NASCAR Holdings, Inc. v. Testa (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

NASCAR Holdings, Inc. v. Testa, Slip Opinion No. 2017-Ohio-9118.]

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. 2017-OHIO-9118

NASCAR HOLDINGS, INC., APPELLANT, v. TESTA, TAX COMMR., APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as NASCAR Holdings, Inc. v. Testa, Slip Opinion No.

2017-Ohio-9118.]

Board of Tax Appeals—Jurisdiction—Notice of appeal filed by attorney not

licensed in Ohio—BTA not deprived of jurisdiction solely because notice of

appeal was filed by nonattorney—Lack of authority to practice law is

irrelevant to question whether jurisdiction was properly invoked―Any

authorized agent may invoke jurisdiction of BTA by filing appeal on

taxpayer’s behalf, even if by doing so, agent engages in unauthorized

practice of law.

(No. 2015-1157―Submitted August 22, 2017―Decided December 21, 2017.)

APPEAL from the Board of Tax Appeals, No. 2015-263.

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SUPREME COURT OF OHIO

Per Curiam.

I. SUMMARY

{¶ 1} Appellant, NASCAR Holdings, Inc. (“NASCAR”), challenges the

decision of the Board of Tax Appeals (“BTA”) dismissing NASCAR’s notice of

appeal solely because it was filed by an attorney who was not licensed to practice

law in Ohio. For the reasons that follow, we reverse the BTA’s decision and

remand for further proceedings.

II. FACTS AND PROCEDURAL BACKGROUND

{¶ 2} The Department of Taxation conducted an audit and found that

NASCAR had failed to file commercial-activity tax (“CAT”) returns and to pay the

CAT for more than five years, from July 1, 2005, to December 31, 2010. The

department issued an assessment against NASCAR for $549,520.

{¶ 3} NASCAR filed a petition for reassessment with appellee, the tax

commissioner. On January 5, 2015, the commissioner issued his final

determination, rejecting NASCAR’s arguments and affirming the assessment.

{¶ 4} NASCAR then filed a notice of appeal to the Board of Tax Appeals,

challenging the tax commissioner’s final determination. The notice of appeal was

signed by “Michael J. Bowen, POA.” Bowen is a Florida-based attorney who is

not licensed to practice law in Ohio.

{¶ 5} On May 8, 2015, the tax commissioner filed a motion to dismiss. The

commissioner argued that because Bowen had engaged in the unauthorized practice

of law when he filed the notice of appeal on NASCAR’s behalf, the BTA lacked

jurisdiction over the appeal.

{¶ 6} NASCAR conceded that Bowen was neither admitted to the Ohio bar

nor registered for pro hac vice status when he filed the notice of appeal.1 NASCAR,

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On May 28, 2015, Bowen filed a motion with the BTA in this case for pro hac vice status. The

BTA never ruled on Bowen’s motion. NASCAR states that the BTA “ignor[ed]” the motion for pro

hac vice, but does not claim error with respect to the BTA’s failure to rule.

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however, asserted that Bowen’s lack of authority to practice law in Ohio was

irrelevant to whether his filing of the notice of appeal properly invoked the BTA’s

jurisdiction.

{¶ 7} On June 15, 2015, the BTA granted the motion and dismissed the

appeal. The BTA found that Bowen had engaged in the unauthorized practice of

law when he prepared and filed the notice of appeal with the BTA on NASCAR’s

behalf. The BTA further held that this rendered the notice of appeal void ab initio,

thereby depriving the board of jurisdiction over NASCAR’s appeal. NASCAR

appealed to this court.

III. DISCUSSION

A. Standard of Review

{¶ 8} In reviewing a decision of the BTA, this court determines whether the

decision is “reasonable and lawful.” R.C. 5717.04; Satullo v. Wilkins, 111 Ohio

St.3d 399, 2006-Ohio-5856, 856 N.E.2d 954, ¶ 14. Although the BTA is

responsible for determining factual issues, we “ ‘will not hesitate to reverse a BTA

decision that is based on an incorrect legal conclusion.’ ” Id., quoting Gahanna-

Jefferson Local School Dist. Bd. of Edn. v. Zaino, 93 Ohio St.3d 231, 232, 754

N.E.2d 789 (2001).

