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

> Ohio Supreme Court · December 21, 2017 · 152 Ohio St. 3d 405

URL: https://www.frixlaw.com/law-library/cases/4231025

## Case

- **Full name:** NASCAR HOLDINGS, INC., Appellant, v. TESTA, Tax Commr., Appellee.
- **Court:** Ohio Supreme Court
- **Decided:** December 21, 2017
- **Citations:** 152 Ohio St. 3d 405; 97 N.E.3d 414; 2017 Ohio 9118
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Fischer
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4231025

## How later opinions describe it (automated extraction)

- observing the "central point[] that Nos. 21AP-211 et seq 9 R.C. 5717.02 places no limits on the corporate taxpayer's authority to designate an agent to sign the notice of appeal"

## Opinion text

[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.
____________
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,

1
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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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

2
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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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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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4231025. Public record. Not legal advice.