IN THE SUPREME COURT OF CASE NC1..

Transcription

1 IN THE SUPREME COURT OF CROVJN CASTI.E GT COMPANY, LLC, ANI) CROWN COMMUNICATION, INC. vs. Appellants, CASE NC1.. Appeal from the Ohio Board of Tax Appeals Board of Tax Appeals Case No A-1235 RICHARD A. LEVIN, (JOSEPH W. TESTA), TAX COMIVIISSIONER OF Ol-I:IO Appellee. NOTICE OF APPEAL OF APPELLANTS CROWN CASTLE GT COMPANY, LLC ANI) CROWN COMMUNICATION, INC. Steven A. Dimengo # (Counsel of record) Jason Weigand # Richard B. Fry, IIl # BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP 3800 Embassv Parkway, Suite 300 Akron, Ohio Phone: (330) Fax: (330) i3 U S 3., E::raf^s;, s:r, ^: I" Counsel for Appellants, Crovi-n Castle GT Compazly, LLC and Crown Communication, Inc. ^'su33rii:wm i.s0:s^'.'. ^ U r s 3 O Michael DeWine, Attorney General of Ohio Barton A. Hubbard, Assistant Attorney General (Counsel of record) Sophia Hussain, Assistant Attorney General State Office Tower 30 East Broad Street, 25th Floor Columbus, Ohio (f^e ^ z d?03^`^, st ^ Counsel for Appellee, Joseph W. Testa, Tax Commissioner o#' Ohio

2 Notice of Appeal of Appellants, Crown Castle GT Company, LLC and Crown Communication, Inc. Appellants, Crown Castle GT Company, LLC and Crown Communication, Inc. (collectively, the "Taxpayer") hereby give notice of their appeal as of right, under R.C , to the Supreme Court of Ohio. They appeal from the May 29, 2013 Decision and Order of the Board of `I'ax Appeals ("Board") in Case No A "I'his Decision and Order of the Board affirmed the Tax Commissioner's Final Deternnination that the Taxpayer failed to invoke the Tax Com.m.issioner's jurisdiction because their petition for reassessment did not properly set forth any objections. A true copy of the Decision and Order of the Board is attached as Exhibit A. Appellants complain of the following errors in the Decision and Order of the Board: 1. The Tax Commissioner and Board improperly determined that a lack of detailed objections in a petition for reassessment to the Tax Commissioner is a jurisdictional defect. 2. If the Taxpayer's failure to specify objections in a petition for reassessment is jurisdictional, the Tax Commissioner and Board improperly determined that neither he nor the Board had jurisdiction to consider the Taxpayer's objections because the Taxpayer's petition for. reassessment adequately stated objections, including objections to the "values and penalties" contained within the Tax Comnzissioner's amended preliminary assessment certificates of valuation of the Taxpayer's personal property (cellular towers). 3. The Tax Commissioner and Board failed to properly consider the Taxpayer's objections to "values and penalties" set forth in their petition for reassessment in context with the Tax Commissioners' record. 2

3 4. The Board failed to consider evidence submitted by the Taxpayer that the Taxpayer supplemented its petition for reassessment by letter dated October 26, and arbitrarily adopted the Tax Conunissioner's statement that it was never received. 5. The Board improperly found the Taxpayer's letter dated October 29, 2009 did not adequately apprise the Tax Commissioner of any supplement to the Taxpayer's objections for the 2007 and 2008, tax year. 6. The Due Process Clause of the Ohio and U.S. Constitutions requires that the Tax Commissioner allow the r['axpayer to have a hearing on the merits because they substantially complied with the relevant appellate procedure, including R.C Respectfully submitted, E SteNi^n A. Dimengo ( ) nsel of Record) Jaso M. Weigand ( ) Ri llard B. Fry, III ( ) CKINGIiAM, DOOLITTLE & I3t^RROUGHS, LLP 3800 Embassy Parkway, Suite 300 Akron, Ohio Telephone: (330) Facsimile: (330) SDimengo@bdblaw.com JWeigand@bdblaw.com RFry@bdblaw.com CoL-insel for Appellants 3