B. Whether the filing of the notice of appeal by an attorney not licensed to

practice law in Ohio deprives the BTA of jurisdiction

{¶ 9} NASCAR argues that the BTA erred when it held that it lacked

jurisdiction over the appeal solely because Bowen was not authorized to practice

law in Ohio when he filed NASCAR’s notice of appeal. NASCAR states that under

R.C. 5717.02(A), appeals from a final determination by the tax commissioner “may

be taken to the board of tax appeals by the taxpayer.” NASCAR argues that under

Jemo Assoc., Inc. v. Lindley, 64 Ohio St.2d 365, 415 N.E.2d 292 (1980), any

authorized agent may file an appeal to the BTA on the taxpayer’s behalf, even if by

doing so, the agent engages in the unauthorized practice of law. Since Bowen was

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NASCAR’s authorized agent, NASCAR maintains that the BTA’s jurisdiction was

properly invoked and the case should be remanded for a decision on the merits.

1. Background on Jemo

{¶ 10} In Jemo, a corporate accountant signed a notice of appeal to the BTA

from a final determination of the tax commissioner. The BTA had promulgated an

administrative rule that required that a notice of appeal filed on behalf of a

corporation be signed by either a corporate officer or an attorney. The BTA

dismissed the appeal because Jemo’s accountant was not a corporate officer or an

attorney, as required by the rule. Jemo at 365-366.

{¶ 11} This court reversed in a plurality per curiam opinion. The plurality

first noted that R.C. 5717.02 provides that such appeals “may be taken to the board

of tax appeals by the taxpayer.” Jemo at 366. The plurality then found that because

R.C. 5717.02 articulates no further restrictions, the BTA’s rule unlawfully limited

who could act on behalf of the taxpayer under the statute. According to the

plurality, “[t]here is * * * no merit to an interpretation of R.C. 5717.02 which, for

jurisdictional purposes, conclusively presumes that a corporate officer or an

attorney is always competent to sign a corporation’s notice of appeal but that any

other corporate agent is never competent.” Jemo at 368. Rather, “under agency

law, the authority of any purported agent to act on behalf of a principal is ordinarily

a question of fact.” Id. at 367. Thus, under Jemo, whether the notice of appeal

properly invoked the BTA’s jurisdiction turns on whether the person filing it was

authorized by the taxpayer to file it. See also Toledo Pub. Schools Bd. of Edn. v.

Lucas Cty. Bd. of Revision, 124 Ohio St.3d 490, 2010-Ohio-253, 924 N.E.2d 345,

¶ 23-24 (construing Jemo).

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January Term, 2017

2. The BTA erred in not applying Jemo

{¶ 12} NASCAR relies primarily on Jemo as grounds for reversing the

order of the BTA.2 In the proceedings below, the BTA noted its long-standing

practice of relying on Jemo in accepting jurisdiction over appeals when corporate

officers and other nonattorney agents have prepared and filed the notice of appeal

on behalf of a corporate taxpayer. BTA No. 2015-263 at 2, citing cases. The BTA,

however, found that this case is distinguishable because unlike in Jemo, the board

was “faced not with a corporate officer or accountant, but an attorney licensed to

practice in another state who failed to abide by the Supreme Court Rules for the

Government of the Bar of Ohio by seeking admission to practice in Ohio prior to

filing the instant appeal.” BTA No. 2015-263 at 2. We find that the BTA erred in

distinguishing Jemo.

{¶ 13} The BTA distinguished this case from Jemo because, in its opinion,

“a non-Ohio attorney engaged in the unauthorized practice of law by preparing and

filing a notice of appeal with this board.” BTA No. 2015-263 at 2. The BTA

ignores Jemo’s conclusion that R.C. 5717.02 does not require that the corporation’s

agent be an attorney for purposes of invoking the BTA’s jurisdiction. The tax

commissioner raised the attorney issue in Jemo, arguing that R.C. 4705.01 bars

nonlawyers from commencing legal proceedings on behalf of others. But Jemo

rejected this argument, stating: “R.C. 4705.01 is irrelevant to the jurisdictional issue

before [the court] since it has no bearing upon whether any particular attorney has

the authority to represent any particular corporate taxpayer.” Jemo, 64 Ohio St.2d

at 368, 415 N.E.2d 292, fn. 4. In Toledo Pub. Schools Bd. of Edn., 124 Ohio St.3d

