Ilt the ^&upreme Court of bio. Appellant, On Appeal from the Ohio Board of Tax Appeals

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1 i INAL Ilt the ^&upreme Court of bio SARUNAS ABRAITIS, Case No V. Appellant, On Appeal from the Ohio Board of Tax Appeals JOSEPH W. TESTA, TAX COMMISSIONER OF OHIO, Appellee. Board of Tax Appeals Case Nos A and 2011-A-3974 MERIT BRIEF OF APPELLEE JOSEPH W. TESTA, TAX COMMISSIONER OF OHIO CATHERINE M. BRADY ( ) Law Office 4417 West 189th Street Cleveland, Ohio (216) Counsel for Appellant Sarunas Abraitis EFOL1f MICHAEL DEWINE ( ) Ohio Attorney General DANIEL W. FAUSEY* ( ) MELISSA W. BALDWIN ( ) Assistant Attorneys General *Counsel of Record 30 East Broad Street, 25th Floor Columbus, Ohio (614) (614) (Fax) Counsel for Appellee Joseph W. Testa, Tax Commissioner of Ohio JAN ^^ZV'a3 CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS INTRODUCTION...1 STATEMENT OF CASE AND FACTS Mr. Abraitis' Petitions for Reassessment to the Tax Commissioner contained only one basis for reassessment: that, as a private citizen of the United States not living abroad, Mr. Abraitis assertedly was not subject to federal income taxation...:2 2. Mr. Abraitis filed a pro se notice of appeal to the Board of Tax Appeals, which could be interpreted to assert that, as a private U.S. citizen, he was not subject to taxation In proceedings before the BTA, Mr. Abraitis' counsel subsequently filed two "amended" notices of appeal, both of which exceeded the scope of Mr. Abraitis' petitions for reassessment The Board of Tax Appeals dismissed Mr. Abraitis' appeal Mr. Abraitis' notice of appeal to this Court fails to include the sole issue raised in his petition for reassessment...5 LAW AND ARGUMENT...:...6 Appellee Tax Commissioner's Proposition of Law No. 1: This Court does not have jurisdiction over this appeal, because the errors assigned in Mr. Abraitis' notice of appeal to this Court exceed and do not include the sole issue raised in his petition for reassessment before the Tax Commission en Appellee Tax Commissioner's Proposition of Law 2: When a taxpayer appeals a decision of the BTA to the Supreme Court, the Court's review is limited to determining whether the BTA decision is reasonable and lawful... 8 l. A general averment of fraud in a notice of appeal does not meet the specificity requirement in R.C Proceedings before the BTA are a part of the state law of Ohio and Mr. Abraitis has participated in these proceedings Gov.Bar. R. VII has no application to the matter presented in this appeal Summary : CONCLUSION...:...12 i

3 TABLE OF AUTHORITIES CASES Page(s) Am. Fiber Sys., Inc. v. Levin, 125 Ohio St.3d 374, 2010-Ohio-1468, 928 N.E.2d , 7, 8, 12 Brown v. Levin, 119 Ohio St.3d 335, 2008-Ohio-4081, 894 N.E.2d , 9 Buckley v. Wilkins, 105 Ohio St.3d 350, 2005-Ohio-2166, 826 N.E.2d , 10 CNG Development Co. v. Limbach, 63 Ohio St.3d 28, 584 N.E.2d 1180 (1992)...6, 7 Delaney v. Testa, 128 Ohio St.3d 248, 2011-Ohio-0550, 943 N.E.2d , 11 Federated Dept. Stores, Inc., Rike Kumler Div. v. Lindley, 5 Ohio St.3d 213, 450 N.E.2d 687 (1983)...:...8, 12 Greenspan v. Third Fed. S&L Assn., 122 Ohio St.3d 455, 2009 Ohio 3508, 912 N.E.2d , 12 Kern v. Tracy, 72 Ohio St.3d 347, 650 N.E.2d 428 (1995)...6 Lonsdale v. United States, 919 F.2d 1440 ( 10th Cir.1990)...:...3 Martin v. Commissioner, 756 F.2d 38 (6th Cir.1985)...3 Ohio Bell Tel. Co. v. Levin, 124 Ohio St.3d 211, 2009-Ohio-6189, 921 N.E.2d , 9 Osborne Bros. Welding Supply, Inc. v. Limbach, 40 Ohio St.3d 175, 532 N.E.2d 739 ( 1988)...7 Queen City Valves, Inc. v. Peck, 161 Ohio St. 579, 120 N.E.2d 310 (1954)...9 Robbins Co. v. Levin, BTA No A-1740 (Feb. 21, 2012)...6 STATUTES R. C ii