4 CERTIFICATE OF FILING I certify that on the 27th day of June, 2013 a Notice of Appeal has been filed with the Ohio Board of Tax Appeals. CERTIFICATE OF SERVICE The undersigned hereby certifies that copies of the foregoing Notice of Appeal of Appellants Crown Castle GT Company, LLC and Crown Communication, Inc. were filed by ovemight delivery with the Supreme Court of Ohio, 65 South Front Street, 8tn Floor, Cvlunlbus, Ohio and sent by certified U.S. mail on June 27, 2013 to: Nlicllael DeWine, Attorney General of Ohio Attorzley for Appellee, Joseph W. Testa, Ohio Tax Commissioner c/o Sophia Hussain and Barton A. Hubbard, Assistant Attorney General State Office Tower 30 East Broad Street, 25th Floor Columbus, Oliio M. Weigand #0081 <tak3a i> 4

5 EXHIBIT OHIO BOA:RI) Ok' TAX A:PPEALrS Crown Castle GT Company, LLC/Crown Communication, Inc., vs. Appellants, CASE NO A-1:235 (PERSONAL PROPERTY TAX) DECISION AND ORDER Joseph W. Testa, Tax Commissioner of Ohio, Appellee. APPEARANCES: For the Appellants - Buckingllaln, Doolittle & Burroughs, LLP Steven A. Dimengo 3800 Embassy Parkway, Suite 300 Akron, C)hio For the Appellee Tax Co171iniSsloiler - Michael DeWi«e Attorney General of Ol1io Barton A. Hubbard AssistajIt Attorney General 30 East Broad Street, 25th. Floor Colulnbus, Ollio Entered MAY Mr. Williamson and Mr. Jolirendt concur. This matter is before the Board of Tax Appeals upon a motion to affirm the Tax Commissioner's final determination disrnissing appellants' petitions for reassessment relatirig to personal property tax assessments for tax years 2007 and 2008, the appellants' response, and the commissioner's response thereto. Specifically, in his final determiriation, the commissioner determined that

6 appellants' petitions for - reassessment failed to. invoke the commissioner's jurisdiction because they did not properly specify the errors in/objections to the assessments in question. The appellants responded, indicating that the "Tax Commissioner's basis to affirm the Final Determination dismissing the Petitions is based upon an overly-narrow reading of Crown's Petitions, inapplicable law, and a disregard for the additional v4ritl:en objections Crown provided to the Tax Commissioner before the Final Determination was issued." Response at 2. Specifically, pursuant to R.C , the coi-nmissioner issued three amended preliminary assessment certificates relating to tax years 2007 and 2008 to the appellants. In response, pursuant to the provisions of R.C , appellants filed petitions for reassessment, essentially making the same representation on each, i.e., "[w]e have received the Amended Preliminary Assessment Certificate of Valuation for the above referenced account aj1d want to inforni you that we are not in agreement. Please accept this letter as our forrnal request to appeal the proposed values and penalties on this account." S.T. at 3, 6, 9. Thereafter, in the final determination, the commissioner concluded that the requirements set forth in R.C requiring that a petition for reassessment "indicate the objections of the party assessed" are jurisdictional and mandatory. He stated that "[iln order to invoke the jurisdiction of the Tax Coinmissioner; the petitioners must indicate their objections in their petitions. *** The language in the petitions fails to identify the Tax Commissioner's actions it is questioning, fails to cite relevant statutes and fails to assert the treatment it believes the Tax Commissioner should have applied." 2

