National Delicatessens, Inc. v. Collins

Per Curiam. Appellant contends' that its' records were “substantially, complete., and. accurate.” and .that, the. Tax Commissioner lacked authority ’to institute the test, check herein, .This court finds, that contention to be without merit. , First, appellant’s cash register tapes and guest checks were inadequate based upon statutory, requirements and this court’s decision in McDonald’s v. Kosydar (1975), 43 Ohio St. 2d 5. R. C. 5739.10 authorizes the Tax Commissioner to conduct a test check when a vendor fails to comply ¡with the requirements of.R., C.: 5739.11 that, .it keep1 “complete, and-accurate records óf sales, together, with-.a. record of the tax collected thereon.” ... .. ■ ... , Jn, McDonald’s, supra,, this court held, at page, 8, that “the record-keeping requirements within R. 0.5739.11 -must-be construed in a manner.which will.allow the-T'ax.Commis.sioner .to .determine if .sales taxes which should have-béen charged-by-vendors were actually.collected.and remitted A the state Treasurer * * * [and] in order to be ‘adequate,’ a vendor’s records must enable the Tax Commissioner to ascertain if the proper sales tax was collected according to law.” As in McDonald’s, the.cash register tapes here are inadequate.: Appellant’s tapes-reveal only daily, totals for each of three categories of sales. Such information is not sufficiently detailed to “allow the. Tax Commissioner to determine if sales taxes which should have been, charged * * * were actually collected and remitted * * * .” Further, appellant’s guest checks were found to be incomplete. Appellant contends further that the test check was not [335] conducted “for a representative period,” as required by R. C. 5739.10 and 5739.13. However, the record indicates that the Tax Commissioner’s agent consulted with the taxpayer and, together, they selected the week of May 1, 1974. Appellant has not shown that the test check was not conducted “under conditions, which approximate, as nearly as possible, the conditions under which the business was operated by the taxpayer during the audit period.” Cherry Street Corp. v. Porterfield (1971), 27 Ohio St. 2d 260. Therefore, appellant, having “failed to carry out * * * [its] burden of proving which of * * * [its] sales are exempt (Cherry Street Corp., supra), the decision of the Board of Tax Appeals is neither unreasonable nor unlawful, and is, therefore, affirmed., Decision affirmed. 0’Neill, C. J., Herbert, Corrigan, Stern, Celebhezzb, W. Brown and P. Brown, JJ., concur.