4 R.C (B), (C)...11 R.C , 11 R.C R.C , 8, 10 R.C R.C (B)...6 R.C R.C (B)...6, 7, 9 R. C R.C. Chapter OTHER AUTHORITIES Constitution, Article 12, Section 3(B)...10 Constitution, Article II, Section 15(A)...10 Gov.Bar R. VII...11 iii

5 INTRODUCTION The Board of Tax Appeals dismissed this case for lack of jurisdiction and this Court should do the same. This Court has no jurisdiction to consider the taxpayer's newly-minted appellate arguments because they were not raised before the Tax Commissioner or the BTA below. In 2011, the Tax Commissioner issued assessments for individual income tax for the 2003, 2004, 2005, 2006, and 2007 tax years to Sarunas Abraitis. Mr. Abraitis filed petitions for reassessment, contesting the tax assessments. His sole argument in his petition for reassessment was that of a "tax protester"-that he was not subject to the imposition of a federal personal income tax and that the United States lacked "jurisdiction" to impose it. The Tax Commissioner affirmed the assessments in his final determination. Mr. Abraitis appealed the Tax Commissioner's determination to the Board of Tax Appeals ("BTA"). In his initial, pro se appeal, Mr. Abraitis filed numerous documents that were apparently cut-and-pasted from various sources and contained handwritten annotations and emphasis. These documents set forth, at best, another tax protester argument. The BTA treated these documents as a notice of appeal and docketed the case. Subsequently, Mr. Abraitis' counsel filed another, independent notice of appeal and then an amended notice of appeal, attempting therein to present additional issues for review. The BTA concluded that the issues presented in all of Mr. Abraitis' notices of appeal differed from the issue raised in the petition for reassessment and the BTA dismissed the case for lack of jurisdiction. Mr. Abraitis appealed the BTA's determination to this Court and again, has failed to argue or identify as error any issue that was initially presented in his petition for reassessment. Nor has Mr. Abraitis, in his three propositions of law, raised any issue that was assigned as error to the BTA. Accordingly, because Mr. Abraitis has failed to properly invoke the jurisdiction of 1

6 the BTA or this Court, this Court should affirm the decision and order of the BTA, which dismissed this matter. Alternately, even if Mr. Abraitis' appeals properly invoked the jurisdiction of the reviewing courts, his arguments fail as a matter of law. Because the BTA acted reasonably and lawfully, this Court should affirm the decision and order of the BTA. STATEMENT OF CASE AND FACTS Mr. Abraitis, appellant in this matter, was assessed after corrections were made to his 2003, 2004, 2005, 2006, and 2007 Ohio individual income tax returns (Assessments No , , , , and ). See STl at 8, 19, 30, 41, Mr. Abraitis' Petitions for Reassessment to the Tax Commissioner contained only one basis for reassessment: that, as a private citizen of the United States not living abroad,lvlr. Abraitis assertedly was not subject to federal income taxation. Following service of the assessments, Mr. Abraitis mailed four letters to the Tax Commissioner, stating that: Mr. Abraitis is not an alien, foreign corporation, officer, director, stockholder or employee of a foreign corporation, withholding agent or taxpayer, nor a citizen of the United States living and working abroad or in a possession of the United States. Therefore, Mr. Abraitis is not subject to the jurisdiction of the United States. ST at 2, 13, 24, 35, and 46. Consequently, Mr. Abraitis asserted, the "documents" sent by the Tax Commissioner (the notices of assessment) constituted "fraud, as th2ey have no standing in law" and were "unacceptable." Id.. ' For purposes of this merit brief, the statutory transcript certified by the appellee Tax Commissioner to the BTA will be referred to as "ST". 2

