The opinion
[Cite as Crown Communication, Inc. v. Testa, 136 Ohio St.3d 209, 2013-Ohio-3126.]
CROWN COMMUNICATION, INC., ET AL., APPELLANTS, v. TESTA,
TAX COMMR., APPELLEE.
[Cite as Crown Communication, Inc. v. Testa, 136 Ohio St.3d 209,
2013-Ohio-3126.]
Taxation—Personal property—Appeal—Procedure—R.C. 5703.51(D)—R.C.
5711.31—Final assessments by tax commissioner appealable directly to
Board of Tax Appeals—Effect of tax commissioner’s erroneous instruction
to taxpayer that review of final assessments is obtained through petition
for reassessment to tax commissioner—Taxpayer has option in such a case
to treat final assessment as preliminary and to obtain further review by
filing petition for reassessment.
(No. 2012-0780—Submitted June 4, 2013—Decided July 23, 2013.)
APPEAL from the Board of Tax Appeals, No. 2009-A-3187.
____________________
KENNEDY, J.
{¶ 1} Crown Communication, Inc., and Crown Castle GT Company
(collectively, “Crown”) appeal from a decision of the Board of Tax Appeals
(“BTA”) that affirmed the tax commissioner’s final determination of a personal-
property tax assessment for tax year 2006. The tax commissioner and the BTA
both held that Crown had not timely pursued an appeal from final-assessment
certificates previously issued by the tax commissioner. Under this determination,
the commissioner lacked jurisdiction to reach the merits of Crown’s petition for
reassessment and the BTA lacked jurisdiction to reach the merits of Crown’s
challenge to the assessment on appeal.
{¶ 2} Before the court, Crown asserts that the BTA did possess
jurisdiction to reach the merits on appeal because the tax commissioner misled
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Crown by sending the wrong instructions for appeal with the final-assessment
certificates. Crown advances four propositions of law:
Proposition of Law No. 1: Until proper written instructions
explaining the steps required to perfect a tax appeal are provided or
the taxpayer waives his right to receive the instructions, any
personal property assessment remains preliminary. R.C.
5703.51(D) (applied and followed).
Proposition of Law No. 2: If the tax commissioner mails an
assessment labeled as final but then encloses the wrong appellate
instructions, he has created an ambiguity and the taxpayer may
treat the assessment as either preliminary or final.
Proposition of Law No. 3: When the tax commissioner
provides advice to taxpayers, he must not affirmatively mislead
taxpayers and, if he does, he is estopped from relying on any error
that he induced.
Proposition of Law No. 4: If a taxpayer pays a disputed
assessment based upon his right to prosecute a refund claim, the
state may not, without violating the taxpayer’s right to due process
of law, eliminate the taxpayer’s ability to prosecute the claim by
providing erroneous appellate instructions.
{¶ 3} We reject Crown’s estoppel theory set forth in the third proposition
of law and do not reach its due process argument in the fourth proposition of law.
We also disagree with Crown’s first proposition of law, which would have the
effect of holding assessments open indefinitely.
{¶ 4} We do agree with Crown’s second proposition of law. We hold
that by labeling the assessment as final while also including instructions for
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appealing a preliminary assessment, the tax commissioner conferred on Crown
the option to treat the assessment as either preliminary or final. Although Crown
has not articulated a detailed argument in support of this proposition, our review
of the statutes and the case law persuades us that Crown’s actions in following the
appeal instructions preserved the jurisdiction of both the tax commissioner and
the BTA to consider the merits of Crown’s challenge to the assessment.
{¶ 5} Because Crown had the option to treat the assessment as
preliminary, and because Crown timely pursued review first by the Department of
Taxation and then by the BTA, we reverse the BTA’s decision and remand the
cause for further proceedings.
Facts and Procedural History
{¶ 6} Crown, which owns cellular telephone towers in Ohio, was subject
to an increased personal-property tax assessment for tax year 2006. Despite
multiple efforts to obtain review of the increase in its assessment, Crown
ultimately faced a dismissal on jurisdictional grounds without any further
consideration of the merits of its claim.
