Ross v. Tracy, Unpublished Decision (2-1-1999)

OPINION Appellant Laura F. Ross appeals a judgment of the Board of Tax Appeals which dismissed her appeal from a notice of a final assessment because the Board found appellant had failed to file her notice of appeal properly with the tax commissioner. Appellant assigns four errors to the trial court: ASSIGNMENTS OF ERROR I. THE OHIO BOARD OF TAX APPEALS ERRED BY DISMISSING THE APPEALS OF APPELLANT, LAURA F. ROSS, IN CASE NOS. 97-J-743 AND 97-J-744 ON THE GROUNDS THAT APPELLANT FAILED TO TIMELY FILE HER NOTICE OF APPEAL WITH THE OHIO TAX COMMISSIONER AS REQUIRED BY OHIO REVISED CODE 5717.02. II. THE OHIO BOARD OF TAX APPEALS ERRED IN FAILING TO ADOPT A PRESUMPTION OF TIMELY FILING OF A NOTICE OF APPEAL UPON CIRCUMSTANTIAL PROOF OF TIMELY FILING. III. THE OHIO BOARD OF TAX APPEALS ERRED IN FAILING TO ADMIT THE AFFIDAVIT TESTIMONY OF THREE GOVERNMENT EMPLOYEES TESTIFYING ABOUT THE INTERNAL OPERATIONS OF THEIR RESPECTIVE OFFICES UNDER OHIO RULE OF EVIDENCE 802. IV. THE OHIO BOARD OF TAX APPEALS ERRED BY STRICTLY APPLYING THE OHIO RULES OF EVIDENCE IN AN EVIDENTIARY HEARING BEFORE THE BOARD TO EXCLUDE APPELLANT'S EVIDENCE WHEN SUCH RULES DO NOT APPLY IN PROCEEDINGS BEFORE THE BOARD AND WHEN THE APPLICATION OF SUCH RULES WAS DONE WITHOUT NOTICE IN AN ARBITRARY AND CAPRICIOUS MANNER. The record indicates appellee, Roger W. Tracy, the Ohio Tax Commissioner made final assessments against appellant which total over $55,000. The final determinations were made on or about June 6, 1997. On July 3, 1997, appellant mailed two notices of appeal to the Ohio Board of Tax Appeals, by certified mail. Appellant alleges she submitted notices of her intent to appeal to the Tax Commissioner by ordinary mail, although it appears the notices were sent to an incorrect address. The Tax Commissioner alleged it had conducted a diligent search of the records of the Department of Taxation, and did not find the notices had been received. I R.C. 5717.02 provides in pertinent part: Such appeals shall be taken by the filing of a notice of appeal with the board, and with the tax commissioner if his action is the subject of the appeal, . . . within thirty days after notice of the tax assessment, reassessment, valuation, determination, finding, computation, or order by the commissioner . . . has been given or otherwise evidence as required by law. The notice of such appeal may be filed in person or by certified mail. If the notice of such appeal is filed by certified mail, the date of the United States postmark placed on the sender's receipt by the postal employee to whom the notice of appeal is presented shall be treated as the date of filing. (Emphasis added). In Zephyr Room v. Bowers (1955), 164 Ohio St. 287, the Ohio Supreme Court held compliance with mandatory provisions of Section 5717.02 of the Revised Code is essential to invoke the jurisdiction of the Board of Tax Appeals. In Fineberg v. Kosydar (1975), 44 Ohio St.2d 1, the Ohio Supreme Court held in order to perfect an appeal from the Tax Commissioner to the Board of Tax Appeals, written notice must be filed with the Board and with the Commissioner. Here, the Board found appellant had failed to invoke the jurisdiction of the Board because she had not properly filed her notices with the Tax Commissioner. The record clearly demonstrates appellant mailed her written notices by ordinary mail to the incorrect address, and the notices apparently did not arrive to the proper address, because they were not in the Commissioner's files. In Kent Provision Company v. Peck (1953), 159 Ohio St. 84, the Ohio Supreme Court found a decision of the Board of Tax Appeals which dismisses the appeal on the sole ground of failure to comply with a mandatory jurisdictional requirement of the statute is not unreasonable nor unlawful, Peck at 86. Our review of the record herein leads us to conclude that likewise here, the decision of the Board of Tax Appeals was proper. The first assignment of error is overruled. II In her second assignment of error, appellant asks us to adopt a rule of "presumption of timely filing of a notice of appeal" upon circumstantial proof of timely filing. In Dudukovich v.Loraine Metropolitan Housing Authority (1979), 58 Ohio St.2d 202, the Ohio Supreme Court reviewed a situation where the Housing Authority terminated one of its employees. The employee appealed this action, first to the board of directors and then to the court of common pleas. At issue was the procedure to appeal to the common pleas court. The appellant filed a notice of appeal with the court and sent a copy to the Housing Authority by certified mail. The court of common pleas dismissed the appeal, upon a representation the Housing Authority did not receive the notice within the prescribed time limits. The Supreme Court reversed, finding Ohio uses a presumption of timely delivery where a document is properly mailed in sufficient time to effect delivery within the statutory time in the absence of a showing of late delivery, Dudakovich at 205. Here, appellant cannot take advantage of the presumption for two reasons. First, appellant has failed to demonstrate proper mailing, because her notices were sent to P.O. Box 1090, Columbus, Ohio 43266-0090, instead of P.O. Box 530, Columbus, Ohio 43266-0030. Secondly, the presumption of timely delivery is rebutted by the Tax Commissioner's certification that the notices were not to be found in the file. The second assignment of error is overruled. III and IV Appellant also attacks the Board of Tax Appeals' conduct of the evidentiary hearing, arguing she presented evidence which, if accepted by the Board of Tax Appeals, would have demonstrated her notices of appeal were properly sent to the Ohio Tax Commissioner. As we found in I and II, supra, the evidence demonstrated that the ordinary mail sent to the Ohio Tax Commissioner was sent to an incorrect address, and did not end up in the Ohio Tax Commissioner's records. Appellant's evidence, which dealt with the procedures for delivery of mail would not have rebutted the evidence the appeals were not sent according to the mandatory statutory requirements to the proper place. The third and fourth assignments of error are overruled. For the foregoing reasons, the judgment of the Ohio Board of Tax Appeals is affirmed. By Gwin, J., Wise, P.J., and Reader, J., concur. For the reasons stated in the Memorandum-Opinion on file, the judgment of the Board of Tax Appeals is affirmed. Costs to appellant.