The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as New
York Frozen Foods, Inc. v. Bedford Hts. Income Tax Bd. of Rev., Slip Opinion No. 2016-Ohio-
7582.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-7582
NEW YORK FROZEN FOODS, INC., ET AL., APPELLANTS AND CROSS-APPELLEES,
v. BEDFORD HEIGHTS INCOME TAX BOARD OF REVIEW ET AL., APPELLEES AND
CROSS-APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as New York Frozen Foods, Inc. v. Bedford Hts. Income Tax Bd.
of Rev., Slip Opinion No. 2016-Ohio-7582.]
Taxation—Municipal income tax—Refunds—City ordinance barred an entity from
changing its separate return to a consolidated return when filing an
amended return—Ordinance prohibited any change in the method of
accounting when filing an amended return—Decision of the Board of Tax
Appeals affirmed.
(No. 2015-0575—Submitted August 17, 2016—Decided November 3, 2016.)
APPEAL from the Board of Tax Appeals, No. 2012-55.
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SUPREME COURT OF OHIO
LANZINGER, J.
{¶ 1} This appeal involves the attempt to obtain a tax refund by a municipal
income taxpayer, New York Frozen Foods, Inc. (“Frozen Foods”), which originally
filed its Bedford Heights income-tax returns on a separate-entity basis for tax years
2005, 2006, and 2007. In March 2010, Frozen Foods, together with its affiliates,
filed consolidated amended returns for those years and claimed a refund of taxes it
had previously paid based on its separate returns. The refund amount claimed was
$698,294. Regional Income Tax Agency (“RITA”) denied the refund in its capacity
as the city’s tax administrator. This result was sustained by the Bedford Heights
Income Tax Board of Review and affirmed by the Board of Tax Appeals (“BTA”).
{¶ 2} Now on appeal, Frozen Foods presents several reasons why the BTA
erred in affirming the denial of its refund claim. Bedford Heights cross-appealed
and maintains that the BTA erred by failing to deny the refund on an alternative
ground.
{¶ 3} We hold that the BTA erred by failing to find that the change from
filing a separate return to filing a consolidated return was a “change in method of
accounting” prohibited by the city ordinance in pursuing a refund claim. We
therefore affirm the BTA’s denial of the refund claim on the alternate ground that
the change constituted a change in the method of accounting prohibited by the city
ordinance.
Factual Background
{¶ 4} Before us is a record certified by the Bedford Heights Income Tax
Board of Review plus a set of stipulations advanced at the BTA covering the
following basic facts:
Frozen Foods timely filed separate-entity municipal-income-tax returns for tax
years 2005, 2006, and 2007.
Frozen Foods filed amended returns on a consolidated basis on March 9, 2010.
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January Term, 2016
Frozen Foods filed federal income-tax returns with its affiliates on a
consolidated basis for tax years 2005, 2006, and 2007.
{¶ 5} RITA, Bedford Heights’ tax administrator, denied the amended
returns and refund claims, and Frozen Foods appealed to the review board, which
issued a decision on November 9, 2011. The decision cites Bedford Heights
Codified Ordinances 173.15(a) and 173.32, as well as section 5:06(A) of RITA’s
rules and regulations,1 and states that these provisions, taken together, are “identical
in effect.” None of them, according to the board of review, “permits a taxpayer to
change the method of accounting or the apportionment of net profits nor the method
of filing after the due date for filing the original return.” (Emphasis deleted.) The
board affirmed the denial of refunds, and the taxpayer appealed to the BTA.
{¶ 6} At the BTA, the parties filed stipulations and briefs. The BTA issued
its decision on March 9, 2015, in response to which Frozen Foods filed a motion
for reconsideration. The BTA issued a second decision on March 20, denying the
motion for reconsideration, vacating the March 9 decision, and substituting the
March 20 decision. In doing so, the March 20 decision corrected a typographical
error in the original opinion. 2
{¶ 7} On the merits, the BTA agreed with Frozen Foods’ assertion that
filing an amended consolidated return did not involve a prohibited change in the
method of accounting or apportionment. BTA No. 2012-55, 2015 Ohio Tax LEXIS
1659, 5 (Mar. 20, 2015). The BTA agreed that the amended returns were improper
and affirmed the board’s denial of the refund claims. Next, the BTA looked at a
rule promulgated by RITA that addressed the filing of refund claims. The language
1
Effective January 1, 1996, Bedford Heights adopted RITA’s rules and regulation for the purpose
of establishing rules for the collection of its city taxes.
