The opinion
Wright, J.,
concurring in part and dissenting in part. Although I concur in Part II of the majority’s opinion pertaining to the issues raised in *35 Frankelite’s cross-appeal, I must respectfully dissent from Part I of the decision upholding the determination of the Board of Tax Appeals that the commissioner abused his discretion when denying the remission of the penalties.
The majority correctly relies on Interstate Motor Freight System v. Bowers (1960), 170 Ohio St. 483 [11 O.O. 2d 240], for the proposition that before the board may reverse a penalty imposed by the Tax Commissioner, it must first determine that the commissioner abused his discretion when the penalty was issued. Therein, the court reasoned as follows:
“Clearly, therefore, before the Board of Tax Appeals can order the remission of a penalty imposed by the Tax Commissioner * * * it must affirmatively find that the Tax Commissioner abused his discretion in refusing to remit the penalty.
“The determination by the Board of Tax Appeals that the orders of the Tax Commissioner assessing such penalties are unreasonable and contrary to law does not in and of itself constitute a finding that the Tax Commissioner abused his discretion in making such order.
“The Board of Tax Appeals failed to determine that the Tax Commissioner abused his discretion in assessing the penalties. It follows that the board’s decisions, which in effect remit the penalties, are unreasonable and contrary to law and must be reversed.” (Emphasis added.) Id. at 485 .
It is well-settled in Ohio that the term “abuse of discretion” connotes more than an error of judgment. Instead, the term implies, in relation to interfering with the discretionary power of administrative officers, that there has been a “ ‘perversity of will, passion, prejudice, partiality, or moral delinquency’ ” which affected the decision-making process. State, ex rel. Shafer, v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581 , 590-591 [ 50 O.O. 465 ], quoting from People v. N.Y.C. RR. Co. (1864), 29 N.Y. 418, 431 , and Alliance v. Joyce (1892), 49 Ohio St. 7 , 22. See, also, State, ex rel. Commercial Lovelace Motor Freight, Inc., v. Lancaster (1986), 22 Ohio St. 3d 191, 193 .
In the present case, the board reasoned that the taxpayer had made an honest and sincere attempt to comply with Ohio’s tax scheme based on its prior tax payments, the maintenance of numerous exemption certificates, and its cooperation with tax agents during the course of the audit. Although the taxpayer’s actions subsequent to the assessment may have been laudable, such actions, standing alone, are not sufficient to render the commissioner’s decision an abuse of discretion. The board’s findings demonstrate, at most, that the commissioner’s refusal to remit the penalties was unreasonable. Although it is perhaps unfortunate for the taxpayer, the commissioner’s “unreasonableness” does not constitute authority for the board to label that decision as constituting an “abuse of discretion” and then, while substituting its discretion for that of the commissioner, proceed to order a remission. Interstate Motor Freight System v. Bowers, supra.
*36 Here, the record is devoid of evidence that the commissioner abused his discretion when the penalties were not remitted. Accord Plowden & Roberts, Inc. v. Porterfield (1970), 21 Ohio St. 2d 276 [50 O.O. 2d 497]. In other words, there has been no showing that the commissioner’s determination was influenced by passion, prejudice or partiality. It therefore follows, in accordance with the principle articulated in Interstate Motor Freight System v. Bowers, supra, that the board’s decision to remit the penalty was unreasonable and unlawful and must be reversed.