General Electric Co. v. DeCourcy

Holmes, J.,

dissenting. Even though I joined the majority in Lewis v. Benson (1979), 60 Ohio St. 2d 66 , denying interest on an award for back pay where there was no statutory provision for such, I must respectfully dissent from the opinion of the majority herein because of the' factual circumstances of this case.

I am aware that the General Assembly has specifically provided for the payment of interest upon overpayment of the corporate franchise tax, the sales tax, and the use tax, while failing to accordingly amend R. C. 5715.22 relative to the reimbursement of interest on overpayments of real estate tax. In this regard I must state that I seriously question the rational basis for such differing treatment of these tax *72 payers. However, I do not base my position upon any claim of unconstitutionality of this law. More pointedly, I premise my stance upon what I believe to be unjust enrichment of the taxing authority.

The facts presented within this case show that there is no disagreement that these tax monies were invested for a period of time before the refunding of the overpayments, and the interest obtained by the county from the use of this overpayment was $50,958.87.

Ohio counties, as well as the state of Ohio, operate as do private business entities in regularly investing idle funds at favorable interest rates whenever possible. Therefore, counties could reasonably repay to the taxpayer any such interest gained on the funds of the taxpayer unlawfully collected.

The fact that there is no statute allowing any such payment of interest on overpayments of real estate taxes is no real indication that the General Assembly would disfavor such, in instances such as this where proof is submitted as to the earnings gained by the county upon such overpayment. In my view the county in such instances has been unjustly enriched and should compensate the taxpayer to the amount of such unjust enrichment.

Based upon this reasoning, I would reverse.