PENNSYLVANIA RD. CO. v. PORTERFIELD, 22 Ohio St.2d 94 (1970)

258 N.E.2d 106

Nos. 69-698, 69-699 and 69-704Supreme Court of Ohio.
Decided April 22, 1970.

Taxation — Valuation of railroad property for tax purposes — Determination of Commissioner reversed by Board of Tax Appeals — Decision of board reversed by Supreme Court and causes remanded to board — Board cannot remand to Commissioner, but must determine valuation.

Where the Supreme Court reverses a decision of the Board of Tax Appeals, rendered on an appeal from a final determination by the Tax Commissioner as to the valuation for a particular year of a railroad for property tax purposes, and remands the cause to the Board of Tax Appeals for further proceedings, the Board of Tax Appeals cannot thereafter remand the cause to the Tax Commissioner for further consideration but must determine the valuation of the railroad for tax purposes for the particular year involved. (Section 5717.03, Revised Code, construed and applied.)

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APPEAL from the Board of Tax Appeals.

IN PROHIBITION.

IN MANDAMUS.

On March 6, 1967, the Tax Commissioner issued a final order, determining the value of the Pennsylvania Railroad Company’s real and personal public utility property in Ohio for the tax year 1966 to be $175,859,420.

Pursuant to Section 5717.02, Revised Code, the railroad appealed from that order to the Board of Tax Appeals which rendered a decision on April 1, 1968 determining that value to be $153,455,000.

Both the railroad and the Tax Commissioner appealed from that decision to this court, which reversed that decision on December 31, 1968 and remanded the cause to the Board of Tax Appeals for further proceedings. 16 Ohio St.2d 136, 243 N.E.2d 87.

Thereafter, on October 9, 1969 the Board of Tax Appeals rendered a decision, reversing the March 6, 1967 final order of the Tax Commissioner and remanding the cause to the Tax Commissioner “with instructions to compute the `distributive value’ of the real and personal property” of the railroad “for the year 1966 in compliance with the orders and opinions expressed by the Supreme Court * * * in the case reported in 16 Ohio St. 2d at page 136”; and the board directed that “after reconsideration and recomputation the Tax Commissioner issue a new final order herein which final order shall be appealable to the Board of Tax Appeals” pursuant to Section 5717.02, Revised Code.

The railroad has appealed from the October 9, 1969 decision of the Board of Tax Appeals.

In addition to that appeal, the railroad instituted an action in prohibition to prevent the Tax Commissioner from acting in accordance with the Board of Tax Appeals’ decision of October 9, 1969 and a mandamus action to require the Board of Tax Appeals to decide the appeal before it instead of remanding the cause to the Tax Commissioner

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as it endeavored to do by its October 9, 1969 decision.

The appeal, the prohibition action and the mandamus action were considered together by this court.

Messrs. Squire, Sanders Dempsey, Mr. John Lansdale, Mr. William H. Lutz, Jr., and Mr. William F. Lahner, Jr., for Pennsylvania Railroad Company and Penn Central Transportation Company.

Mr. Paul W. Brown, attorney general, Mr. Shelby V. Hutchins an Mr. W. Robinson Watters, for the Tax Commissioner and Board of Tax Appeals.

Per Curiam.[*]

The railroad contends that, where the Supreme Court reverses a decision of the Board of Tax Appeals rendered on an appeal from a final determination by the Tax Commissioner as to the valuation for a particular year of a railroad for property tax purposes, and remands the cause to the Board of Tax Appeals for further proceedings, the Board of Tax Appeals cannot thereafter remand the cause to the Tax Commissioner for further consideration but must determine the valuation of the railroad for tax purposes for the particular year involved.

We are of the opinion that the applicable statutes fully support that contention.

The appeal to the Board of Tax Appeals from the March 6, 1967 determination of value by the Tax Commissioner was taken pursuant to Section 5717.02, Revised Code, which reads, so far as pertinent:

“Appeals from final determinations by the Tax Commissioner of any * * * valuations * * * or orders made by him may be taken to the Board of Tax Appeals by the taxpayer * * *.”

Section 5717.03, Revised Code, provides, so far as pertinent:

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“The decisions of the board may affirm, reverse, vacate, or modify the tax assessments, valuations, determinations, findings, computations, or orders complained of in the appeals or applications determined by it, and its decision shall become final and conclusive for the current year unless reversed, vacated, or modified as provided in Section 5717.04 of the Revised Code. When a decision of the board becomes final the commissioner and all officers to whom such decision has been certified shall make the changes in their tax lists or other records which the decision requires.”

Section 5717.04, Revised Code, provides for an appeal from such a decision of the Board of Tax Appeals to this court and states in part that “if the court decides that such decision of the board is unreasonable or unlawful, the court shall reverse and vacate the decision or modify it and enter final judgment in accordance with such modification.”

As hereinbefore stated, this court reversed the April 1, 1968 decision of the Board of Tax Appeals determining the value of the railroad’s property for the tax year 1966 and remanded the cause to that board for further proceedings.

After that remand, the cause was again before the Board of Tax Appeals as an appeal pursuant to Sections 5717.02 and 5717.03, Revised Code, from a final determination by the Tax Commissioner of that value.

Our statutes require that, on such an appeal, the Board of Tax Appeals must determine that value and cannot remand the cause to the Tax Commissioner for a redetermination of that value by the Commissioner.

Section 5717.03, Revised Code, specifies that the decision of the Board of Tax Appeals “shall become final and conclusive for the current year unless reversed, vacated, or modified” as provided in Section 5717.04, Revised Code, which is the statute providing for an appeal from a decision of the Board of Tax Appeals. A decision of the Board of Tax Appeals, such as the October 9, 1969 decision, that is complained about in the instant case which

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remanded the cause to the Tax Commissioner, could not possibly have such an effect.

In our opinion, our recent decision in Lincoln Properties, Inc., v. Goldslager (1969), 18 Ohio St.2d 154, 248 N.E.2d 57, and the syllabus of that case fully support our conclusion that the Board of Tax Appeals erred in its decision of October 9, 1968 in remanding the cause to the Tax Commissioner for further consideration.

The Tax Commissioner is apparently opposing the contention of the railroad on this appeal because of a fear that he cannot present to the Board of Tax Appeals any evidence in addition to that previously presented to that board. However, the Tax Commissioner is a party to the proceedings before the Board of Tax Appeals and Section 5717.02, Revised Code, provides:

“* * * The board may order the appeal to be heard upon the record and the evidence certified to it by the commissioner, but upon the application of any interested party the board shall order the hearing of additional evidence, and it may make such investigation concerning the appeal as it deems proper.”

Thus, if the reasons, which this court advanced for its reversal of the April 1, 1968 decision of the Board of Tax Appeals, indicate a necessity for “additional evidence,” the Tax Commissioner can offer such evidence.

For the foregoing reasons, in Case No. 69-704, the October 9, 1969 decision of the Board of Tax Appeals is reversed and the cause is remanded to the Board of Tax Appeals.

Our judgment with regard to the appeal from that decision renders moot the issues raised by the prohibition and mandamus actions. Therefore, the petitions in such cases are dismissed.

In case No. 69-704, decision reversed.

In cases Nos. 69-698 and 69-699, petitions dismissed.

O’NEILL, C.J., LEACH, SCHNEIDER, HERBERT, DUNCAN and CORRIGAN, JJ., concur.

LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.

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