460 N.E.2d 255
No. 83-1168Supreme Court of Ohio.
Decided March 7, 1984.
Taxation — Order changing frequency of filing sales and use tax returns — Notice and hearing requirements of R.C. Chapter 119 not applicable, when.
APPEAL from the Board of Tax Appeals.
In May 1974, appellant, Benjamin F. Yale, d.b.a. Yale Photography, was issued a vendor’s license by the Auglaize County Auditor. Shortly after the issuance of the license, appellant received a letter from the License Unit of the Sales and Excise Tax Section of the Ohio Department of Taxation advising him that he was required to file semiannual sales tax returns. Thereafter,
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appellant received at the end of each six-month reporting period, a semiannual sales tax return from the Department of Taxation which included instructions and filing deadlines for semiannual returns. Appellant filed the semiannual returns through July 1976.
In July 1976, the Tax Commissioner, appellee herein, changed appellant’s filing status to require monthly filing of sales tax returns. Beginning in July 1976 appellant began receiving tax returns on a monthly basis. These returns were monthly returns with instructions indicating the monthly filing deadlines.
On March 13, 1979 and on August 15, 1979 appellant was issued two separate assessments for late filing forfeitures and penalties arising due to the fact that appellant failed to file monthly returns for August and September 1978, and for February 1979. Appellant timely filed petitions for reassessment with appellee as to both assessments.
The petitions were consolidated for hearing before appellee, who affirmed the assessments as to the forfeitures, but conditionally remitted the penalties. The Board of Tax Appeals affirmed.
The cause is now before the court upon an appeal as of right.
King, Hermon Berry Co., L.P.A., Mr. Ronald B. Croissant an Mr. Benjamin F. Yale, for appellant.
Mr. Anthony J. Celebrezze, Jr., attorney general, and Ms. Christine T. Mesirow, for appellee.
Per Curiam.
In his sole proposition of law before this court, appellant argues that an order of the Tax Commissioner changing the frequency of filing sales and use tax returns is an adjudication order subject to the notice and hearing requirements of R.C. 119.01 through 119.13.
This argument is without merit. R.C. 119.06 provides in relevant part:
“No adjudication order shall be valid unless an opportunity for a hearing is afforded in accordance with sections 119.01 to 119.13 of the Revised Code. Such opportunity for a hearing shall be given before making the adjudication order except in those situations where this section provides otherwise.
“The following adjudication orders shall be effective without a hearing:
“* * *
“(C) Orders or decisions of an authority within an agency if the rules of the agency or the statutes pertaining to such agency specifically give a right of appeal to a higher authority within such agency or to another agency and also give the appellant a right to a hearing on such appeal.”
R.C. 5717.02 provides that “[a]ppeals from final determinations by the tax commissioner or the commissioner of tax equalization of any preliminary, amended, or final tax assessments, reassessments, valuations, determinations, findings, computations, or orders made by either commissioner may be taken to the board of tax appeals by the taxpayer * * *,” and further provides for hearings in such appeals.
Thus, the notice and hearing requirements of R.C. 119.01
through 119.13
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have no application to determinations made by the Tax Commissioner, regardless of whether they are “[a]djudication” orders under R.C. 119.01(D).
The decision of the Board of Tax Appeals is affirmed.
Decision affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.
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