2
Frozen Foods filed its appeal within the 30-day appeal period that started with the March 20
decision. The appeal would have been untimely from the standpoint of the March 9 decision.
However, the BTA vacated the first decision, and the March 20 decision replaced the March 9
decision, restarting the appeal period. We denied the city’s motion to dismiss Frozen Foods’ appeal
as untimely. 144 Ohio St.3d 1481, 2016-Ohio-465, 45 N.E.3d 247.
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of the rule strongly paralleled that of the city ordinance, but in 2009 RITA amended
the rule to explicitly prohibit a change to consolidated filing on an amended return.
The BTA held that the 2009 amendment to the RITA rule did apply, observing that
it had no authority to address Frozen Foods’ constitutional objections to applying
the amended rule. Accordingly, the BTA affirmed the review board’s denial of the
refund claim.
Standard of Review
{¶ 8} In reviewing a decision of the BTA, we do not sit as “a super BTA or
a trier of fact de novo.” EOP-BP Tower, L.L.C. v. Cuyahoga Cty. Bd. of Revision,
106 Ohio St.3d 1, 2005-Ohio-3096, 829 N.E.2d 686, ¶ 17, citing Youngstown Sheet
& Tube Co. v. Mahoning Cty. Bd. of Revision, 66 Ohio St.2d 398, 400, 422 N.E.2d
846 (1981). On the other hand, we have held that issues of statutory construction
constitute legal issues that we decide de novo on appeal. 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. Because this appeal calls for us to determine the proper
construction of statutes and ordinances, we review the BTA’s decision without
according it deference.
Analysis
An entity’s amended return changing from separate filing to consolidated filing
constitutes a change in a method of accounting prohibited by the city ordinance
{¶ 9} Usually the issues presented by an appeal would be considered before
those presented by a cross-appeal. We reverse that order here because there is no
need to consider issues raised by Frozen Foods’ appeal if the Bedford Heights
ordinances precluded a claim for a refund based only upon filing a consolidated,
rather than a separate, return.
{¶ 10} The BTA found that Frozen Foods’ change from a separate return to
a consolidated return did not constitute a change in the method of accounting, which
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is barred by the amended-returns provision of Bedford Heights Codified Ordinance
173.15(a). The ordinance allowing consolidated returns reads as follows:
Filing of consolidated returns may be permitted or required
in accordance with rules and regulations prescribed by the Tax
Administrator. Any affiliated group which files a consolidated
return for federal income tax purposes pursuant to section 1501 of
the Internal Revenue Code may file a consolidated return with the
City of Bedford Heights. However, once the affiliated group has
elected to file a consolidated return or a separate return with the
City, the affiliated group may not change their method of filing in
any subsequent tax year without written approval from the
Administrator.
(Italics added to show 2004 amendment.) Bedford Heights Codified Ordinances
173.14.
{¶ 11} The ordinance providing for amended returns and refunds reads as
follows:
Where necessary an amended return must be filed in order
to report additional income and pay additional tax due, or claim a
refund of tax overpaid, subject to the requirements, limitations, or
both, contained in Sections 173.30 through 173.35. Such amended
return shall be on a form obtainable on request from the Tax
Administrator. A taxpayer may not change the method of
accounting or apportionment of net profits after the due date for
filing the original return.
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Bedford Heights Codified Ordinances 173.15(a).
{¶ 12} The RITA rule reads as follows, with language that was added in
2009 italicized:
Where necessary, an amended return must be filed in order
to report additional income and pay additional tax due or claim a
refund of tax overpaid subject to the requirements or limitations
contained in the Ordinance. Such return shall be clearly marked
“Amended.” A taxpayer may not change the method of accounting
or apportionment of net profits, nor the method of filing (i.e., single
or consolidated), after the due date for filing the original return.
Amended returns cannot be filed after three (3) years from the
original filing date.