{¶ 7} In late May 2008, two years after Crown filed its 2006 tax return,
the tax commissioner issued amended preliminary-assessment certificates for tax
year 2006, which increased the listed value of the cell towers. By letter dated
August 7, 2008, shortly before the increased assessment would have become final
and uncontestable under R.C. 5711.25, Crown disputed the increase by requesting
a final assessment. In May of the following year, the commissioner issued final-
assessment certificates, which did not reduce the assessment as requested.
{¶ 8} With the final-assessment certificates, the commissioner included
instructions for appealing the assessment. Crown asserts that the instructions it
received called for filing a petition for reassessment with the tax commissioner.
This is the correct procedure for obtaining review of a preliminary assessment
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under R.C. 5711.31. However, the issuance of a final assessment is appealable
directly to the Board of Tax Appeals pursuant to R.C. 5711.26 and 5717.02.
{¶ 9} Instead of appealing to the BTA, Crown followed the instructions
and filed a petition for reassessment on July 10, 2009. Internal documents of the
Department of Taxation noted that Crown had “appealed Final Assessment to the
Tax Commissioner” and that Crown “should [have] appeal[ed] to BTA” and
contained the notation “Docket to Dismiss per-JAN 7/17/09.” Thus, the
commissioner was aware of Crown’s mistake. Nevertheless, instead of notifying
Crown of the defect, the commissioner issued a letter dated July 20, 2009, which
acknowledged the filing and assigned a case number, implying that the
commissioner intended to conduct a substantive review of the petition.
{¶ 10} Events showed that the commissioner had no such intention. On
September 8, 2009, the commissioner issued a final determination dismissing the
petition. The commissioner concluded that because the assessment had been final
rather than preliminary, Crown should have appealed to the BTA.
{¶ 11} When Crown appealed the final determination to the BTA, the
commissioner moved to affirm, arguing that the BTA had no jurisdiction to
consider the appeal because it was untimely filed. Crown’s appeal had not been
taken within 60 days of the issuance of the final-assessment certificates as
required by R.C. 5717.02. The BTA agreed and affirmed the dismissal of
Crown’s petition.
{¶ 12} In opposing the commissioner’s motion at the BTA, Crown offered
the affidavit of Carmen Ospina. She asserted that she was associated with a
property-tax consultancy and that since 2006, she had been an authorized
representative of Crown. The affidavit recited that on May 22, 2009, Crown
received the final assessments and that each of the assessments included the same
attachment, entitled “Notice to Taxpayer,” a copy of which Ospina attached as an
exhibit. That notice instructs the taxpayer who wishes to contest the increased
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value to file a petition for reassessment with the tax commissioner, not an appeal
to the BTA.
{¶ 13} The tax commissioner filed a reply brief in response, but that reply
does not challenge the Ospina affidavit or deny her assertion that the wrong
instructions had been sent. Instead, the commissioner argues that even if the
instructions were wrong, Crown has no recourse, because estoppel cannot apply
against the state. Attached to the reply brief was an affidavit from Deborah
Pearson, a longtime Taxation Department employee responsible for printing and
preparing the final-assessment certificates in the Crown case. The affidavit
recited that “[a]s part of the preparation, instructions regarding the appeal of the
assessments were to be included in the envelope. See attached Ex. 1 (Notice to
Taxpayer).” The attached “Notice to Taxpayer” instructs the aggrieved taxpayer
to appeal directly to the BTA. She also testified that it had been her practice, as
well as the Department of Taxation’s “long-standing, established administrative
practice and policy, to send the taxpayer information in writing of the steps
necessary to appeal the final assessment to the Board of Tax Appeals.” Notably,
Pearson’s affidavit does not state that the attached “Notice to Taxpayer” was in
fact the form that was sent to Crown. Thus, the Pearson affidavit does not
effectively controvert the Ospina affidavit.1
{¶ 14} The BTA predicated its decision on Crown’s assertion that the
commissioner had transmitted the wrong appeal instruction and then considered
whether that error by the commissioner allowed Crown to obtain review on the
merits despite the untimely appeal. Crown Communication, Inc. v. Levin, BTA
1. At oral argument, counsel for the tax commissioner responded to the question “You didn’t
object in any way to the evidence below” by saying, “That’s actually not true.” What counsel
proceeded to refer to at oral argument was the Pearson affidavit, which was the commissioner’s
attempt to controvert the Ospina affidavit. In fact, no objection of any kind was lodged to the
Ospina affidavit. Obviously, it is one thing to object to an opponent’s evidence, and quite another
to offer contrary evidence of one’s own.