490, 2010-Ohio-253, 924 N.E.2d 345, ¶ 23, fn. 4, we explained that footnote four

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NASCAR’s only other argument claims that the BTA improperly enforced Ohio Adm.Code 5717-

1-02, which requires that attorneys appearing before the BTA be licensed in Ohio or admitted pro

hac vice. Because we find in favor of NASCAR, we do not need to address this argument.

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of Jemo “illustrates the court’s narrow focus on the question of an accountant’s

actual authority as an agent.”

{¶ 14} Because nonattorney corporate agents filed the appeals in both this

case and Jemo, the BTA was wrong to distinguish this case from Jemo. Although

the Jemo plurality did not address the question, it is clear that the nonlawyer

corporate accountant in Jemo was also not licensed to practice law in Ohio when

he filed the notice of appeal to the BTA. See R.C. 4705.01 (only a licensed attorney

can commence an action or proceeding on behalf of another person); and Land Title

Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 28, 193 N.E. 650 (1934) (the

practice of law includes the preparation of legal documents by which legal rights

are preserved); Cleveland Bar Assn. v. Misch, 82 Ohio St.3d 256, 259-261, 695

N.E.2d 244 (1998) (filing a notice of appeal to the BTA on behalf of another

constitutes the practice of law). But that issue is separate from the issue of

jurisdiction. Under Jemo, the corporate agent’s status as a non-Ohio attorney does

not alter the BTA’s jurisdiction.

{¶ 15} As to the BTA’s determination that Bowen’s status as a non-Ohio

attorney rendered the notice of appeal void, this runs counter to Jemo’s central

point: that R.C. 5717.02 places no limits on the corporate taxpayer’s authority to

designate an agent to sign the notice of appeal. Under Jemo, who may properly act

as the taxpayer’s agent is a question of fact that hinges on whether the person filing

the notice of appeal was authorized by the taxpayer to file it. Jemo, 64 Ohio St.2d

at 367-368, 415 N.E.2d 292. See also Toledo Pub. Schools Bd. of Edn., 124 Ohio

St.3d 490, 2010-Ohio-253, 924 N.E.2d 345, ¶ 23-24.

{¶ 16} In this case, there appears to be no dispute that NASCAR authorized

Bowen to file the notice of appeal to the BTA. So under R.C. 5717.02 and Jemo,

the notice of appeal filed by Bowen properly invoked the BTA’s jurisdiction.

Therefore, the BTA erred in dismissing NASCAR’s appeal for lack of jurisdiction.

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January Term, 2017

3. The tax commissioner’s remaining arguments are unpersuasive

{¶ 17} The tax commissioner cites Ohio State Bar Assn. v. Ryan, 138 Ohio

St.3d 67, 2013-Ohio-5500, 3 N.E.3d 194, and Misch, 82 Ohio St.3d 256, 695

N.E.2d 244, for the proposition that preparing and filing a notice of appeal to the

BTA constitutes the unauthorized practice of law. But the dispositive question here

is whether Bowen’s actions deprived the BTA of jurisdiction over NASCAR’s

appeal. On that question, Ryan and Misch are silent.

{¶ 18} The tax commissioner also argues that Jemo, a plurality opinion, is

not binding authority. That is true. Hedrick v. Motorists Mut. Ins. Co., 22 Ohio

St.3d 42, 44, 488 N.E.2d 840 (1986), overruled on other grounds, Martin v.

Midwestern Group Ins. Co., 70 Ohio St.3d 478, 639 N.E.2d 438 (1994). But when

a court or administrative agency finds a plurality opinion to be persuasive, it is not

barred from relying on that opinion. We are persuaded by Jemo.

IV. CONCLUSION

{¶ 19} We find that NASCAR has demonstrated reversible error. The BTA

erred in not applying Jemo. Accordingly, we reverse the BTA’s decision

dismissing NASCAR’s appeal and remand the cause to the BTA for consideration

on the merits.