7 In common parlance, Mr. Abraitis' proposition is regarded as the position of a "tax protester"; one who objects to the imposition of a federal personal income tax. 2 Mr. Abraitis did not challenge Ohio's authority to levy an income tax upon him, therefore failing to specify any error committed by the Tax Commissioner. See BTA Order at 4 ("we find no discernible specifications of error raised within the petitions for reassessment.") Nonetheless, Mr. Abraitis' letters specifically refer to the Tax Commissioner's assessments by date, form number, and the individual assessment numbers themselves. Id. The Tax Commissioner treated Mr. Abraitis' letters as petitions for reassessment and subsequently issued one final determination for all four petitions for reassessment, dated July 19, ST at 1. In this final determination, the Tax Commissioner affirmed the assessment, finding that Mr. Abraitis "failed to refute the accuracy of the tax and interest amounts assessed. Furthermore, Department records reflect that the tax and interest amounts assessed in this matter are accurate, and the penalties assessed are not unreasonable. Therefore [Mr. Abraitis'] objections are not well taken." Id. Prior to the Commissioner's issuance of his final determination on the petitions, Mr. Abraitis had made no further written submissions to the Tax Commissioner. 2 This argument, along with many other "tax protester" arguments, has been uniformly rejected by the courts. See, e.g., Martin v. Commissioner, 756 F.2d 38, 40 (6th Cir.1985) ("[Appellant's] first argument, in a nutshell, is that he is not a taxpayer within the meaning of the tax laws. For this reason, appellant claims he does not fall within the jurisdiction of either the Internal Revenue Service or the Tax Court... This argument is baseless."); Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir.1990) (The "arguments alluded to by the [appellants] are completely lacking in legal merit and patently frivolous"). This Court has not opined on the jurisdiction of the United States to impose an income tax, but has ruled that the State of Ohio may lawfully collect an individual income tax. See, e.g., Buckley v. Wilkins, 105 Ohio St.3d 350, 2005-Ohio-2166, 826 N.E.2d 811, 15. 3

8 2. Mr. Abraitis filed a pro se notice of appeal to the Board of Tax Appeals, which could be interpreted to assert that, as a private U.S. citizen, he was not subject to taxation. Following the issuance of the Tax Commissioner's final determination, Mr. Abraitis mailed several documents to the Board, which were docketed as a notice of appeal on November 7, 2011, and as case no See Motion to Dismiss of Tax Commissioner filed before the BTA on May 21, 2012 ("Motion to Dismiss"), Exhibit A. In these documents, the grounds for Mr. Abraitis' appeal were not separately set forth. At best, the documents appear to loosely support the position that a private U.S. citizen not living abroad is not a "taxpayer" and is therefore not required to pay federal income taxes. 3. In proceedings before the BTA, Mr. Abraitis' counsel subsequently filed two "amended" notices of appeal, both of which exceeded the scope of Mr. Abraitis' petitions for reassessment. Thereafter, Mr. Abraitis, through counsel, filed another notice of appeal on November 11, Motion to Dismiss, Exhibit B. This appeal was docketed by the Board as case no While the appeal specified certain errors of the Tax Commissioner, it did not repeat the sole error identified in the petition for reassessment, which was that Mr. Abraitis is not a "taxpayer" under the law and is therefore not required to pay federal income taxes. Id. at 2-3. On November 23, 2011, Mr. Abraitis filed a motion to consolidate the two Board appeals, which motion the Board granted on November 29, Thereafter, again through counsel, Mr. Abraitis filed an "Amended Notice of Appeal" with the Board on December 21, Motion to Dismiss, Exhibit C. This notice of appeal 3 Mr. Abraitis' BTA original and/or amended notices of appeal may have been untimely filed. Although his "Amended Notice of Appeal" is dated November 17, it was not filed until December 21 and, therefore, may have been after the expiration of the sixty-day period for timely filing a notice of appeal from service of the final determination, as set forth in R.C Whether this separate independent basis for dismissal applies is dependent on 4

9 also contains a section specifying errors of the Tax Commissioner, but again did not include the sole "tax protester" error specified in the petition for reassessment. The amended notice of appeal avers that it "incorporates and supplements" the November 11, 2012, notice of appeal. Id. at The Board of Tax Appeals dismissed Mr. Abraitis' appeal. On May 21, 2012, the Tax Commissioner filed a motion to dismiss on the grounds that Mr. Abraitis failed to specify error with regard to the sole issue raised in Mr. Abraitis' petition for reassessment. The Board issued a decision and order on August 14, 2012, granting the Tax Commissioner's motion to dismiss. The Board found that "none of the petitions [for reassessment] raised the issues now being raised in the subject notices of appeal," and held that Mr. Abraitis was unable to "raise new/different issues at this junction, before this board." Abraitis v. Testa, BTA Nos A-3870, 2011-A-3974 (Aug. 14, 2012) ("BTA Order"). 5. Mr. Abraitis' notice of appeal to this Court fails to include the sole issue raised in his petition for reassessment. On September 5, 2012, Mr. Abraitis, through counsel, filed a notice of appeal with this Court, claiming 33 assignments of error. This appeal has been docketed as case no None of these 33 errors include the sole issue raised by Mr. Abraitis in his petition for reassessment. In response, the Tax Commissioner filed a motion to dismiss case no This motion remains pending. Subsequently, Mr. Abraitis has filed his merit brief. In this brief, the 33 assigned errors are replaced with three propositions of law, but again, none of the propositions of law include the sole issue raised by Mr. Abraitis in his petition for reassessment. when service of the final determination was made - which has not yet been established in the evidentiary record, so that this separate and independent jurisdictional basis for dismissal is not presented at this time. However, the BTA did not rule on whether the appeal was timely. 5

