Tom's Express, Inc. v. Bowers

OPINION By DUFFY, J. The Tax Commissioner has filed a motion to dismiss appellant’s notice of appeal to this court for the reason “that the notice failed to specify the error or errors in the decision of the Board of which the taxpayer complains as expressly required by §5717.04 R. C.” The taxpayer who is the appellant in this case, filed a notice of appeal setting forth the order of the Board of Tax Appeals, after which there was included in the notice the following: “Appellant says the Board of Tax Appeals erred in finding the final orders of the Tax Commissioner should be affirmed; that this finding is unreasonable and unlawful.” Sec. 5717.04 R. C., at page 173, contains the following in regard to appeals from decisions of the Board of Tax Appeals: “* * * Such appeals shall be taken within thirty days after the date of the entry of the decision of the board on the journal of its proceedings, as provided by such section, by the filing by appellant of a notice of appeal with the court to which the appeal is taken and the board. Such notice of appeal shall set forth the decision of the board appealed from and the errors therein complained of. Proof of the filing of such notice with the board shall be filed with the court to which the appeal is being taken. The court in which notice of appeal is first filed shall have exclusive jurisdiction of the appeal. * * *” [23] The Tax Commissioner has cited in support of his motion the cases of Goldman v. L. B. Harrison, 156 Oh St 403, and American Culvert-Fabricating Co., v. Glander, Tax Commr., 158 Oh St 351. The first case deals with a cross-appeal and has no application to this case. The second case deals with the failure to file the specific grounds of appeal in appealing to the Board of Tax Appeals. In this court where the parties are required to file specific assignments of errors and briefs in support of those specific assignments of errors it would appear that the allegation of the unreasonable and unlawful finding of the Tax Commissioner should be sufficient and the taxpayer should have his day in court. See Castleberry, d. b. a. Cedar Hill Farms v. Evatt, Tax Commr., 147 Oh St 30, a case dealing with an appeal from the Board to a court, and especially the opinion of Judge Zimmerman at page 36. See also Moore v. Foreacher, Recr., Bureau of Unemployment Compensation, 156 Oh St 255, and Matthews v. Administrator Bureau of Unemployment Compensation, 66 Abs 183. Motion to dismiss overruled. BRYANT, PJ, concurs. MILLER, J, not participating.