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No. 2009-A-3187, 2012 WL 1257412 (Apr. 5, 2012). Because Crown relied on
an estoppel theory, the BTA resolved the case against Crown by considering and
rejecting that theory. The BTA did not question the assertion that the
commissioner had in fact transmitted the wrong instructions.
{¶ 15} In rejecting the estoppel theory, the BTA distinguished Ormet
Corp. v. Lindley, 69 Ohio St.2d 263, 431 N.E.2d 686 (1982), which Crown had
cited as authority for an exception to the rule against estoppel. The BTA noted
that Ormet involved a long-standing administrative practice by the commissioner,
not a single instance of sending a misleading communication. Because of the
general rule that estoppel does not apply against the state, id. at *2, quoting
Sekerak v. Fairhill Mental Health Ctr., 25 Ohio St.3d 38, 39, 495 N.E.2d 14
(1986), and because Crown had not brought itself within the narrow Ormet
exception, the BTA ordered that the tax commissioner’s dismissal for lack of
jurisdiction be affirmed.
Analysis
{¶ 16} We affirm BTA decisions if they are “reasonable and lawful.”
Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d 954, ¶ 14.
Since the BTA is responsible for determining factual issues, we will affirm the
BTA’s findings if they are supported by reliable and probative evidence. Id. But
the question before us is an issue of law, which we review de novo. Toledo v.
Levin, 117 Ohio St.3d 373, 2008-Ohio-1119, 884 N.E.2d 31, ¶ 26, fn. 3; Akron
Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 128 Ohio St.3d 145, 2010-
Ohio-5035, 942 N.E.2d 1054, ¶ 10.
A. There was no plain error in the BTA’s reliance
on the Ospina affidavit
{¶ 17} The tax commissioner contests the evidentiary basis for Crown’s
jurisdictional argument. The commissioner challenges Ospina’s assertion in her
affidavit that the final assessments arrived at Crown with the wrong appeal
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instructions attached. The commissioner asserts that Ospina’s affidavit cannot
have been from personal knowledge because the assessments were delivered
directly to Crown, not to Ospina. Thus, she could have learned of the contents of
the mailing only from a third person.
{¶ 18} The tax commissioner’s contentions in this regard are unavailing.
Although the Ospina affidavit may fall short of the ideal, the tax commissioner
did not object to the affidavit in the proceedings before the BTA. Because the
evidentiary challenge has thus been waived, the court will correct only a plain
error. See Plain Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 130
Ohio St.3d 230, 2011-Ohio-3362, 957 N.E.2d 268, ¶ 20.
{¶ 19} There is no plain error in relying on the uncontroverted affidavit of
a taxpayer’s consultant and representative with respect to the content of tax
documents used in processing a tax appeal, particularly when the document is
attached and authenticated. Nor can the commissioner claim the benefit of the
presumption that a public official has duly performed the function that the law
requires. Toledo v. Levin, 117 Ohio St.3d 373, 2008-Ohio-1119, 884 N.E.2d 31,
¶ 28. Crown has rebutted the presumption that the commissioner sent the proper
instructions by showing that the wrong instructions were sent.
B. The BTA correctly rejected Crown’s estoppel argument
{¶ 20} On appeal, Crown’s third proposition of law advances its estoppel
argument. We find that the BTA correctly rejected it.
{¶ 21} In general, a taxpayer may not apply estoppel against the state.
Gen. Motors Corp. v. Limbach, 67 Ohio St.3d 90, 92, 616 N.E.2d 204 (1993) (the
court has “consistently held that equity does not apply to the state as to taxing
statutes”), citing Recording Devices, Inc. v. Bowers, 174 Ohio St. 518, 190
N.E.2d 258 (1963), paragraph one of the syllabus (no estoppel against the state
under a taxing statute). Notwithstanding that general disfavor of equitable relief
in tax cases, we have in a very limited context applied a kind of estoppel against
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the state. See Ormet, 69 Ohio St.2d 263, 431 N.E.2d 686, and Recording Devices.