10 LAW AND ARGUMENT Appellee Tax Commissioner's Proposition of Law No. 1: This Court does not have jurisdiction over this appeal, because the errors assigned in Mr. Abraitis' notice of appeal to this Court exceed and do not include the sole issue raised in his petition for reassessment before the Tax Commissioner. For Ohio individual income taxation purposes, R.C (B) contains the provisions for the filing of a petition for reassessment and the Commissioner's consideration thereof: Unless the party assessed files with the tax commissioner within sixty days after service of the notice of assessment, either personally or by certified mail, a written petition for reassessment, signed by the party assessed or that party's authorized agent having knowledge of the facts, the assessment becomes final, and the amount of the assessment is due and payable from the party assessed to the commissioner with remittance made payable to the treasurer of state. The petition shall indicate the objections of the party assessed, but additional objections may be raised in writing if received by the commissioner prior to the date shown on the final determination. If the petition has been properly filed, the commissioner shall proceed under section of the Revised Code. (Emphasis added.) "[A] taxpayer has not substantially complied with [R.C (B)], so as to invoke the right to review of a particular error, if he has not set forth that error" in the petition for reassessment. CNG Development Co. v. Limbach, 63 Ohio St.3d 28, 32, 584 N.E.2d 1180 (1992); Am. Fiber Sys., Inc. v. Levin, 125 Ohio St.3d 374, 2010-Ohio-1468, 928 N.E.2d 695, 15. See also Kern v. Tracy, 72 Ohio St.3d 347, 650 N.E.2d 428 (1995). R.C (B) also permits a taxpayer to raise additional objections with the commissioner, if submitted in writing prior to the date upon which the commissioner issues his final determination. However, when a taxpayer has not advanced such written objections, neither the Tax Commissioner nor the Board has jurisdiction to consider the issues upon appeal. CNG at 32; Am. Fiber Sys. at 15; Robbins Co. v. Levin, BTA No A-1740 (Feb. 21, 2012). 6

11 In this case, Mr. Abraitis' petition for reassessment only contained the federal tax protester issue. Further, Mr. Abraitis made no further written submissions to the Tax Commissioner prior to the Commissioner's issuance of his final determination on the petitions, as permitted by R.C (B). At best, the federal tax protester concern is the only issue over which the BTA could have exercised jurisdiction. However, this is only a general proposition regarding the imposition of a federal income tax, with no explanation of how or why such a proposition has any relevancy to the Tax Commissioner's assessment of Ohio income taxes. A mere assertion of freedom from federal income taxes does not set forth any error committed by the Ohio Tax Commissioner in his assessment of Ohio income taxes. Accordingly, it is no surprise that the BTA determined that there were "no discernible specifications of error raised within the petitions for reassessment." BTA Order at 4. However, as the BTA ultimately held dispositive, "none of the petitions [for reassessment] raised the issues now being raised in the subject notices of appeal." BTA Order at * 4. Accordingly, the BTA properly dismissed the case. See id. at * 5, and see CNG, 63 Ohio St.3d at 32, 584 N.E.2d 1180; Am. Fiber Sys. at 15; Ohio Bell Tel. Co. v. Levin, 124 Ohio St.3d 211, 2009-Ohio-6189, 921 N.E.2d 212, 28. This Court has explained that its appellate jurisdiction in BTA appeals is "derivative" of the BTA's jurisdiction. See, e.g., Delaney v. Testa, 128 Ohio St.3d 248, 2011-Ohio-0550, 943 N.E.2d 546, 15, fn.3; Brown v. Levin, 119 Ohio St.3d 335, 2008-Ohio-4081, 894 N.E.2d 35, fn.4. The BTA's lack of jurisdiction results in an appellate court's lack of jurisdiction. Osborne Bros. Welding Supply, Inc. v. Limbach, 40 Ohio St.3d 175, 178, 532 N.E.2d 739 (1988). 7