{¶ 13} In deciding whether an entity’s change from filing a separate return
to filing a consolidated return was prohibited, the BTA noted that Frozen Foods
argued that “a change in the ‘method of accounting’ encompasses only cash versus
accrual accounting.” 2015 Ohio Tax LEXIS 1659, 5. The BTA reasoned that if
changing a separate return to a consolidated return was a prohibited change in the
method of accounting, then RITA would not have had to amend its rule in 2009 to
specifically address the method of filing. On this basis, the BTA held that Frozen
Foods’ amended return did not qualify as a change in the method of accounting. Id.
{¶ 14} We reject the BTA’s conclusion both because of the language of the
city ordinance and because of the meaning of the term “change in method of
accounting” in federal law. First, close inspection of the language of Bedford
Heights Codified Ordinance 173.15(a) supports a restrictive view of the
circumstances that justify amended returns. Amended returns may be filed
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January Term, 2016
“[w]here necessary * * * in order to report additional income and pay additional
tax due, or claim a refund of tax overpaid.”
{¶ 15} Frozen Foods’ amended return does not claim a refund of overpaid
taxes. No one argues that its original separate filing was anything but both legally
proper and factually correct as to the amount of tax owed and duly paid. The
amended return does not claim a deduction or credit that the company forgot to
claim and does not seek a tax benefit that it was entitled to that was omitted on the
separate return.
{¶ 16} Bedford Heights Codified Ordinance 175.15(a) is a remedial
provision that should be construed liberally in favor of furnishing the remedy it was
enacted to provide but should not be construed to create a remedy that was not
intended. See Sheldon Rd. Assocs., L.L.C. v. Cuyahoga Cty. Bd. of Revision, 131
Ohio St.3d 201, 2012-Ohio-581, 963 N.E.2d 794, ¶ 27; Phoenix Amusement Co. v.
Glander, 148 Ohio St. 592, 595-596, 76 N.E.2d 605 (1947). The principle of liberal
construction has been applied to a “provision passed for the purpose of ‘protecting
the citizen from illegal exactions,’ ” Sheldon Rd., ¶ 27, quoting Stephan v. Daniels,
27 Ohio St. 527, 536 (1875).
{¶ 17} As the court noted in Phoenix Amusement:
In approaching the problem of making a correct and
reasonable interpretation of the provision [for applying for a refund],
with respect to the time when the 90-day period starts to run, it
should be borne in mind that the applicant is not trying to evade
taxes or to reduce or minimize a tax assessment legally made, but is
trying to recover tax moneys which never should have been collected
in the first place.
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(Emphasis added.) Id. at 595. Because the original separate return was accurate
and the payment made based on that return was legal, Frozen Foods’ payment does
not involve an “illegal exaction” by the city. And there was no attempt to “recover
tax moneys which never should have been collected in the first place.” Instead, the
amended return takes a broadly different approach to the basic computation of
taxable income. Frozen Foods tries to “reduce or minimize a tax assessment legally
made,” i.e., the assessment made on the original separate return. The new approach
to computing Frozen Foods’ taxable income lies within the intended scope of a
prohibited change in the method of accounting. But the taxpayer itself chose which
method to use in originally reporting its income, and this militates against viewing
the tax paid on that return as an illegal exaction. In summary, the liberal
construction of a refund provision in favor of the taxpayer does not advance Frozen
Foods’ claims.
{¶ 18} Second, contrary to the argument advanced by Frozen Foods at the
BTA, federal treasury regulations do not state that “a change in the ‘method of
accounting’ ” would encompass “only cash versus accrual accounting.” 2015 Ohio
Tax LEXIS 1659, 5. The treasury regulations support a more expansive view of
what constitutes a change in the method of accounting.
{¶ 19} First, we note what is not a “method of accounting” under federal
law. A change in the method of accounting does not include the “correction of
mathematical or posting errors” or of computational errors in determining tax
liability. 26 C.F.R. 1.446-1(e)(2)(ii)(b). Thus, Bedford Heights Codified
Ordinance 173.15(a) appears to target the type of error correction excluded from
the federal definition of “change in method of accounting.”