In both Ormet and Recording Devices, the tax commissioner had in writing
committed himself over an extended period to a particular construction of tax law
as applied to the taxpayer; this court held in each case that the commissioner
could not change position and then retroactively assess tax on transactions that
had previously been found by the commissioner to be exempt.
{¶ 22} The BTA correctly determined that the doctrine of those cases does
not apply to this case. There was no retroactive assessment based on a change in
the tax commissioner’s long-held view on a matter of tax law.
C. The Sun Refining doctrine does not apply, because Crown received
notice of the assessment plus instructions for appeal
{¶ 23} As an alternative argument, Crown asserts under its first
proposition of law that the 60-day period for appealing the final-assessment
certificates to the BTA never began to run because the wrong appeal instructions
were sent. In support, Crown cites Sun Refining & Marketing Co. v. Brennan, 31
Ohio St.3d 306, 511 N.E.2d 112 (1987).
{¶ 24} In that case, a state agency sent its decision in uncertified form to
the corporation’s attorney, rather than sending a certified copy to the corporation
as required by R.C. 119.09. The corporation appealed. When the agency later
complained that the appeal was untimely, the corporation pointed to the agency’s
failure to send a certified copy to the affected party as required by R.C. 119.09
and argued that agency compliance with the statute is a condition precedent to the
commencement of the appeal period. This court agreed and held that the time for
appealing from the agency decision would not begin to run until the agency
complied with R.C. 119.09.
{¶ 25} Sun Refining is inapposite. There is no contention that the
Department of Taxation failed to properly serve its final assessment on the
affected party in this case, nor does this case involve R.C. Chapter 119. Instead,
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this case presents the incongruity of labeling the assessment as final while
providing an appeal instruction as though the assessment were preliminary under
R.C. Chapter 5711. Crown obtained both notice of the assessment and
instructions for appeal, which it followed. As discussed below, Crown’s
compliance with those instructions preserved jurisdiction over its challenge to the
assessment.
{¶ 26} Additionally, there is a practical reason for not applying Sun
Refining in this context. It is important not only for the taxpayer but the local
taxing districts for tax assessments to attain finality: the taxpayer needs to know
the extent of its obligation, and local taxing authorities need to know how much
revenue they have. Applying the Sun Refining doctrine would have the negative
effect of holding the assessment open for an indefinite period, which would
thwart the important interest in achieving finality.
D. Under the tax statutes and administrative-law principles,
Crown had the option to treat the assessment as preliminary
{¶ 27} Crown’s second proposition of law states that it had the option of
“treat[ing] the assessment as either preliminary or final.” Although Crown has
not provided a detailed argument in support of this proposition, our review of the
statutes and the case law persuades us that Crown’s actions in following the
appeal instructions preserved the jurisdiction, both of the tax commissioner and
the BTA, to consider the merits of Crown’s challenge to the assessment. Crown’s
failure to fully articulate this argument does not by itself prevent us from
considering it, because we exercise plenary authority to consider issues that
concern the jurisdiction of the tax tribunals. See Elyria v. Lorain Cty. Budget
Comm., 117 Ohio St.3d 403, 2008-Ohio-940, 884 N.E.2d 553, ¶ 13, citing
Colonial Village Ltd. v. Washington Cty. Bd. of Revision, 114 Ohio St.3d 493,
2007-Ohio-4641, 873 N.E.2d 298, ¶ 2; Worthington City Schools Bd. of Edn. v.
Franklin Cty. Bd. of Revision, 124 Ohio St.3d 27, 2009-Ohio-5932, 918 N.E.2d
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972, ¶ 17 (court possesses authority to consider an issue not specified in the notice
of appeal because “[a]n issue that pertains to the BTA’s jurisdiction to hear the
merits of an appeal thereby pertains derivatively to our own jurisdiction”); Brown
v. Levin, 119 Ohio St.3d 335, 2008-Ohio-4081, 894 N.E.2d 35, ¶ 23, fn. 4 (tax
commissioner’s failure to file cross-appeal to preserve jurisdictional objection
does not prevent this court from considering issues bearing on the BTA’s
jurisdiction and, derivatively, our own); Gaston v. Medina Cty. Bd. of Revision,
133 Ohio St.3d 18, 2012-Ohio-3872, 975 N.E.2d 941, ¶ 12, fn. 1.
1. By statute, the commissioner has authority to issue assessments
and the obligation to provide correct appeal instructions
{¶ 28} The preliminary assessment of the value of personal property is the
value reported on the taxpayer’s intercounty tax return showing the value of
property in different taxing districts of different counties in Ohio. R.C. 5711.24.
