The opinion
[Cite as 1277 W. Sixth St., L.L.C. v. Cuyahoga Cty. Bd. of Revision, 2023-Ohio-4530.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
1277 WEST SIXTH LLC, ET AL., :
Plaintiffs-Appellants, :
No. 112290
v. :
CUYAHOGA COUNTY BOARD OF :
REVISION, ET AL.,
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 14, 2023
Administrative Appeal from the Board of Tax Appeals
Case Nos. 2021-394, 2021-395, 2021-397, 2021-398, and 2021-399
Appearances:
Bauernschmidt Law Firm, Kelly W. Bauernschmidt and
Karen H. Bauernschmidt, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Reno Oradini, Jr., Assistant Prosecuting
Attorney, for appellee Cuyahoga County Board of
Revision.
LISA B. FORBES, J.:
1277 West Sixth LLC, 1296 West 6th LLC, 1352 West 6th LLC, and
1352 W 6th II LLC (collectively “West Sixth”) appeal the Board of Tax Appeals’ (the
“BTA”) decision and order denying its requests for remission of penalties for late
payment of real property tax. After reviewing the facts of the case and the pertinent
law, we affirm the BTA’s decision.
I. Facts and Procedural History
West Sixth concedes that its 2019 real property tax payments were
not received by the Cuyahoga County treasurer by their due dates. In its appellate
brief, West Sixth provides the following timeline of events:
First half 2019 taxes — Due January 30, 2020 (Extended — Originally
January 23, 2020)
Payment tendered to Liban Post — January 22, 2020 — Sent via
registered mail
Entered in the United States January 29, 2020
Delivered on February 14, 2020
Second Half 2019 Taxes — Due August 13, 2020 — (Extended due to
COVID)
Payment tendered to Liban Post — August 12, 2020 — Sent via
registered mail
Entered into the United States on August 17, 2020
Delivered on August 25, 2020
(Emphasis omitted.)
Late fees were assessed. West Sixth filed its request for remission of
the late payment penalties with the Cuyahoga County Board of Revisions (the
“BOR”), which the BOR denied.
West Sixth appealed to the BTA. The BTA held a hearing on
October 27, 2021. A representative for West Sixth attended the hearing, proffered
testimony of its vice president, and entered exhibits into evidence. The BOR
submitted a written argument.
On December 8, 2022, the BTA issued a decision and order affirming
the decision of the BOR. It is from this order that West Sixth appeals, raising the
following 13 assignments of error:
1. The decision of the BTA is unreasonable and unlawful because the
BTA incorrectly found that the Appellants failed to show that the BOR
erred when it concluded that Appellants failed to timely pay their real
property taxes.
2. The decision of the BTA is unreasonable and unlawful because the
BTA incorrectly affirmed the decisions of the BOR.
3. The decision of the BTA is unreasonable and unlawful because the
BTA incorrectly determined the tax payments were not effectively
postmarked before the payment deadline due to the use of Liban Post
in contradiction of the testimony in the record and International
Treaties.
4. The decision of the BTA is unreasonable and unlawful because the
BTA failed to consider that due to International Treaties and the United
States Postal Services’ (USPS) reciprocity agreements, proof of timely
filing using registered mail satisfies timely filing requirement
regardless of whether registered mail is sent within the United States
or internationally.
5. The decision of the BTA is unreasonable and unlawful because the
BTA incorrectly concluded that the requirement for a USPS postmark
to demonstrate a timely payment was not expanded by
R.C. 5703.056(C)(1) to include international mailing.
6. The decision of the BTA is unreasonable and unlawful because the
BTA incorrectly concluded that the Appellants were aware of the time
delay between mailing the payments and their receipt by the Treasurer
since they had a late payment for 2018.
7. The decision of the BTA is unreasonable and unlawful because it
incorrectly found that the Appellants chose to send the mail closer in
time to the due date because of a misunderstanding that an
inapplicable statute expanded what types of mail would qualify for such
treatment.
8. The decision of the Board of Tax Appeals is unreasonable and
unlawful since the BTA found there was willful neglect by the
Appellants and did not qualify for remission of the late payment
penalties.
9. The decision of the Board of Tax Appeals is unreasonable and
unlawful since the Appellants met their burden of proof to overturn the
Board of Revision findings that the Taxpayers did not demonstrate that
full payment was property mailed on or before the due date and the
mail had not entered the United States Postal Service prior to the due
date.
10. The decision of the Board of Tax Appeals is unreasonable and
unlawful when it failed to recognize the reciprocity of International
Treaties between Lebanon’s Liban Post and the United States Postal
Service for registered mail.
11. The decision of the Board of Tax Appeals is unreasonable and
unlawful since it determined that the Proof of Filing of Registered Mail
by the Taxpayers did not “function as the postmark” for purposes of
R.C. 323,12(B) and was therefore not sufficient to prove timely filing of
taxes.
12. The decision of the Board of Tax Appeals is unreasonable and
unlawful when it determined willful neglect when the underlying Board
of Revision decisions had not determined any willful neglect upon the
Taxpayers.
13. The decision of the BTA is unreasonable and unlawful since the
findings of fact and conclusions of law are against the manifest weight
of the evidence.
II. Law and Analysis
The standard of review of a decision from the BTA is found in
R.C. 5717.04, which states:
If upon hearing and consideration of such record and evidence the
court decides that the decision of the board appealed from is reasonable
and lawful it shall affirm the same, but if the court decides that such
decision of the board is unreasonable or unlawful, the court shall
reverse and vacate the decision or modify it and enter final judgment
in accordance with such modification.