{¶ 20} Next, we examine the criteria that determine whether a change is a
change in the method of accounting and whether those factors would apply to the
change from filing a separate return to filing a consolidated return. Broadly, a
“change in the method of accounting includes a change in the overall plan of
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January Term, 2016
accounting for gross income or deductions or a change in the treatment of any
material item used in such overall plan.” 26 C.F.R. 1.446-1(e)(2)(ii)(a). More
specifically, that includes “change[s] involving the adoption, use or discontinuance
of any other specialized method of computing taxable income, such as the crop
method” and “change[s] where the Internal Revenue Code and regulations under
the Internal Revenue Code specifically require that the consent of the
Commissioner [of Internal Revenue] must be obtained before adopting such a
change.” Id.
{¶ 21} On the one hand, a change from filing a separate return to filing a
consolidated return systematically affects the computation of taxable income by
aggregating transactions of individual members of the consolidated group. A
consolidated return also eliminates the tax effect of transactions within the affiliate
group that would otherwise affect the taxable income of the members of the group
as an individual taxpaying entity. See 26 C.F.R. 1.1502-11 through 1.1502-28; 26
C.F.R. 1.1502-12(a) (the “separate taxable income” of each member of the group,
which will be aggregated for the entire group under 1.1502-11, must be computed
in accordance with 1.1502-13); 26 C.F.R. 1.1502-13 (providing rules for treating
transactions between companies within the consolidated group as if they were
divisions of the same corporation).
{¶ 22} On the other hand, although statutes and regulations allow the filing
of a consolidated return upon the consent of the members of the group, 26 U.S.C.
1501 and 26 C.F.R. 1.1502-75(a), reverting from filing a consolidated return to
filing a separate return requires good cause and approval of the IRS, 26 C.F.R.
1.1502-75(c). The regulation requires the choice to file a consolidated return be
made by the due date of the return for the common parent of the consolidated group.
Id. at 1.1502-75(a). In other words, an entity that chose initially to file separately
cannot amend its return by filing a consolidated return as part of an affiliated group.
See Internal Revenue Manual, Section 4.11.6.3(1) (May 13, 2005) (“A taxpayer
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SUPREME COURT OF OHIO
filing its first return may adopt any permissible method of accounting,” but “[o]nce
the taxpayer adopts a proper method of accounting by filing its return using such
method, it may not adopt a different method of accounting by the filing of an
amended return”).
{¶ 23} This review of the treasury regulations supports our conclusion that
the change from filing a separate return to filing a consolidated return constitutes a
change in the method of accounting prohibited under the Bedford Heights
ordinance.
{¶ 24} Finally, the BTA held that RITA’s amendment of one of its rules in
2009 to specify that a change in the method of filing was prohibited established that
a “method of accounting” did not encompass the method of filing before the
amendment. We reject this holding because there is no impediment to construing
the 2009 amendment of the RITA rule as a clarification rather than a substantive
change. Accord NLO, Inc. v. Limbach, 66 Ohio St.3d 389, 393, 613 N.E.2d 193
(1993) (statutory change codified prior case-law holding); Williams v. Akron, 54
Ohio St.2d 136, 141, 374 N.E.2d 1378 (1978) (constitutional amendment was
intended only to clarify language); Bailey v. Evatt, 142 Ohio St. 616, 621, 53 N.E.2d
812 (1944) (statutory amendment to exemption served to clarify existing scope
rather than add substantive changes).
R.C. 718.06 does not prohibit cities from limiting refund claims
{¶ 25} It is now necessary to consider Frozen Foods’ contention that state
law preempts a local government’s limitation on refund claims that would preclude
a change from filing a separate return to filing a consolidated return. If that is
correct, then state law preempted Bedford Heights’ prohibition of a change in the
method of accounting in this case. In 2000, the General Assembly amended R.C.
Chapter 718, which imposes limitations on the way cities tax income. Sub.H.B.
No. 477, 148 Ohio Laws, Part II, 5120. The act stated:
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January Term, 2016
On and after January 1, 2003, any municipal corporation that
imposes a tax on the income or net profits of corporations shall
accept for filing a consolidated income tax return from any affiliated
group of corporations subject to the municipal corporation’s tax if
that affiliated group filed for the same tax reporting period a
consolidated return for federal income tax purposes.
Former R.C. 718.06, 148 Ohio Laws, Part II, at 5126.