Decision reversed

and cause remanded.

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, and

DEWINE, JJ., concur.

FISCHER, J., dissents, with an opinion.

_________________

FISCHER, J., dissenting.

{¶ 20} I respectfully dissent. Jemo Assoc., Inc. v. Lindley, 64 Ohio St.2d

365, 415 N.E.2d 292 (1980), does not stand for the proposition that the Board of

Tax Appeals (“BTA”) has jurisdiction to hear an appeal when someone not

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authorized to practice law in Ohio has filed the appeal on behalf of a corporation

and engaged in the unauthorized practice of law by doing so. Even if the lead

opinion in Jemo did stand for that proposition, it has been superseded by our

subsequent case law. Thus, the BTA correctly dismissed the appeal of NASCAR

Holdings, Inc., on the grounds that the appeal was filed by an attorney not licensed

in Ohio and, therefore, did not invoke the BTA’s jurisdiction.

{¶ 21} In Jemo, three justices signed on to the plurality opinion and a fourth

justice concurred in judgment only. Thus, as the majority acknowledges, Jemo is

not binding authority. Ohio courts have cited Jemo most often for the proposition

that cases generally should not be dismissed for violating a procedural rule. See

Friendly’s v. Franklin Cty. Bd. of Revision, 10th Dist. Franklin No. 94APH03-347

to 94APH03-349, 1994 WL 521217 (Sept. 20, 1994); Grenga v. Bank One, N.A.,

7th Dist. Mahoning No. 04 MA 94, 2005-Ohio-4474; and In re Terrance P., 124

Ohio App.3d 487, 706 N.E.2d 801 (6th Dist.1997).

{¶ 22} No court has cited Jemo for the proposition that any authorized agent

can file an appeal to the BTA on the taxpayer’s behalf, even if the agent is engaged

in the unauthorized practice of law. See Toledo Pub. Schools Bd. of Edn. v. Lucas

Cty. Bd. of Revision, 124 Ohio St.3d 490, 2010-Ohio-253, 924 N.E.2d 345; Sharon

Village Ltd. v. Licking Cty. Bd. of Revision, 78 Ohio St.3d 479, 678 N.E.2d 932

(1997); State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections,

80 Ohio St.3d 302, 686 N.E.2d 238 (1997); Doyle v. Ohio Bur. of Motor Vehicles,

51 Ohio St.3d 46, 554 N.E.2d 97 (1990); and Universal Equip. Co. v. Limbach, 6th

Dist. Sandusky No. S-88-20, 1989 WL 20256 (Mar. 10, 1989).

{¶ 23} Since Jemo, this court has addressed the unauthorized practice of law

several times in the state-tax area, primarily in the context of valuation complaints.

In Sharon Village, this court held that nonattorneys were barred from filing

valuation complaints on behalf of corporate taxpayers. The court’s decision in

Sharon Village rested on the application of three statutes: R.C. 5715.19(A),

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January Term, 2017

5715.13, and 4705.01. R.C. 5715.19(A), at the time, provided that a property owner

could file a valuation complaint in the county in which the land was located. 1988

Am.Sub.H.B. No. 603, 142 Ohio Laws, Part III, 4583, 4589. R.C. 5715.13

provided that either the owner itself or an “agent” could perform the filing. 1953

Am.H.B. No. 1. And R.C. 4705.01 prohibited the practice of law by a nonattorney,

as it does today. Am.Sub.S.B. No. 219, 140 Ohio Laws, Part I, 662, 680–681.

{¶ 24} Based on the interplay among R.C. 4705.01, 5715.13, and 5715.19,

the court concluded that a nonattorney engages in the unauthorized practice of law

when he or she files a valuation complaint on behalf of a corporation. Sharon

Village, 78 Ohio St.3d at 483, 678 N.E.2d 932. And because the statutes themselves

did not authorize a nonattorney to file on behalf of a corporation, the court affirmed

the BTA’s decision, which dismissed the appeal on the basis that a valuation

complaint filed by a nonattorney fails to invoke the jurisdiction of the board of

revision. See also Columbus City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of

Revision, 134 Ohio St.3d 529, 2012-Ohio-5680, 983 N.E.2d 1285, ¶ 13-14

(explaining the reasoning underlying Sharon Village); State ex rel. Cooker

Restaurant, 80 Ohio St.3d at 306-307, 686 N.E.2d 238 (rejecting Jemo as

controlling and finding that the board of elections properly dismissed election

protest under Sharon Village).

