49 N.E.2d 680

THE URSULINE ACADEMY OF CLEVELAND, APPELLANT v. BOARD OF TAX APPEALS ET AL., APPELLEES.

No. 29404Supreme Court of Ohio.
Decided June 9, 1943.

Taxation — Application for exemption by Board of Tax Appeals — Certificate or affidavit of county treasurer to be attached to application — Certifying that taxes, assessments, penalties and interest paid in full — Sections 5349, 5353 and 5570-1, General Code.

The Board of Tax Appeals may not consider an application for exemption of property under Section 5349 or Section 5353, General Code, unless the application for exemption has attached to it a certificate or affidavit executed by the county treasurer certifying that taxes, assessments, penalties and interest levied and assessed against the property sought to be exempted have been paid in full to the date upon which the application for exemption is filed, or are such as may be remitted under the proviso in Section 5570-1, General Code.

APPEAL from the Board of Tax Appeals.

The Ursuline Academy of Cleveland is an Ohio corporation not for profit; its purpose is the education of females. It conducts several schools in Cuyahoga county which are open to the public without discrimination.

On March 6, 1942, appellant acquired certain real estate in the city of Cleveland Heights, Cuyahoga county, being a part of the original Warrensville Township lot No. 23, sometimes known as the Painter property. This property was acquired for the purpose

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of operating an educational institution and to serve as a home for the teachers. The appellant acquired the property on the basis that it should pay the delinquent taxes and the difference between whatever the delinquent taxes amounted to and $50,000 to grantor. The delinquent taxes amounted to approximately $40,000.

Appellant filed its application for exemption of the property from taxation with the county auditor of Cuyahoga county. This application bears the following treasurer’s certificate:

“I hereby certify that taxes, assessments, penalties and interest on the within described premises have not been paid in full to and including April 28, 1942.

“John J. Boyle, county treas. “Frank M. Brennan, deputy.”

In lieu of the county auditor’s finding the application contains the following:

“Because of confusion in the law no recommendation is made.

“John A. Zangerle, county auditor.”

On tax lien day and at the time of filing the application for exemption, as well as at the time of hearing before the Board of Tax Appeals, the property was not yet being used as a school. Preparations were being made to open the school in September 1942.

This application for exemption from taxation came on to be heard before the Board of Tax Appeals which denied the application upon finding “that the premises sought to be exempted were not being used exclusively on April 12, 1942 (tax lien day 1942), as a ‘public college or academy or a public institution of learning not used with a view to profit’ within the meaning of Section 5349, General Code.”

The cause is here upon appeal under Section 5611-2, General Code.

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Mr. Richard J. Lamb, for appellant.

Mr. Thomas J. Herbert, attorney general, Mr. Perry L. Graham
and Mr. Frank T. Cullitan, prosecuting attorney, for appellees.

TURNER, J.

The Attorney General challenges the jurisdiction of the Board of Tax Appeals to consider this application for exemption of property for the reason that the taxes, assessments, penalties and interest levied and assessed against the property sought to be exempted have not been paid in full to the date upon which the application for exemption was filed.

The exemption is claimed by appellant under Section 5349, General Code. All exemptions under Section 5349, General Code, and other sections of the General Code, are required to be made in accordance with Section 5570-1, General Code. Section 5570-1, General Code, provides in part as follows:

“* * * The Board of Tax Appeals shall not consider an application for exemption of property under any of the sections enumerated herein unless the application has attached thereto a certificate or affidavit executed by the county treasurer certifying that taxes, assessments, penalties and interest levied and assessed against the property sought to be exempted have been paid in full to the date upon which the application for exemption is filed.

“Provided, however, that taxes, penalties and interest which have accrued after the property began its use for the exempt purpose but in no case prior to the date of acquisition of the title to said property by applicant, may be remitted by the county auditor, with the consent of the Board of Tax Appeals.”

The treasurer’s certificate attached to appellant’s application for exemption shows that the taxes, assessments, penalties and interest levied and assessed against the property sought to be exempted have not been paid. Under the statute above quoted a certificate

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of the county treasurer certifying that such taxes, assessments, penalties and interest have been paid in full to the date upon which the application for exemption is filed is a condition precedent to the consideration of the application by the Board of Tax Appeals.

The evidence clearly shows, and no claim to the contrary is made, that the unpaid taxes, assessments, penalties and interest accrued prior to the date of appellant’s acquisition of the property and are such as may not be remitted by the county auditor with consent of the Board of Tax Appeals.

The record shows that the payment of these delinquent taxes wag assumed by appellant as a part of the purchase price of the property. The reason given in the record for not paying the delinquent taxes is that appellant claimed that on the 50-acre parcel of land involved in cause No. 29405, post, 563, taxes had been assessed and collected wrongfully since 1928 and it was appellant’s plan to have the taxes assessed and collected on the 50-acre parcel applied against the delinquent payment on the property in the instant case. In this court appellant claimed that because of the retention by the grantor of a small portion of the property it had been unable to make an accurate separation of the taxes and assessments between the part purchased by appellant and that retained by the grantor.

In appellants reply brief in this court the statement is made that these taxes were paid on December 30, 1942. The record shows that the case was disposed of by the Board of Tax Appeals on December 4, 1942, and the appeal filed in this court December 24, 1942, both of which dates are prior to the date upon which it is claimed that the taxes and assessments were paid. The record further shows that the application does not have attached to it the necessary certificate of payment required by Section 5570-1, supra.

Clearly the Board of Tax Appeals was without jurisdiction to consider the application for exemption of

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the property here in question and this proceeding before the Board of Tax Appeals should have been dismissed for want of jurisdiction. Therefore, the decision of the Board of Tax Appeals should be and hereby is reversed and the cause remanded to the Board of Tax Appeals with direction to dismiss the appeal.

Decision reversed and cause remanded.

MATTHIAS, HART and ZIMMERMAN, JJ., concur.

WEYGANDT, C.J., and BELL, J., concur in the judgment.

WILLIAMS, J., not participating.