7 Supp. S, T. at-3. I.3asedupon such conclusions, the. commissioner determined that appellants' petitions for reassessment failed to invoke the jurisdiction of the Tax Commissioner, and, as such, were dismissed. R.C provides in pertinent part that when a petition for reassessment regarding a personal property assessment is filed, "[t]he petition *** shall indicate the objections of the party assessed, but additional objections may be raised in writing if received prior to the date shown on the final determination by the commissioner." It is the appellants' position that they have "substantially complied" with such requirements "by identifying its objections to valuation and penalties." Response at 2. Further, they contend that the commissioner, in dismissing their petitions, has imposed a requirement of specificity that is not contained in the statutory framework relating to petitions for reassessment filed in response to personal property tax assessments. Specifically, appellants cite to Sorg Fapey Co. v. L,inzbach (1993), 87 Ohio App. 3d 27, as support for their position that "a taxpayer's failure to set forth his objections to the Tax Commissioner in a timely petition is not grounds for dismissal on a lack of jurisdiction." Response at 3. In Sorg, the court highlighted the statutory provision that permits "additional objections" to be raised, so long as they are "received prior to the date shown on the final determination by the commissioner." It held: "Thus, the argument that the 'objection' condition is an essential jurisdictional requirement because it provides the Tax Commissioner with both the scope of the requested review and notice of the substance of the taxpayer's complaint is negated by the legislature's decision to perznit the taxpayer to raise additional objections. By permitting 3

8 additional... objections after the taxpayer's application has been filed, the legislature has denied the Tax Commissioner the benefit of having notice of all of the taxpayer's objections in each timely application for review and redetermination. "We therefore find that little or no prejudice can result from the taxpayer's failure to include his objections of the tax audit in his timely application. Consequently, we are of the opinion that the `objection' requirement does not run to the core of procedural efficiency, nor does it appear that the legislature intended the Tax Commis^ioner to dismiss a taxpayer's application if the 'objection' requirement is not met in the taxpayer's timely application. * ** "We are of course not holding that a taxpayer need not specifically state his objections to the Tax Commissioner. We are instead holding that the taxpayer's failure to set forth his objections in a timely application should not be grounds for dismissal for lack of jurisdiction." Id. at 3 1. Appellants contend they sent additional correspondence to the commissioner supplementing the petitions for reassessment that set forth their objections with further specificity. A letter, dated February 18, 2009, was sent to the audit division of the northeast region of the Department of Taxation; however, it was sent before the amended preliminary assessment certificates of valuation were issued, i.e., May 22, 2009 and June 5, 2009, and clearly cannot be used to supplement the petitions for reassessment, which were not filed until July Response, Ex. IA. A second letter, dated October 26, 2009, was never received by the Department of Taxation. Response, Ex. II3; Tax Comm. Response, 2'6 Tax Comm. Cert. Without evidence of its receipt by the Department of Taxation, this letter also cannot be considered as additional objections filed by the appellants. 4

9 Finally, appellants contend that their notice of appeal regarding 2006 personal property tax assessments that was filed with this board on or after October 29, 2009, with a copy to the commissioner, should have been considered as further objections relating -to their petitions for reassessment regarding the 2007 and 2008 assessments; specifically, the appeal states, "[w]ith this letter, we appeal the final determination decision and petition the increased assessment resulting from the 2006, 2007 and 2008 audits conducted for Crown Castle GT Company LLC (account ) and Crown Comxnunication- Inc (account )," Response, Ex. 1 C. By such statement, it appears that appellants were operating under the assumption that both the appeal and the petitions for reassessment were able to be handled by the same office; however, the appeal and arguably the contentions therein, were addressed to the Board of Tax Appeals, a separate and distinct entity from the Tax Commissioner. While a copy of the appeal was sent to the commissioner in order to perfect this board's jurisdiction over the appeal, see R.C , the commissioner would have had no reason to consider that the appeal was intended to serve the dual purpose of appealing the commissioner's final determination regarding tax year 2006 and amplifying the previously filed petitions for reassessment for tax years 2007 and Accordiiagly, we do not find that the 2006 notice of appeal served to adequately apprise the commissioner that appellants intended to supplement their previously filed petitions for reassessment relating to tax years 2007 and 2008 with additional arguments, as set forth in th.e notice of appeal; appellants did not "affirmatively claim" the errors made by the 5

