applying de novo review to “question of statutory construction”
How later courts described this case
- applying de novo review to “question of statutory construction”
Written by the judges who cited it.
The opinion
[Cite as Ceccarelli v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681.]
CECCARELLI, APPELLANT, v. LEVIN, TAX COMMR., APPELLEE.
[Cite as Ceccarelli v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681.]
Taxation — Motor-fuel tax — R.C. 5735.12 — Four-year limit on assessments
applicable to assessments on individuals liable as responsible parties
under R.C. 5735.35.
(No. 2009-2217 — Submitted October 13, 2010 — Decided November 24, 2010.)
APPEAL from the Board of Tax Appeals, No. 2007-V-391.
__________________
Per Curiam.
{¶ 1} This is an appeal from a decision of the Board of Tax Appeals
(“BTA”) that affirmed an assessment against the appellant, Jack Ceccarelli, of
motor-fuel-tax liabilities reported but not fully paid for April, May, June, and
August 2000. Ceccarelli was assessed not as a motor-fuel dealer himself, but
rather as a “responsible party” by virtue of his status as owner and president of
Restructure Petroleum Marketing Services, Inc. (“RPMS”). RPMS itself had
previously been assessed for the unpaid taxes, which amounted to $396,565.16.
The tax commissioner found that Ceccarelli was a responsible party who was
liable to pay the amount assessed against the corporation because he was the
indirect owner and the president of RPMS.
{¶ 2} Before the BTA, Ceccarelli did not contest his status as a
responsible party under the statute, but instead asserted that the assessment was
barred because it had been issued after the statutory four-year limitation period
expired. The tax commissioner argued that the limitation statute in question, R.C.
5735.12, applies to assessments issued against motor-fuel dealers, but not to
assessments issued against “responsible parties” who were their officers or
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employees. The BTA agreed with the commissioner’s position and affirmed the
assessment against Ceccarelli.
{¶ 3} On appeal, Ceccarelli again contends that the four-year limitation
also applies to assessments against employees or officers of motor-fuel dealers
who qualify as responsible parties. We agree, and we therefore reverse the
decision of the BTA.
Facts
{¶ 4} Underlying the assessment against Ceccarelli in this case are four
assessments previously issued against RPMS pertaining to motor-fuel taxes
reported but not fully paid for April, May, June, and August 2000. Jack
Ceccarelli was identified as corporate president of RPMS on filings with the
office of the Ohio secretary of state and in correspondence with the Ohio
Department of Taxation. The four months of unpaid taxes amounted to
$396,565.16, finally totaling $665,797 after assessment of interest and penalties.
{¶ 5} RPMS had belatedly filed motor-fuel-tax returns for April, May,
June, and August 2000 on July 7, December 19, September 18, and December 11,
2000, respectively. The commissioner issued his assessment against Ceccarelli as
a responsible party on February 24, 2005 — more than four years after the tax
reports had been filed.
{¶ 6} The record is sparse, but Ceccarelli has not disputed the
commissioner’s findings of fact. The commissioner found that Ceccarelli was not
only president of RPMS, but also “100% owner of Restructure, Inc., who owned
100% of RPMS.” The final determination also relied on filings and
correspondence signed by Ceccarelli to establish that he “had the authority to
exercise control of the corporation’s fiscal responsibilities,” a criterion for
responsible-party liability under R.C. 5735.35(A).
Analysis
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January Term, 2010
{¶ 7} The third paragraph of R.C. 5735.12(A) states: “No assessment
shall be made against any motor fuel dealer for taxes imposed by this chapter
more than four years after the date on which the report on which the assessment
was based was due or was filed, whichever is later. This section does not bar an
assessment against any motor fuel dealer who fails to file a report required by
section 5735.06 of the Revised Code, or who files a fraudulent motor fuel tax
report.” Thus, when motor-fuel-tax reports have been filed late, the four-year
limitation period runs from the time of filing. It is undisputed in the present case
that the commissioner issued the assessment against Ceccarelli more than four
years after the filing of the underlying corporate motor-fuel-tax reports.
{¶ 8} The question is whether the four-year time limitation set forth in
R.C. 5735.12(A) applies to assessments against employees or officers of motor-
fuel dealers who qualify as responsible parties pursuant to R.C. 5735.35. R.C.