{¶ 26} Bedford Heights Ordinance 173.14(a) was amended effective
December 21, 2004. While the original language had permitted consolidated
returns in accordance with city regulations, new language was added stating that an
affiliated group “may not change their method of filing in any subsequent tax year
without written approval from the Administrator.”
{¶ 27} Thus, both ordinance and state law expressly permitted filing
consolidated returns in tax years 2005, 2006, and 2007. But during that entire
period, city law also barred the filing of a refund claim based on a change in the
method of accounting or a change in the method of apportionment. Thus, if the
change from filing a single return to filing a consolidated return constituted a
change in an accounting or apportionment method, the change was barred when
filing amended returns.
{¶ 28} We reject Frozen Foods’ preemption argument. The plain language
of the state law does not override the city’s power to bar a change of accounting or
apportionment method when filing an amended return. The lack of an explicit
limitation is fatal to this argument.
{¶ 29} Bedford Heights’ taxing authority is one of the “powers of local self-
government,” Ohio Constitution, Article XVIII, Section 3, enjoyed by Ohio’s
chartered subdivisions, but it is subject to state control under two provisions of the
Ohio Constitution: Article XVIII, Section 13, providing that “[l]aws may be passed
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to limit the power of municipalities to levy taxes and incur debts,” and Article XIII,
Section 6, providing that the General Assembly “shall provide for the organization
of cities, and incorporated villages, by general laws, and restrict their power of
taxation.” Although R.C. Chapter 718 purports to broadly define what local
income-tax laws must look like, we have held that the General Assembly’s exercise
of authority with respect to municipal taxation strictly involves imposing limits on
the power to tax; state law may not be construed as imposing local taxes by
overriding an exempting provision of local law. Gesler v. Worthington Income Tax
Bd. of Appeals, 138 Ohio St.3d 76, 2013-Ohio-4986, 3 N.E.3d 1177, ¶ 21-22. In
addition, the preclusive power of state law is confined to those limitations that are
expressly stated in the state legislation—there is no implied preemption of local tax
law. Cincinnati Bell Tel. Co. v. Cincinnati, 81 Ohio St.3d 599, 605, 693 N.E.2d
212 (1998) (“it is evident that a proper exercise of this limiting power requires an
express act of restriction by the General Assembly”); compare Panther II Transp.,
Inc. v. Seville Bd. of Income Tax Rev., 138 Ohio St.3d 495, 2014-Ohio-1011, 8
N.E.3d 904 (broad preemptive statute barred imposition of local net-profits tax
because state law explicitly protected the category of taxpayer from local taxes,
even though the state law did not specifically mention the type of local tax at issue).
{¶ 30} Under this case law, if former R.C. 718.06 was an exercise of the
General Assembly’s statutory power, the statute must have limited local power to
impose tax and the limitation must have been explicitly stated. Former R.C. 718.06
did limit local taxing authority by requiring the city to “accept for filing a
consolidated income tax return.” Under Bedford Heights’ ordinance, Frozen Foods
could have filed, and Bedford Heights was required to accept, a consolidated return
for each tax year at issue, but for the original filings it received not a consolidated
but a separate return. Once the original return was filed, the mandate of R.C. 718.06
expired; the statute did not purport to address whether a the taxpayer could change
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to a consolidated method by filing an amended return, an issue that involved policy
decisions at the local level that the General Assembly did not address.
{¶ 31} Changing from filing a separate return to a consolidated return did
not correct any tax-accounting error in the original return. The amount of tax
reported and paid on the original return was perfectly permissible and legal under
state as well as local law, given that the taxpayer originally exercised the right to
file a separate return rather than a consolidated return. To prohibit the city from
refusing the amended return would constitute an additional limit on the city’s
taxing authority that was not explicitly stated in R.C. 718.06. We have rejected
this type of implied limitation in the past.
{¶ 32} The city had another strong policy reason to limit refund claims. The
city’s fiscal stability depended upon the finality of the filing election, as the present
case demonstrates. We emphasize the distinction between the correction of errors
or omissions on an original return and the election of a substantially different
method of reporting and computing income: by ordinance, the city was liable to
grant relief in the former instance, but the refund ordinance foreclosed the city’s
liability in the latter.