Therefore, this court “must affirm the BTA’s decision if it was
‘reasonable and lawful.’” Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision, 150
Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, ¶ 7, quoting R.C. 5717.04. “In
making this determination, we must consider legal issues de novo * * * and defer to
findings concerning the weight of evidence so long as they are supported by the
record.” (Citations omitted.) Id.
While West Sixth raises 13 assignments of error for our review, the
only issue presented in this appeal, according to West Sixth, is:
[w]hether the Ohio Board of Tax Appeals erred when it failed to
recognize the reciprocity of International Treaties between Lebanon’s
governmental postal service Liban Post and the United States Postal
Service for registered mail. Further, whether the Ohio Board of Tax
Appeals erred in concluding that the Proof of Filing of Registered Mail
by the taxpayers did not “function as the postmark” for purposes of
R.C. 323[.]12(B) and was therefore not sufficient to prove timely filing
of taxes.
As framed by West Sixth, the crux of its appeal is, thus, whether West
Sixth “timely sent the real estate tax payments from Lebanon * * * via Registered
Mail” such that, the BTA erred when it “failed to determine that the real estate tax
payments were timely paid * * *.”
We agree that each of West Sixth’s assignments of error can be
resolved by addressing the issue presented by West Sixth. Accordingly, we will
review all 13 assignments of error together.
Pursuant to R.C. 323.12(B), real property taxes are considered paid
“if the tax payment is received by the county treasurer * * * on or before the last day
for payment of such tax, or if the tax payment is received after such date in an
envelope that was post marked by the United States Postal Service on or before the
last day for payment of such tax.”
As noted, West Sixth concedes that its tax payments were not received
by the county treasurer on or before the last day for payment. The payment for the
first half of 2019’s real property taxes, which was due no later than January 30,
2020, was not delivered to the Cuyahoga County treasurer until February 14, 2020.
The payment for the second half of 2019’s real property taxes, which was due no
later than August 13, 2020, was not delivered until August 25, 2020.
Nevertheless, West Sixth contends that its tax payments were not late
because it “timely sent the real estate tax payments from Lebanon to the Cuyahoga
County treasurer.” According to documents presented by West Sixth at the BTA
hearing, taxes due January 30, 2020, for first half of 2019 were sent on January 22,
2020, by registered mail from Lebanon via Liban Post; and real property taxes due
August 13, 2020, for the second half of 2019 were sent on August 12, 2020, by
registered mail from Lebanon via Liban Post.
In support of its position that its tax payments were timely, West
Sixth urges this court to follow R.C. 5703.056(C), which states:
In any section of the Revised Code referring to the date any payment or
document is received by the tax commissioner by mail, * * * the
payment or document shall be considered to be received on * * *.
(1) For a document or payment sent by certified mail, express mail,
United States Mail, foreign mail, * * *, the date of the postmark placed
by the postal or delivery service on the sender’s receipt * * *.
(Emphasis added.) R.C. 5703.01 created the Ohio Department of Taxation, “which
shall be composed of the tax commissioner and his employees * * *.”
The tax commissioner’s powers and duties are outlined in R.C. 5703.04 and
5703.05.
West Sixth does not dispute that its tax payments were not made to
the tax commissioner. Rather, evidence produced at the hearing before the BTA
demonstrates that West Sixth’s checks were made payable to the Cuyahoga County
Treasurer. R.C. 321.01 establishes that a county treasurer shall be elected in each
county, with the duties and responsibilities of the county treasurer outlined in R.C.
Chapter 321. West Sixth provides no authority for its position that R.C. 5703.056
governs payments for real property taxes to the Cuyahoga County Treasurer. We
find that R.C. 5703.056 does not apply here because West Sixth’s real property tax
payments were made to the county treasurer, not the tax commissioner.
Further, we find that the BTA acted reasonably and lawfully when it
applied R.C. 323.12(B) to conclude that West Sixth was late in paying its real
property taxes for 2019. To timely pay under R.C. 323.12(B), West Sixth’s tax
payments needed to be either (1) received by the county treasurer no later than the
last day for payment, or (2) delivered to the county treasurer in an “envelope that
was post marked by the United States Postal Service on or before the last day for
payment of such tax.”
West Sixth did not establish that it met either of the R.C. 323.12(B)
timing requirements. It admitted that the county treasurer received its 2019 real
property tax payments after the due dates. Further, while West Sixth did present
evidence that it sent the payments via Liban Post prior to the due dates, it did not
present any evidence establishing that the envelopes containing the tax payments
bore post marks by the United States Postal Service dated prior to either due date.
Furthermore, West Sixth takes issue with the BTA’s finding that its
late payment constituted willful neglect and thus further supported the BOR’s denial
of West Sixth’s request for remission of late payments. R.C. 5715.39(C) permits the
remission of real property tax late-payment penalties if it is determined “that the
taxpayer’s failure to make timely payment of the tax is due to reasonable cause and
not willful neglect.” Here, the BTA stated that, based on the record before it, West
Sixth was “aware of the time delay between mailing the payments and their receipt
by the Treasurer since they had a late payment for 2018. Yet, they chose to send the
mail closer in time to the due date because of a misunderstanding that an
inapplicable statute expanded what types of mail would qualify for such treatment.”
Because West Sixth was aware, based on its experience with its late 2018 tax
payment, which the county did not consider payments timely, which were sent via
Liban Post and not received prior to their due date, the BTA acted reasonably and
lawfully in finding that West Sixth’s late payment for 2019 constituted willful
neglect.
Accordingly, we find that the BTA did not err when it denied West
Sixth’s requests for remission of real property tax late payment penalties. West
Sixth’s assignments of error are overruled.
Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, JUDGE
MICHELLE J. SHEEHAN, P.J., and
MARY J. BOYLE, J., CONCUR