5735.35(A)(2) provides that the “sum due for the liability [of responsible parties]
may be collected by assessment in the manner provided in sections 5735.12 and
5735.121 of the Revised Code.” The BTA affirmed the commissioner’s
assessment, holding that the four-year limitation does not apply to responsible-
party assessments. Ceccarelli asserts that the “manner” of assessment against him
as a responsible party incorporates the four-year limitation on assessment against
motor-fuel dealers. This question of statutory construction presents an issue of
law that we determine de novo on appeal. State v. Consilio, 114 Ohio St.3d 295,
2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8.
R.C. 5735.35(A)(2) provides that motor-fuel-tax liabilities of
responsible parties be assessed “in the manner” of assessments
issued against motor-fuel dealers, and the manner of assessment
includes the four-year limitation in R.C. 5735.12(A)
{¶ 9} In Bowshier v. Limbach (1990), 52 Ohio St.3d 140, 556 N.E.2d
463, we considered whether an assessment of sales tax against a responsible
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corporate officer was barred by the four-year limitation on sales-tax assessments
set forth at R.C. 5739.16(A). That section explicitly imposed the time limit on
assessments “issued against a vendor or consumer,” and because of that restrictive
language, we held that the limitation did not apply to assessments against
responsible parties, who were neither vendors nor consumers under the sales-tax
law. The commissioner regards Bowshier as dispositive here.
{¶ 10} As an initial matter, the commissioner points to the fact that the
third paragraph of R.C. 5735.12(A) limits the prohibition against assessments to
assessments issued against “any motor fuel dealer.” Similarly, in Bowshier, R.C.
5739.16(A)’s limitation restricted assessments against vendors and consumers —
not against responsible parties who were assessed when the primary obligors
failed to discharge their legal duties.
{¶ 11} But this argument overlooks a crucial distinction between the
motor-fuel-tax statutes and the sales-tax law. R.C. 5735.12(A) both authorizes
motor-fuel-tax assessments and imposes the four-year limitation on assessments
against motor-fuel dealers. By contrast, the statute of limitation for sales-tax
assessments is set forth in R.C. 5739.16, which is an entirely different section
from the section that authorizes the tax commissioner to make assessments (R.C.
5739.13).
{¶ 12} The distinction is significant because the respective code sections
that address responsible-party liability provide that assessments against
responsible parties should be made “in the manner provided” in the section that
authorizes the making of assessments. R.C. 5739.33 (sales tax); R.C. 5735.35
(motor-fuel tax). As a result, the language of R.C. 5739.33 incorporates the sales-
tax-assessment provisions at R.C. 5739.13, but does not incorporate the four-year
limitation at R.C. 5739.16. By contrast, R.C. 5739.35 does incorporate the time
limitation because the limitation is set forth in R.C. 5735.12.
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{¶ 13} To be sure, the commissioner can argue that the “manner” of
making assessments does not encompass the timing of those assessments, but that
argument is unavailing. “Manner” means “a mode of procedure or way of
acting.” Merriam-Webster’s Collegiate Dictionary (11th Ed.2006) 756. While
time limitations may in some contexts be distinguished from other aspects of a
“mode of procedure,” we see no justification for regarding the time for making an
assessment as any less a part of the statutorily prescribed procedure in this
context. Quite simply, R.C. 5735.12 sets forth a mode of procedure for
assessment that includes the four-year limitation, and R.C. 5735.35 incorporates
that mode of procedure (including the time limitation) by reference.
The commissioner’s exclusive focus on R.C. 5735.12(A) is not justified, because it
would accord no significance to the language of R.C. 5735.35(A)(2)
{¶ 14} The commissioner also argues that because R.C. 5735.12(A) itself
authorizes assessments against responsible parties, there is no need or justification
for an incorporation by reference of the time limitation by virtue of R.C.
5735.35(A)(2). Under the tax commissioner’s reading of the statutes, the proper
method of determining the scope of the four-year limitation on assessments is to
construe the assessment and time-limitation provisions within the four corners of
R.C. 5735.12(A).
{¶ 15} The second paragraph of R.C. 5735.12(A) states as follows:
{¶ 16} “If any person required by this chapter to file reports and pay the
taxes, interest, or additional charge levied by this chapter fails to file the report,
files an incomplete or incorrect report, or fails to remit the full amount of the tax,
interest, or additional charge due for the period covered by the report, the
commissioner may make an assessment against the person based upon any
information in the commissioner’s possession.” (Emphasis added.)
{¶ 17} The third paragraph then sets forth the time limitation:
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{¶ 18} “No assessment shall be made against any motor fuel dealer for
taxes imposed by this chapter more than four years after the date on which the
report on which the assessment was based was due or was filed, whichever is
later.” (Emphasis added.)