Frozen Foods’ constitutional arguments need not be addressed
{¶ 33} The BTA predicated its denial of Frozen Foods’ refund claim on a
2009 amendment to RITA’s rules that explicitly prohibited a change from a
separate return to a consolidated return when filing an amended return. The
taxpayer has raised constitutional challenges to this ruling, including a claim of
unconstitutional retroactivity and improper delegation of authority. Because we
resolve this case on the basis of Bedford Heights’ limitation prohibiting a change
in the method of account, we need not consider the theory on which the BTA based
its disposition of the case.
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Conclusion
{¶ 34} For the foregoing reasons, we hold that the city ordinance barred a
change from a separate return to a consolidated return when filing an amended
return, because the change constituted a change in the method of accounting
prohibited by the ordinance. We vacate the remainder of the BTA’s decision and
do not reach any of the other issues presented. Finally, we affirm the decision to
deny Frozen Foods’ claim for a refund.
Decision affirmed.
O’CONNOR, C.J., and PFEIFER, and O’NEILL, JJ., concur.
O’DONNELL, J., dissents, with an opinion joined by KENNEDY and FRENCH,
JJ.
_________________
O’DONNELL, J., dissenting.
{¶ 35} Respectfully, I dissent.
{¶ 36} On March 9, 2015, the Board of Tax Appeals (“BTA”) affirmed the
decision of the Bedford Heights Income Tax Board of Review denying the
administrative appeal brought by New York Frozen Foods, Inc., in which it sought
to amend its net profits tax returns for 2005, 2006, and 2007.
{¶ 37} Pursuant to R.C. 5717.03(F), this decision is “final and conclusive
* * * unless reversed, vacated, or modified as provided in section 5717.04 of the
Revised Code.” R.C. 5717.04, in turn, provides that “[t]he proceeding to obtain a
reversal, vacation, or modification of a decision of the board of tax appeals shall be
by appeal to the supreme court or the court of appeals for the county in which the
property taxed is situate or in which the taxpayer resides.” This statute further
provides, “Such appeals shall be taken within thirty days after the date of the entry
of the decision of the board on the journal of its proceedings, as provided by such
section, by the filing by appellant of a notice of appeal with the court to which the
appeal is taken and the board.”
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{¶ 38} In this case, the record shows that rather than file a timely notice of
appeal with this court or the court of appeals, New York Frozen Foods moved for
reconsideration of the BTA’s decision on March 18, 2015. In response to that
motion, the BTA not only denied reconsideration on March 20, 2015, but also
purported to vacate its decision to correct a typographical error, and it then
republished the same opinion verbatim, adding only a statement denying
reconsideration and vacating its prior order and correcting the typographical error
to change the word “disagree” to “agree.” New York Frozen Foods filed its notice
of appeal in this court on April 10, 2015—32 days after the BTA’s March 9 decision
but only 21 days after the republished March 20 BTA decision.
{¶ 39} New York Frozen Foods filed an untimely appeal. Neither R.C.
5717.03 nor 5717.04 provides authority for the BTA to vacate its own final decision
on reconsideration; rather, those statutes establish that a decision of the BTA is final
unless it is appealed to this court or the court of appeals. Our caselaw, however,
suggests that the BTA has inherent authority to reconsider and vacate its own
decisions. See, e.g., Natl. Tube Co. v. Ayres, 152 Ohio St. 255, 262, 89 N.E.2d 129
(1949); 1495 Jaeger, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 132 Ohio St.3d 222,
2012-Ohio-2680, 970 N.E.2d 949, ¶ 15. But this line of cases is inconsistent with
the statutory requirement that “[t]he proceeding to obtain a reversal, vacation, or
modification of a decision of the board of tax appeals shall be by appeal * * *.”
(Emphasis added.) R.C. 5717.04. Because the BTA is a creature of statute, it is
necessarily limited to the powers conferred by the legislature, Delaney v. Testa, 128
Ohio St.3d 248, 2011-Ohio-550, 943 N.E.2d 546, ¶ 20, and therefore, it has no
statutory authority to vacate its own final order as a substitute for an appeal.
{¶ 40} Nor can a tribunal vacate and reissue a final order to extend the time
for a party to commence an appeal. See State v. Dowdy, 8th Dist. Cuyahoga No.