When administering the personal-property tax, the tax commissioner issues three
types of assessments: a preliminary assessment based on the return, an amended
preliminary assessment, or a final assessment. R.C. 5711.24; R.C. 5711.31; R.C.
5711.26.
{¶ 29} If the tax commissioner issues a preliminary assessment that makes
changes to the taxpayer’s reported taxable value, that is an “amended preliminary
assessment,” and the taxpayer has the right to file a “petition for reassessment,”
which initiates further review by the Department of Taxation itself. R.C. 5711.31.
On the other hand, a final assessment may or may not make changes to the earlier
assessments and, as its name suggests, it is the Department of Taxation’s “last
word” on value, which gives rise to a right of appeal to the BTA. R.C. 5711.26.
{¶ 30} When the tax commissioner issues an assessment, be it an
amended preliminary assessment pursuant to R.C. 5711.31 or a final assessment
pursuant to R.C. 5711.26, the commissioner has the obligation to furnish correct
appeal instructions to the taxpayer. First, R.C. 5703.51(C)(2) requires the
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commissioner to furnish, “[w]ith or before the issuance of an assessment,” a
“written description of the taxpayer’s right to appeal the assessment and an
explanation of the steps required to request administrative review by the
commissioner.” This provision refers to both the “taxpayer’s right to appeal” and
to “administrative review by the commissioner,” and R.C. 5703.50(D)’s definition
of “assessment” makes clear the legislative intent that the requirement apply to
final assessments issued pursuant to R.C. 5711.26. Second, R.C. 5711.31
explicitly requires, in the context of a notice of an amended preliminary
assessment, “instructions on how to petition for reassessment and request a
hearing on the petition.” The crucial question in this case is the jurisdictional
effect of the commissioner’s sending the wrong instructions.
2. The taxpayer may rely on appeal instructions with respect to
determining whether an assessment is preliminary or final
{¶ 31} We hold that by including instructions for filing a petition for
reassessment with an assessment that identified itself as “final,” the commissioner
conferred on Crown the option to follow the instructions and thereby treat the
assessment as preliminary rather than final for appeal purposes.2 There is no
reason—and certainly nothing in the statutes—that compels us to make the
taxpayer suffer adverse consequences because of the commissioner’s own
statutory transgressions.
{¶ 32} Potentially significant to our holding is R.C. 5703.51(H). That
statute states that the commissioner’s “failure * * * to comply with a provision of
this section shall neither excuse a taxpayer from payment of any taxes shown to
be owed by the taxpayer nor cure any procedural defect in a taxpayer’s case.”
The tax commissioner reads this provision as meaning that omissions and errors
committed by him have no jurisdictional significance; in other words, under the
2. Of course, Crown also had the option of treating the assessment as final and appealing directly
to the BTA.
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commissioner’s view, a taxpayer relies on the appeal instructions that the tax
commissioner is required to provide at its own peril. That Crown did not appeal
directly to the BTA, contrary to the appeal instructions provided, constitutes an
insuperable procedural defect, in the commissioner’s view.
{¶ 33} It is certainly true that the statutes detail the means by which
appeals may be perfected and that a taxpayer must follow the statutes to perfect an
appeal properly. But the issue before us does not concern whether an appeal was
perfected in accordance with statute; it concerns whether Crown had the option to
treat the assessment as preliminary rather than final for purposes of obtaining
further review.
{¶ 34} Contrary to the commissioner’s argument, R.C. 5703.51(H) does
not bar our holding. The commissioner’s errors in giving appeal instructions
cannot cure a procedural defect in the taxpayer’s appeal, but that begs the
question whether Crown’s filing a reassessment petition, as it was instructed to do
by the tax commissioner himself, constituted a procedural defect. Under our
holding, it did not. Because there was no procedural defect to cure, R.C.
