr. (1959), 112 Ohio App., 303. However, in that case, this court was concerned with a different question and did not directly deal with the nature of the notice to be given the Tax Commissioner. The decision of the Board of Tax Appeals is reversed and vacated. The case is remanded for further proceedings. Decision reversed. Duffy, P. J., concurs.