{¶ 19} The commissioner relies on the contrast between the broad
language authorizing assessments against “any person” with liabilities under the
motor-fuel-tax law and the third paragraph’s reference to “motor fuel dealer”:
under this reading, the contrasting language means that the four-year limitation
should not be viewed as incorporated into the manner for making assessments
against responsible parties.
{¶ 20} We disagree. To adopt the commissioner’s proposed reading
would violate the precept that we “should construe statutes to give effect to all the
enacted language.” Church of God in N. Ohio v. Levin, 124 Ohio St.3d 36, 2009-
Ohio-5939, 918 N.E.2d 981, ¶ 30, citing State ex rel. Bohan v. Indus. Comm.
(1946), 147 Ohio St. 249, 251, 34 O.O. 151, 70 N.E.2d 888 (courts should “
‘accord meaning to each word of a leglislative [sic] enactment if it is reasonably
possible to do so’”). Namely, the commissioner’s construction of the statutes
would make a nullity out of R.C. 5735.35(A)(2)’s mandate that assessments
against responsible parties be made “in the manner provided in sections 5735.12
and 5735.121 of the Revised Code.”
{¶ 21} Although we acknowledge that the contrasting language of the
second and third paragraphs of R.C. 5735.12(A) may imply that some persons
who are subject to being assessed do not enjoy the benefit of the four-year time
limitation,1 we reject the contention that the employees, officers, or trustees of a
1. The motor-fuel-tax statutes authorize assessments against some persons who may not
themselves qualify either as motor-fuel dealers or as responsible-party employees, officers, or
trustees of a motor-fuel dealer. See, e.g., R.C. 5735.064(C), 5735.101, 5735.123, and 5735.124.
Because the present case involves an assessment against a corporate officer of a motor-fuel dealer,
we need not and do not address the applicability of the four-year limitation to assessments against
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motor-fuel dealer fall within that category. Because assessments against
employees, officers, or trustees of a motor-fuel dealer must be made “in the
manner provided in” R.C. 5735.12, and because that section imposes the four-
year time limit on assessments against the motor-fuel dealer itself, we hold that
assessments against a motor-fuel dealer’s employees, officers, or trustees as
responsible parties are also subject to the four-year limitation period. As a result,
the assessment against Ceccarelli in this case was time-barred.
{¶ 22} Finally, we address the commissioner’s contention that any “doubt
concerning the reasonableness and lawfulness of the Commissioner’s and the
BTA’s interpretation of R.C. 5735.12(A)” should be “resolved against Mr.
Ceccarelli’s statute of limitation claim.” This argument is premised on the
doctrine that a statute of limitations does not restrain the state unless the restraint
is expressly provided for in the statute. See State ex rel. Springfield City School
Dist. Bd. of Edn. v. Gibson (1935), 130 Ohio St. 318, 320-321, 4 O.O. 352, 199
N.E. 185 (holding that although the state is immune from statutes of limitation
and such immunity “can only be waived by express provision to that effect within
the statute,” the state’s immunity does not extend to a political subdivision);
Seeley v. Thomas (1877), 31 Ohio St. 301, 308 (laches does not run against the
state); State ex rel. Parrott v. State Bd. of Public Works (1881), 36 Ohio St. 409,
414 (statute providing for payment of interest with late payment did not apply to
state); Heddleston v. Hendricks (1895), 52 Ohio St. 460, 465, 40 N.E. 408 (no
adverse possession against the state). Unlike the cases cited, however, the present
case involves an explicit limitation on state authority, i.e., the power to issue tax
assessments. By contrast, the cited cases hold only that a general statute that
binds private litigants does not bind the state absent express language to that
any person who is assessed on some basis other than his or her status as an employee, officer, or
trustee of a motor-fuel dealer.
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effect. The cases are inapposite, and the doctrine they articulate does not apply to
the four-year limitation at issue.
Conclusion
{¶ 23} Because the BTA acted unlawfully when it upheld the assessment
of unpaid motor-fuel taxes against Ceccarelli, we reverse the decision of the BTA.
Decision reversed.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Carlile, Patchen & Murphy, L.L.P., Leon Friedberg, and Robert T. Castor,
for appellant.
Richard Cordray, Attorney General, and Barton A. Hubbard and Sophia
Hussain, Assistant Attorneys General, for appellee.
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