389 N.E.2d 508

3535 SALEM CORP., FKA COLE-LAYER-TRUMBLE CO., APPELLEE, v. LINDLEY, TAX COMMR., APPELLANT.

No. 78-1384Supreme Court of Ohio.
Decided May 23, 1979.

Taxation — Sales taxes — Exceptions — “True object” test applied.

APPEAL from the Board of Tax Appeals.

3535 Salem Corporation, formerly known as Cole-Layer-Trumble Co., appellee herein, is engaged by public officials to appraise, on a mass scale, political subdivisions, usually for ad valorem
real property tax purposes. In order to perform these engagements, the appellee needs a current tax map, which exhibits land dimensions and boundary lines. It hires aerial survey firms to produce a planimetric map of the area under study, and from this map the appellee prepares the tax map.

The survey company, when engaged, flies over the area to be mapped and photographed. Each location is photographed from two positions so that proper perspective of the physical features of the land is achieved by this “stereo pairs” technique. Next, the film is then developed and inspected, and a number sequence is assigned to the prints to allow for an orderly assemblage of the pictures. The pictures are assembled, photographed as assembled, and reduced. These reductions are called “contact prints.” The contact prints are put onto a glass diapositive, an emulsion-coated piece of glass, and analyzed and measured to extract ground data for the map. The data is plotted on a sheet of mylar and the ground features are drawn on this sheet which becomes the planimetric map. A planimetric map reveals no ground contours, while a topographical map does. The map, contact prints, photo index, and control reports are delivered to the appellee.

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The appellant Tax Commissioner found that the transactions involved were subject to Ohio sales taxes. Upon appeal, the Board of Tax Appeals modified the final order of the commissioner and found that certain transactions between the appellee and the aerial survey firms were not “sales” within the purview of R.C. 5739.01(B). The board found that the subject transactions were for personal services.

The cause is now before this court upon an appeal as of right.

Mr. William J. Brown, attorney general, and Mr. James C. Sauer, for appellant.

Messrs. Turner, Granzow, Spayd Hollenkamp and Mr. Wayne H. Dawson, for appellee.

Per Curiam.

In reversing the Tax Commissioner’s conclusions and finding that the transactions involved here are nontaxable, the Board of Tax Appeals relied upon the “true object” test originally enunciated by this court in Accountant’s Computer Services v Kosydar (1973), 35 Ohio St.2d 120, and as reaffirmed in Miami Citizens National Bank v. Lindley (1977), 50 Ohio St.2d 249.

The board found that the taxpayer “* * * sought as the true object of the transactions with the aerial survey firms the survey information contained on the map. The surveyors were professional engineers and surveyors who not only had expertise, but who demonstrated that expertise in their performance. A considerable amount of time and personal effort produced the map which was transferred. But also the survey firms transferred the contact prints, which provided the basis for the delineations and characterizations of the map, and the control reports, which detailed the analytical information for the triangulation points of the `stereo pairs’ that were used for the filming of the area photographed and mapped. The surveyors did not simply photograph a county; they surveyed and mapped it and delivered the survey information to the * * * [taxpayer]

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upon the mylar sheet in the form of a planimetric map. The * * * [taxpayer] sought a survey of the county, an act done personally by the survey firms as an economic service involving the intellectual and manual personal effort of the surveyors; the appellant did not seek the saleable end product of the surveyors’ skill. The surveys were not performed for a mass market, nor was the map sought available on the market. The * * * [taxpayer] desired an accurate, current survey of the areas surveyed. The aerial survey firms provided a survey, and the media, mylar sheets, on which it was transferred was an inconsequential element of the transaction.”

Under R.C. 5717.04, this court’s statutorily mandated duties in reviewing a decision of the board are limited to determining whether the board’s decision is reasonable and lawful, and not to act as a trier of fact de novo.

The decision of the board is neither unreasonable nor unlawful and it is, therefore, affirmed.

Decision affirmed.

CELEBREZZE, C.J., HERBERT, W. BROWN, MAHONEY, SWEENEY, LOCHER and HOLMES, JJ., concur.

MAHONEY, J., of the Ninth Appellate District, sitting for P. BROWN, J.

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