10 commissioner in--the- as-sessrnent=-of--their-property=withxn-the-=-notice-of-appeal.-see ---._ Am. Fiber Systems, Inc. v. Levin, 125 Ohio St.3d 374, 2010-Ohio The conimissioner, in support of his claim that the appellants' petitions for reassessment lacked the requisite specificity necessary to invoke his jurisdiction, cited numerous cases wherein the court discussed the necessity of an appellant to specify the errors claimed in a notice of appeal to this board, see, e.g., WCI Steel, Inc. v. Testa, 129 Ohio St.3d 256, 2011-Ohio-3280; Brown v. Levin, 119 Ohio St.3d 334, 2008-Ohio-335, or the requirement that only issues previously raised by a taxpayer in a petition for reassessment may be raised in a notice of appeal to this board, see, e.g., Shugarman Surgical Supply v. Zaino, 97 Ohio St.3d 183, 2002-Ohio-5809; CNGDev. Co. v. Limbach (1992), 63 Ohio St.3d 28. The court in Am. Fiber Systems, supra, however, citing CNG, supra, held that "[t]o invoke the right to review of a particular error, the taxpayer must set forth that error with specificity in the petition for reassessment." Id. at ^, 17. It held that the taxpayer "had to affizmatively claim" the commissioners' errors. Id. at T22. Further, in CNG, supra, the court stated: "[W]e have concluded, in contexts involving appeals, that stating error with specificity is a jurisdictional prerequisite, and that the reviewing body is `** " entitled to be advised specifically of the various errors charged ***.' Queen City Valves, Inc. v. Peck (1954), 161 Ohio St. 579, 583 ***. As we noted in Akt on Standard Div. [v. Lindley (1984), 11 Ohio St.3d 10] ***, we see no appreciable difference between notices of appeal and petitions for reassessment in this procedural context * * '`. "Under Akron Standard Div., this specificity requirement runs to the core of procedural efficiency because compliance 6

11 _--- - _- n ^---T---- with-=== it=-=advis.es--ahe...commxssio-ner --of the_scop:e--of = the requested review. Consequently, a taxpayer has not substantially complied with the statute, so as to invoke the right to review of a particular error, if he has not set forth that error with specificity in the petition for reassessment. Accordingly, the commissioner, the BTA, and this court have no jurisdiction over issues not mentioned in CNG's petition for reassessment." (Ernphasis added.) Id. at 32. Thus, based upon the foregoing Supreme Court pronouncements, we find that appellants did not set forth their objections with specificity in their petitions for reassessment; accordingly, the commissioner properly dismissed their petitions for lack of jurisdiction. Appellants also contend that the commissioner's actions violate the taxpayers' rights to procedural due process. Cf. Skuratowicz v. Tracy (1997), 80 Ohio St.3d 52, 54. While the Ohio Supreme Court has authorized this board to accept evidence on constitutional points, it has clearly stated that we have no jurisdiction to decide constitutional claims. Cleveland Gear Co. v, Limbach (1988), 35 Ohio St.3d 229; _1V1CI Telecommunications Corp. v. Limbach (1994), 68 Ohio St.3d 195, 198. Therefore; we acknowledge appellants' constitutional claim, but make no finding in relation thereto. Accordingly, we fmd the commissioner 's motion is well taken and his final deternlination dismissing the taxpayers' petitions for reassessment for lack of 7

12 jur^sdietron^znust=be, and:hereby is^=affirmed: - =-== I hereby certify the foregoing to be a true and complete copy of the action taken by the Board of Tax Appeals of the State of Ohio and entered upon its journal this day, with respect to the captioned matter. ',._ ^ A.J. Ciroeber, ard Secretary 8