{¶ 25} In response to Sharon Village, the General Assembly amended R.C.

5715.19(A) in 1999 to allow certain persons to file valuation complaints on behalf

of a taxpayer, without regard to whether those persons are attorneys. 147 Ohio

Laws, Part III, 5373, 5373-5374. This court has upheld the R.C. 5715.19(A)(1)

amendments. See, e.g., Marysville Exempted Village Local School Dist. Bd. of Edn.

v. Union Cty. Bd. of Revision, 136 Ohio St.3d 146, 2013-Ohio-3077, 991 N.E.2d

1134, ¶ 21-34.

{¶ 26} Although this court has recognized certain statutory exceptions to

the prohibition against the practice of law by nonattorneys, Sharon Village has not

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been overruled and remains good law when no such exceptions apply. Indeed, a

decade after the statutory amendments that abrogated Sharon Village in part, this

court delivered a unanimous per curiam opinion in Toledo. Toledo, 124 Ohio St.3d

490, 2010-Ohio-253, 924 N.E.2d 345. In Toledo, the court noted that Sharon

Village and its progeny are controlling when issues of jurisdiction and unauthorized

practice of law coexist in a given case. Id. at ¶ 22. Compare Richman Properties,

L.L.C. v. Medina Cty. Bd. of Revision, 139 Ohio St.3d 549, 2014-Ohio-2439, 13

N.E.3d 1126, ¶ 20-27 (examining unauthorized-practice-of-law issues at the BTA

through prism of Sharon Village and its progeny); Cincinnati School Dist. Bd. of

Edn. v. Hamilton Cty. Bd. of Revision, 127 Ohio St.3d 63, 2010-Ohio-4907, 936

N.E.2d 489, ¶ 13-17 (same).

{¶ 27} Moreover, Ohio courts have found that when a filing constitutes the

unauthorized practice of law, the court is deprived of jurisdiction to rule on that

filing. See, e.g., State ex rel. Hadley v. Pike, 7th Dist. Columbiana No. 14 CO 14,

2014-Ohio-3310 (civil complaint filed by an attorney not licensed to practice in

Ohio should have been dismissed for lack of subject-matter jurisdiction); Norwalk

MK, Inc. v. McCormick, 6th Dist. Huron No. H-04-041, 2005-Ohio-2493

(municipal court lacks jurisdiction to hear claims filed by nonattorney officer of

corporation); Bur. of Support v. Brown, 7th Dist. Carroll No. 00APO742, 2001 WL

1497073 (Nov. 6, 2001) (trial court improperly exercised jurisdiction when it

granted motion filed by a nonattorney). But see Cleveland Bar Assn. v. Pearlman,

106 Ohio St.3d 136, 2005-Ohio-4107, 832 N.E.2d 1193 (nonattorney corporate

officers may file claims on behalf of corporation in small-claims court).

{¶ 28} Giving due consideration to the above, I would hold that barring a

statutory exception, when an appeal to the BTA is filed by a nonattorney, the

nonattorney has engaged in the unauthorized practice of law and the BTA does not,

therefore, have jurisdiction to hear the appeal. The nonbinding plurality opinion in

Jemo does not conclude otherwise, and even if it could be read to do so, in light of

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Sharon Village, it has been superseded. For these reasons, it was neither

unreasonable nor unlawful for the BTA to follow Sharon Village and its progeny

and to not follow Jemo. Indeed, doing so gave effect to the guidance provided by

this court in Toledo.

{¶ 29} I would affirm the BTA’s decision and, therefore, I respectfully

dissent.

_________________

Frost Brown Todd, L.L.C., Matthew C. Blickensderfer, Jeremy A. Hayden,

and Mark F. Sommer, for appellant.

Michael DeWine, Attorney General, and Daniel W. Fausey and Raina

Nahra Boulos, Assistant Attorneys General, for appellee.

_________________

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