96642, 2012-Ohio-2382, ¶ 8 (“As a general matter, a trial court does not have the
power to reenter a judgment in order to circumvent the App.R. 4(A) limitation
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period for the filing of an appeal”); State v. Bernard, 2d Dist. Montgomery No.
18058, 2000 WL 679008, *2 (May 26, 2000) (“the trial court lacked authority to
vacate and reinstate its judgment in order to facilitate Bernard's appeal”); Kertes
Ents., Inc. v. Orange Village Planning Zoning Comm., 68 Ohio App.3d 48, 49, 587
N.E.2d 409 (8th Dist.1990) (“the court may not re-enter judgment to circumvent
the App.R. 4(A) limitation period”). The BTA’s decision to vacate its original
decision and then republish it adding only a statement denying reconsideration and
vacating the original order to correct a clerical error contemplated extending the
time for perfecting an appeal.
{¶ 41} However, the BTA decision denying reconsideration and correcting
the clerical error is not itself a final appealable order. In Southside Community Dev.
Corp. v. Levin, 116 Ohio St.3d 1209, 2007-Ohio-6665, 878 N.E.2d 1048, ¶ 5, we
explained that in determining whether a BTA decision is a final appealable order,
“R.C. 2505.02(B)(2) applies, and that provision deems to be ‘final’ an ‘order that
affects a substantial right made in a special proceeding.’ ”
{¶ 42} Here, the BTA issued a final order on March 9, 2015, and the March
20, 2015 order appealed from in this case did not affect any substantial rights.
Denial of reconsideration left the parties in the same position that they were in
before the denial, and notably, the BTA’s procedural rules clarify that “a motion
for reconsideration shall not enlarge the period of time upon which an appeal may
be taken from this board nor shall the filing of such motion suspend or toll the
statutory appeal period,” Ohio Adm.Code 5717-1-12(D).
{¶ 43} In reality, republishing the prior decision to correct the clerical error
is in substance a nunc pro tunc entry. Although “administrative tribunals possess
inherent authority to correct errors in judgment entries so that the record speaks the
truth[,] * * * nunc pro tunc entries are limited in proper use to reflecting what the
court actually decided.” State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 164, 656
N.E.2d 1288 (1995). And as we noted in State v. Thompson, 141 Ohio St.3d 254,
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January Term, 2016
2014-Ohio-4751, 23 N.E.3d 1096, ¶ 43, “a nunc pro tunc entry does not replace the
original judgment entry; it relates back to the original entry.”
{¶ 44} Thus, a nunc pro tunc entry does not affect substantive rights, and it
is not a new final order for purposes of appeal. Perfection Stove Co. v. Scherer,
120 Ohio St. 445, 448-449, 166 N.E. 376 (1929) (nunc pro tunc entry that “did not
operate to deprive the defendants in error of any rights which the previous order
had accorded them, nor make that order any less final, was not effective to postpone
the date when the period within which an appeal is authorized to be prosecuted
begins to run”); State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d
142, syllabus (“A nunc pro tunc judgment entry issued for the sole purpose of
complying with Crim.R. 32(C) to correct a clerical omission in a final judgment
entry is not a new final order from which a new appeal may be taken”); Gold Touch,
Inc. v. TJS Lab, Inc., 130 Ohio App.3d 106, 109, 719 N.E.2d 629 (8th Dist.1998)
(“the use of the nunc pro tunc order in this case did not act to extend the normal
thirty-day filing period for an appeal since no substantive changes were made to the
final order”).
{¶ 45} Accordingly, the BTA entered the only final appealable order in this
case on March 9, 2015, and its republished March 20, 2015 entry denying
reconsideration, correcting a clerical error, and purporting to vacate the March 9
entry did not restart the time period for perfecting an appeal. Therefore, New York
Frozen Food’s notice of appeal filed on April 10, 2015, is untimely and this matter
should be dismissed.
KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
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Zaino, Hall & Farrin, L.L.C., Stephen K. Hall, and Richard C. Farrin, for
appellants and cross-appellees.
Calfee, Halter & Griswold, L.L.P., Anthony F. Stringer, Matthew A.
Chiricosta, and Thomas R. O’Donnell, for appellees and cross-appellants.
17
SUPREME COURT OF OHIO
Amy L. Arrighi, in support of appellees and cross-appellants for amicus
curiae, Regional Income Tax Agency.
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