Smith v. Tracy - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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SMITH, D.B.A. SMITH'S C. B. SERVICE, APPELLANT, v. TRACY, TAX COMMR.,
APPELLEE.
[Cite as Smith v. Tracy (1997), 80 Ohio St.3d 541.]
Taxation -- Sales tax -- R.C. 5739.12 -- Dispute whether vendor timely filed
August 1995 sales tax return and made payment -- Board of Tax Appeals'
decision reversed and remanded, when.
(No. 97-588 -- Submitted September 30, 1997 -- Decided December 31, 1997.)
APPEAL from the Board of Tax Appeals, No. 96-T-566.

Willie Smith, d.b.a. Smith's C. B. Service, appellant, holds a sales tax
vendor's license. Under this license, he must file monthly sales tax returns and
remit collected sales taxes to the State Treasurer. R.C. 5739.12. Smith
participated in the District Office Direct Deposit Program ("DODD"), in which the
Treasurer has deputized the Tax Commissioner, appellee, to receive tax returns
and payments at the commissioner's district offices.

The commissioner found that the return for August 1995 was filed late and
that he did not receive the August payment. He also concluded that Smith had
filed the September 1995 return and payment late. Consequently, the
commissioner assessed Smith for the August payment and late filing charges and
penalties for both returns.

In his brief and at oral argument, the commissioner concedes that Smith had
timely filed the September return and timely remitted payment. The commissioner
consents to the court's so holding. However, the August return and payment still
remain at issue.

Smith appealed the commissioner's order to the Board of Tax Appeals
("BTA"). At the BTA, he testified that he had delivered the August return and
payment to the Youngstown district office and that the commissioner had

mishandled it. He provided a canceled check for the September payment but
testified that his bank could not locate the check for payment of the August return.

The BTA ruled that Smith, under R.C. 5739.12, needed to file the return and
make the payment to the State Treasurer. Since Smith, according to the BTA, had
not filed either of the returns with the Treasurer, he had not filed the returns or
made the payments timely. The BTA made no finding on if or when Smith had
filed the August return with the commissioner's district office. Consequently, the
BTA affirmed the commissioner's order as to both returns.

This cause is now before this court upon an appeal as a matter of right.
__________________

Willie Smith, pro se.
Betty
D.
Montgomery, Attorney General, and Richard C. Farrin, Assistant
Attorney General, for appellee.
__________________

Per Curiam. Smith asks this court to resolve his dilemma. According to
Smith, the commissioner requires him to file returns and make payments at the
commissioner's district office. The BTA, to the contrary, tells him that he has not
filed the returns timely unless he files them with the Treasurer. Smith concedes
that he owes tax for August 1995, but claims that he has paid this amount and that
the commissioner should credit his account and vacate the penalty and late-filing
charges.

The commissioner acknowledges that he operates the DODD program and
that Smith participated in it. He also declares that the BTA incorrectly decided
this case on the basis that Smith needed to file a return with and make payments to
the Treasurer. Finally, the commissioner notes that he had not alerted the BTA

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about DODD. Nevertheless, he claims that Smith has not established the filing of
the August return or payment of the August remittance.

Under DODD, the Treasurer has deputized the commissioner to receive
returns and payments for sales taxes at the commissioner's district offices. The
Treasurer receives the returns and payments when the commissioner's district
office receives them. Smith participated in this program, filing returns and
making payments at the district office. Thus, as the commissioner concedes, if
Smith timely filed his August 1995 return and remitted the tax at the
commissioner's district office, he satisfied the timely filing requirements of R.C.
5739.12.

Because the BTA ruled that only a filing with the Treasurer satisfied the
timely filing requirements of R.C. 5739.12, it made no factual finding as to the
filing of the August return or the remitting of the collected sales tax at the district
office. Making such findings is the BTA's province, not ours. See Youngstown
Sheet & Tube Co. v. Mahoning Cty. Bd. of Revision (1981), 66 Ohio St.2d 398, 20
O.O.3d 349, 422 N.E.2d 846.

Accordingly, we reverse the BTA's decision as to the August 1995 return
and payment and remand this matter to the BTA for it to decide whether Smith
timely filed the August 1995 return and payment at the district office. We also
reverse the BTA's decision as to the September return and payment, and vacate the
late-filing charge and penalty for the September return, in accordance with the
commissioner's concession.
Decision reversed
and cause remanded.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.

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