12 When, as here, the appellant has raised exclusively issues that were not presented to the Tax Commissioner, there is nothing for this Court to review. Even if Mr. Abraitis had raised the federal tax protester issue before the BTA, this Court would still lack jurisdiction to review this appeal, because Mr. Abraitis has not raised the tax protester issue before this Court. That is to say, the only issue that Mr. Abraitis could have appealed was not appealed. Accordingly, this Court lacks jurisdiction over the propositions of law presented by Mr. Abraitis in this appeal and the decision and order of the BTA should be affirmed. Appellee Tax Commissioner's Proposition of Law 2: When a taxpayer appeals a decision of the BTA to the Supreme Court, the Court's review is limited to determining whether the BTA decision is reasonable and lawful. Even if Mr. Abraitis' appeal could withstand dismissal and the propositions of law could properly be considered by this Court, his arguments would still fail as a matter of law. In this regard, this Court's review of a decision from the BTA is limited to determining whether the BTA acted reasonably and lawfully. Am. Fiber Sys., 125 Ohio St.3d 374, 2010-Ohio-1468, 928 N.E.2d 695, at 12; Federated Dept. Stores, Inc., Rike Kumler Div. v. Lindley, 5 Ohio St.3d 213, 215, 450 N.E.2d 687 (1983). 1. A general averment of fraud in a notice of appeal does not meet the specificity requirement in R.C Mr. Abraitis' first proposition of law argues that to claim an error in BTA proceedings, a general averment of fraud is adequate. This argument, however, is contrary to the statutory provisions that guide appeals from decisions of the BTA. Notices of appeal filed by a taxpayer to the BTA from the Commissioner's final determination require the claimed errors to be specified. R.C This Court has stated that "a notice of appeal which does not enumerate in definite and specific terms the precise errors 8

13 claimed but uses language so broad and general that it might be employed in nearly any case is insufficient to meet the demands of the statute." Queen City Valves, Inc. v. Peck, 161 Ohio St. 579, 120 N.E.2d 310 (1954), syllabus. See also Brown, 119 Ohio St.3d 335, 2008-Ohio-4081, 894 N.E.2d 35, at 17, 18. A similar requirement is also present when a taxpayer files a petition for reassessment from the Tax Commissioner's original assessment. In this regard, the taxpayer's petition "shall indicate the objections of the party assessed." R.C (B). The specifications of error must be explicit and precise and tie the facts of the case to the alleged error by explaining how the Commissioner erred. Ohio Bell Tel. Co., 124 Ohio St.3d 211, Ohio-6189, 921 N.E.2d 212, at 28. Mr. Abraitis' first proposition of law relies on a general allegation of fraud, yet the applicable statutory and decisional law standards require a taxpayer to sufficiently specify error in a notice of appeal to the BTA. A general averment of fraud cannot meet this foregoing standard because fraud could be raised in any tax case and does not present any definite language to specify the precise error claimed. Queen City Valves at syllabus. In this regard, Mr. Abraitis' contention is contrary to the established statutory and decisional law and, arguably, presents no error for review. 2. Proceedings before the BTA are a part of the state law of Ohio and Mr. Abraitis has participated in these proceedings. In Mr. Abraitis' second proposition of law, he contends that that the BTA decision undermines state law and "cedes a state right to the federal government." Notwithstanding Mr. Abraitis' claim, this argument is without merit. The statutory provisions pertaining to the appointment of the Tax Commissioner, the creation of the BTA, and appeals to and from the BTA board have been duly enacted and are amended with regularity. See, e.g., R.C (powers and duties of the BTA), R.C

