The opinion
Celebrezze, C.J.,
dissenting. The commissioner’s discretion in remitting a penalty under R.C. 5739.13 should be restricted to the question of whether the penalty, in its entirety, will be refunded to the taxpayer. The majority would allow the commissioner discretion to impose a penalty, digital or fractional, between zero and fifteen percent. The majority’s position is supported neither by the statutes nor the relevant cases.
R.C. 5739.13 states in pertinent part:
“A penalty of fifteen per cent shall be added to the amount of every assessment made under this section. The commissioner may adopt and promulgate rules and regulations providing-for the remission of penalties added to assessments made under this section.” (Emphasis added.)
Supposedly on the authority of R.C. 5739.13, the commissioner has announced the following rule:
“In the event a tax assessment to which a fifteen percent penalty has been added under the provisions of the Ohio Sales Tax * * * is paid in its entirety, including penalty, within thirty days after the date on which the notice of assessment is served on the person assessed, the Tax Commissioner may remit such part of the penalty as he may deem proper.” Ohio Adm. Code 5703-9-05.
Thus, Ohio Adm. Code 5703-9-05 allows the commissioner, in effect, to reduce the amount of the penalty set forth in R.C. 5739.13. This court has recognized on several occasions that the penalty is mandatory. In Plowden & Roberts, Inc. v. Porterfield (1970), 21 Ohio St. 2d 276, 281 [ 50 O.O.2d 497 ], this court stated:
“It is apparent that Section 5739.13, Revised Code, in conjunction -with Section 5741.14, Revised Code, indicates that the imposition of a 15 percent penalty, added to the amount of every use tax assessment made, is- mandatory.” Accord Servomation Corp. v. Kosydar (1976), 46 Ohio St. 2d 67, 71 [ 75 O.O.2d 147 ].
Moreover, this court’s previous cases indicate that the commissioner only has discretion to remit or refund to the taxpayer the entire penalty and not *72 merely a part thereof. For instance, in Plowden, supra, we reiterated at 281-282:
“ ‘The statutory power to adopt rules and regulations for the remission of penalties creates a discretionary power in the Tax Commissioner. Thus, the remission of the penalty * * * differs from the ordinary assessment of taxes in that the remission of the penalty, unlike the assessment of a tax, is in the first instance left to the discretion of the Tax Commissioner.’ ” (Emphasis added.)
In Servomation Corp. v. Kosydar, supra, we stated at 71:
“Although R.C. 5739.13 makes the imposition of a penalty mandatory, it gives the commissioner sole discretion to determine whether a penalty shall be remitted. * * * [Conferring of such discretion upon the commissioner by R.C. 5739.13 is valid and constitutional.”
I have no disagreement with allowing the commissioner to have the discretion to remit to the taxpayer, in the proper case, the full amount of the penalty added to the assessment. However, to vest the commissioner with the discretion to further determine what portion of the penalty will be refunded runs afoul of R.C. 5739.13 and the interpretative case law.
In my view, the rulemaking authority referred to in R.C. 5739.13 would authorize the commissioner to, for example, promulgate a rule allowing the taxpayer to spread payment of the penalty over time. That rulemaking authority does not authorize the commissioner to defeat the mandatory penalty provision of R.C. 5739.13 by administrative fiat.
Accordingly, I would reverse the decision of the court of appeals and remand for a determination of whether the entire amount of the penalty should be remitted to appellant.
C. Brown and J.P. Celebrezze, JJ., concur in the foregoing dissenting opinion.