Ritchie Photographic v. Limbach , 71 Ohio St. 3d 440 ( 1994 )

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Ritchie Photographic, Appellant v. Limbach, Tax Commr.,
Appellee.
[Cite as Ritchie Photographic v. Limbach (1994), Ohio
St.3d .]
Taxation -- Sales and use tax -- Sales of school children
photographs to students or parents are taxable.
(No. 93-1500 -- Submitted September 9, 1994 -- Decided
December 30, 1994.)
Appeal from the Board of Tax Appeals, No. 90-D-780.
For the audit period October 1, 1984 through March 31,
1988, the Tax Commissioner of Ohio assessed appellant, Ritchie
Photographic ("Ritchie"), $42,123.80 plus fifteen percent
penalty for sales and use taxes. Ritchie appealed to the Board
of Tax Appeals ("BTA"), claiming exemption from taxation
because it sold photographs to schools or school districts
("schools"). An evidentiary hearing was conducted on May 16
and 17, 1991 by a BTA attorney-examiner and, on June 25, 1993,
the assessment was affirmed. Ritchie avers that the matter was
transferred to another attorney examiner, before the BTA
rendered its decision.
Ritchie is a sole proprietorship operated by John and
Lavonne Ritchie out of Cincinnati, Ohio. Ritchie produces and
sells photographs of school children . Ritchie responds to
solicitations of bids from schools and enters into oral or
written contracts with schools . The school selects the
picture-taking dates and determines the commission to be paid
to the school for participation in the program. As an example,
Northwest Junior High School was paid a thirty-five percent
commission, and members of the board of education's treasurer's
office collected the price of photographs from the student or
the parent at the time of the sitting. The school also
determines which packages of pictures should be made available
for purchase; however, the choice of a particular package and
the selection of individual pictures is left to the student or
the parent. Under a typical contract, Ritchie provides color
photographs as requested by students or parents, and guarantees
customer satisfaction. Ritchie also supplies free photographs
of each student for use in the school security program required
by R.C. 3319.322.
The cause is now before the court upon an appeal as of right.
Thomas A. Simons, Jr.; Graydon, Head & Ritchey, Harry J.
Finke,IV, and Susan J. Dlott , for appellant.
Lee Fisher, Attorney General, and Janyce C. Katz,
Assistant Attorney General, for appellee.
Per Curiam. Ritchie alleges the BTA violated its right of
due process of law and denied it the equal protection of the
laws because the BTA changed attorney-examiners during the
process of deciding the case. Also, Ritchie contends the BTA
erred in its factual conclusion that Ritchie was selling
photographs to students rather than to the schools, which would
be exempt from paying tax. .
At oral argument, Ritchie renewed its motion to supplement
the record, contending it had been denied due process of law
because the BTA replaced the attorney-examiner who had
conducted the evidentiary hearing with another
attorney-examiner who worked from a "cold record" to decide
that the Tax Commissioner's assessment was proper. That motion
was denied prior to oral argument.
The instant decision is clearly the BTA's decision and not
an attorney-examiner's. Ritchie presented no evidence
concerning the details of the hearing to support its
allegations; however, the alleged procedure does not violate
any statutory right nor is it a constitutional denial of due
process or equal protection of the laws.
R.C. 5703.02 authorizes the BTA to determine all appeals
of questions of law and fact arising under our tax laws;
R.C.5717.02 entitles the BTA to appoint attorney-examiners to
conduct hearings and to report their findings to the BTA for
affirmation or rejection; and R.C. 5703.13 provides that the
majority of the BTA constitutes a quorum to transact business,
and every order made by a member, when approved by the board,
is deemed the order of the board.
In Laughlin v. Pub.Util. Comm. (1966), 6 Ohio St.2d 110,
35 O.O.2d 132, 216 N.E.2d 60, an attorney-examiner conducted
the hearing; another attorney-examiner made the report and
recommendation. We rejected appellant's objection to the
procedure as being "without merit." Id. at 112, 35 O.O.2d at
133, 216 N.E.2d at 61.
Accordingly, Ritchie's motion to supplement the record is
again denied.
As to the merits of the instant cause, we agree with the
BTA. The transactions involving Ritchie's school photographs
were sales in which the vendor was Ritchie and the consumer was
the student.
R.C. 5739.03, as applicable, provides:
"* * * [T]he tax imposed by * * * 5739.02 * * * shall be
paid by the consumer to the vendor, and each vendor shall
collect from the consumer * * * the tax payable on each taxable
sale * * *."
Ritchie applied for exemption under R.C. 5739.02(B)(1)
which exempts "[s]ales to the state, or any of its political
subdivisions. The taxpayer has the burden of showing to what
extent and in what manner the determination of the Tax
Commissioner is in error. Inland Refuse Transfer Co. v.
Limbach (1990), 53 Ohio St.3d 10, 558 N.E.2d 42 ; Midwest
Transfer Co. v.Porterfield (1968), 13 Ohio St.2d 138, 42 O.O.2d
365, 235 N.E.2d 511.
The record supports the BTA's findings that Ritchie
responded to orders for photographs completed by the student or
the parent, promising payment. There is no indication that
orders were placed by schools or that schools purchased and
then sold photographs to students or parents.
The commissioner contends that Ritchie did not introduce a
single contract into evidence which would prove that a school
purchased photographs from Ritchie in order to resell them in
the same form to students. Although Ritchie disputes this,
there is no evidence that any of the schools were vendors as
defined by R.C. 5739.01(C), that the schools ordered Ritchie's
pictures in quantities in order to sell the pictures to the
students, or that the schools made retails sales.
Ritchie had the opportunity, but failed to submit
contracts to support its contention that its sales were made to
schools which then resold the photographs to students or their
parents. Sales such as those involved in this appeal are
presumed to be taxable unless the taxpayer establishes the
contrary. R.C. 5739.02. Ritchie failed to present evidence to
overcome that presumption, and thus, did not meet its burden of
proof.
The BTA specifically found that the schools did not buy
pictures, but merely provided Ritchie with an opportunity to
sell pictures to students, and in return, Ritchie paid the
schools a commission or an agreed amount per package sold.
This finding is neither unreasonable or unlawful, and,
therefore, the decision of the BTA is affirmed.
Decision affirmed.
Moyer, C.J., A.W. Sweeney, Wright, Resnick, F.E. Sweeney
and Pfeifer, JJ., concur.
Douglas, J., dissents.