14 (appointment of members of the BTA and terms in office), R.C (powers, duties, and functions of tax commissioner), R.C (appeals to the BTA from final determinations), R.C (appeals to the Supreme Court from the BTA), R.C (general duties of the commissioner), R.C (liability for failure to file return or collect or remit taxes; assessment; petition for reassessment). In this matter, there is no dispute that all the statutorily required proceedings before the Commissioner and BTA have taken place. Moreover, there is also no dispute that Mr. Abraitis has fully participated in all aspects of the proceedings in this matter, notwithstanding his assertion that the proceedings before the BTA improperly deferred to the federal tax system. In this regard, Mr. Abraitis appears to misconstrue the nature of the state proceedings. State tax laws may relate to federal tax laws to the extent that the state invokes definitions from federal laws to provide uniform terms and definitions. But this does not mean that state laws are void or in violation of the Ohio Constitution. Buckley v. Wilkins, 105 Ohio St.3d 350, 2005-Ohio-2166, 826 N.E.2d 811, 14, 20 (the general assembly's reference to or incorporation of terminology found in the Internal Revenue Code does not constitute a violation of the Ohio Constitution); Constitution, Article II, Section 15(A) ("The general assembly shall enact no law except by bill"). Rather, it simply means that the state tax proceedings have a separate and independent basis from the federal proceedings. See Constitution, Article 12, Section 3(B) ("The taxation of incomes, and the rates of such taxation may be either uniform or graduated, and may be applied to such incomes and with such exemptions as may be provided by law"); R.C. Chapter 5747 (provisions pertaining to income tax). Further, without a suggestion that Mr. Abraitis attempted, but was denied the opportunity, to participate in the proceedings before the Commissioner or the BTA, there are no apparent 10

15 constitutional grounds to challenge the state proceedings. See, e.g., Delaney, 128 Ohio St.3d 248, 2011-Ohio-0550, 943 N.E.2d 546, at 22, (taxpayer's due process claim denied because there was no indication that the taxpayer was denied the right to participate in the proceedings before the BTA). Consequently, the arguments raised in the second proposition of law have no merit. 3. Gov.Bar. R. VII has no application to the matter presented in this appeal. Mr. Abraitis' third proposition of law argues that Gov.Bar R. VII applies to proceedings before the BTA. Gov.Bar. R. VII pertains to the unauthorized practice of law. Mr. Abraitis argues that because the BTA decision and order was issued by the BTA Secretary, who is neither an attorney nor the Commissioner, legal services were rendered to the BTA by a non-attorney in violation of the rule. Mr. Abraitis' argument in this regard, however, is misplaced. Although at least two BTA members "shall have been admitted to practice as attorneys at law in this state," there is no statutory requirement that the BTA Secretary must be a licensed attorney. R.C Rather, the BTA Secretary is appointed by the members of the BTA, serves at the pleasure of the BTA, and has the primary responsibility of maintaining a journal that records all the BTA proceedings and votes. R.C (B), (C). Thus, in contrast to Mr. Abraitis' assertion, the BTA Secretary has not made a filing on behalf of the BTA within the meaning of the unauthorized practice of law rules. Additionally, complaints that allege the unauthorized practice of law "shall be filed in the office of the Secretary" to the Board on the Unauthorized Practice of Law. To the extent that Mr. Abraitis has a complaint regarding the unauthorized practice of law, the procedures set forth in Gov.Bar R. VII must be followed. Greenspan v. Third Fed. S&L Assn., 122 Ohio St.3d 455, 11

16 2009-Ohio-3508, 912 N.E.2d 567, 17. These procedures have not been invoked and the issue in Mr. Abraitis' third proposition of law has not been raised in an appropriate forum. Greenspan at Summary Upon consideration of the foregoing, Mr. Abraitis' propositions of law fail as a matter of law. The BTA acted reasonably and lawfully when it dismissed Mr. Abraitis' appeal and this Court should affirm that decision. Am. Fiber Sys., 125 Ohio St.3d 374, 2010-Ohio-1468, 928 N.E.2d 695, at 12; Federated Dept. Stores, 5 Ohio St.3d at 215, 450 N.E.2d 687. CONCLUSION For the foregoing reasons, the Tax Commissioner respectfully requests that this Court affirm the decision of the Board of Tax Appeals. Respectfully submitted, MICHAEL DEWINE ( ) O' A orn y General DANIE W. FAUS Y* ( ) MELISSA W. BALDWIN ( ) *Counsel of Record Taxation Section 30 E. Broad Street, 25th Floor Columbus, Ohio fax daniel.fausey@ohio attorneygeneral.gov Counsel for Appellee Joseph W. Testa, Tax Commissioner of Ohio 12

17 CERTIFICATE OF SERVICE I certify that a copy of the foregoing motion was mailed to Catherine M. Brady, Esq West 189th Street, Cleveland, Ohio 44135, and ed to cmbradyl7@hotmail.com, counsel for appellant, this 28th day of January, D el W. Fausey Assistant Attorney GL41/