5703.51(H) does not apply.
3. Under these circumstances, R.C. 5711.26 imposes an obligation
on the commissioner, but does not limit the taxpayer’s right to review
{¶ 35} It could be argued that because R.C. 5711.26 required the tax
commissioner to issue a final, rather than a preliminary, assessment upon Crown’s
application, Crown may not treat the assessment as preliminary rather than final.
We reject that argument. We reiterate that we will not inflict the adverse
consequences of the tax commissioner’s own violation of the statutes on the
taxpayer.
{¶ 36} R.C. 5711.26 does state that the commissioner “shall * * * finally
assess” personal property when a taxpayer has filed a petition for reassessment.
That means that the commissioner had the obligation by statute in this case to
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issue a final assessment rather than a preliminary one. But that obligation is
intended to serve the interest of the taxpayer by releasing the case from the
Department of Taxation and permitting the taxpayer to obtain review by the BTA.
And the burden of properly issuing a final assessment—which by statute includes
the burden of providing correct appeal instructions—falls squarely on the
commissioner, not on the taxpayer.
{¶ 37} When the commissioner issued appeal instructions calling for the
assessment to be treated as if it were preliminary and the taxpayer followed those
instructions, the taxpayer did not suffer the loss of its right to obtain further
review. To the contrary, Crown had a right to receive a final determination that
would address the assessment and that Crown could then appeal to the BTA. On
remand, the commissioner shall issue that determination. Crown will then have
the right to appeal to the BTA, specifying whatever errors it perceives in the
determination.
4. The tax commissioner’s errors did not create a jurisdictional bar
to further review of Crown’s assessment
{¶ 38} Our holding in this case should be understood as an application of
general principles of administrative law to the particular circumstances we
confront here. As a general matter, an administrative determination remains
within the jurisdiction of the administrative agency for at least the duration of the
appeal period. See Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., 28 Ohio
St.3d 20, 502 N.E.2d 590 (1986), paragraph three of the syllabus. The procedures
that relate to amended preliminary assessments under R.C. 5711.31 fall within
this doctrine in the specific context of personal-property tax assessments.
{¶ 39} Indeed, with respect to tax assessments, the commissioner’s
authority is even broader: under R.C. 5703.05(H), the tax commissioner as tax
assessor possesses the authority, “on the commissioner’s own motion” and within
“time limitations provided by law,” to “review[], redetermin[e], or correct[] any
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tax assessments” that have previously been issued. The tax commissioner has no
authority to redetermine or correct existing assessments when (1) the assessments
are under review on appeal from a determination of the commissioner or (2)
further action is statutorily time-barred.
{¶ 40} These statutes confer a general power on the commissioner to
reconsider the assessment (at least within the appeal period) after it has been
issued. Under the particular circumstances of this case, the inclusion of the wrong
appeal instructions, together with Crown’s compliance, operated in the same way
the reconsideration order did in Hal Artz: it preserved the commissioner’s
jurisdiction, and hence Crown’s right to obtain review of the assessment by the
BTA, once the commissioner issued the final determination. Because the statutes
afford Crown a procedural remedy, we do not reach the constitutional due process
argument under Crown’s fourth proposition of law.
Conclusion
{¶ 41} For the foregoing reasons, the BTA erred by determining that
Crown had committed a fatal procedural error when it followed the appeal
instructions furnished by the tax commissioner. We therefore reverse the decision
of the BTA and remand to the tax commissioner with instructions to issue a final
determination that addresses the assessment on the merits. Thereafter, Crown will
have the right to appeal to the BTA in accordance with R.C. 5717.02.
Decision reversed
and cause remanded.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, FRENCH, and
O’NEILL, JJ., concur.
____________________
Buckingham, Doolittle & Burroughs, L.L.P., Steven A. Dimengo, Jason
M. Weigand, and Richard B. Fry III, for appellants.
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Michael DeWine, Attorney General, and Barton A. Hubbard and Sophia
Hussain, Assistant Attorneys General, for appellee.
________________________
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