Abraitis v. Testa , 137 Ohio St. 3d 285 ( 2013 )

[Cite as Abraitis v. Testa, 137 Ohio St.3d 285, 2013-Ohio-4725.]
ABRAITIS, APPELLANT, v. TESTA, TAX COMMR., APPELLEE.
[Cite as Abraitis v. Testa, 137 Ohio St.3d 285, 2013-Ohio-4725.]
Taxation—Taxpayer’s reassessment petitions should have been dismissed by tax
commissioner because taxpayer failed to prepay the assessment as
required by R.C. 5747.13(E)(3).
(No. 2012-1509—Submitted July 9, 2013—Decided October 29, 2013.)
APPEAL from the Board of Tax Appeals, Nos. 2011-A-3870 and 2011-A-3974.
____________________
Per Curiam.
{¶ 1} In this personal-income-tax case, Sarunas Abraitis appeals from a
decision of the Board of Tax Appeals (“BTA”) that dismissed his appeal for lack
of jurisdiction. The BTA found that Abraitis had asserted “no discernible
specifications of error * * * within the petitions for reassessment” and held that
“Abraitis cannot now raise new/different issues at this juncture” because “ ‘the
failure to raise an issue in a petition for reassessment precludes the BTA from
taking jurisdiction over the issue—even if the issue was raised in the notice of
appeal to the BTA.’ ” Abraitis v. Testa, BTA Nos. 2011-A-3870 and 2011-A-
3974, 2012 WL 3644696, *2 (Aug. 14, 2012), quoting Am. Fiber Sys., Inc. v.
Levin, 125 Ohio St.3d 374, 2010-Ohio-1468, 928 N.E.2d 695, ¶ 15. In arriving at
its conclusion, the BTA rejected another jurisdictional argument advanced by the
tax commissioner: the objection that because Abraitis had not paid the
assessment, the tax commissioner himself had lacked jurisdiction to hear
Abraitis’s reassessment petitions pursuant to R.C. 5747.13(E)(3). Id. at *1. The
BTA reasoned that the prepayment provision was triggered by a failure to file tax
returns, and it inferred from the wording of the tax commissioner’s final
determination that Abraitis had in fact filed returns for the tax years at issue. Id.
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{¶ 2} Abraitis has appealed, and on appeal, both parties are agreed that
Abraitis did not file returns for the tax years at issue. That assertion is consistent
with the record. We therefore reverse the BTA’s ruling that the prepayment
requirement does not apply, vacate the remainder of the BTA’s decision, and
remand the cause to the tax commissioner with instructions that the reassessment
petitions be dismissed for lack of prepayment pursuant to R.C. 5747.13(E)(3).
Facts
{¶ 3} This an appeal from a BTA decision that disposed of five income-
tax assessments issued by appellee, the tax commissioner, against appellant,
Sarunas Abraitis, for the tax years 2003, 2004, 2005, 2006, and 2007. The tax
commissioner asserts that he issued the assessments based on information from
the Internal Revenue Service (“IRS”).
{¶ 4} In these proceedings, Abraitis has advanced specious (and often
incomprehensible) arguments to oppose the tax assessments levied against him.
Most prominently, Abraitis’s reassessment petitions rely upon the contention that
he 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.”
From that assertion, Abraitis draws the unwarranted conclusion that he “is not
subject to the jurisdiction of the United States.” Of course, it is Ohio’s authority
to tax, not that of the federal government, that is relevant here, and Abraitis
notably made no mention of his status as an Ohio resident, which it appears he
was at all relevant times.
{¶ 5} Before the BTA and before this court, however, Abraitis does
advance the serious argument that some or all of the income that forms the basis
for the assessment is actually the income of a person other than Abraitis. He
suggests that the taxing authorities may have confused him with another person
because of a mix-up of Social Security numbers. The question before us,
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however, is whether Abraitis properly invoked and preserved jurisdiction to
permit his contentions to be considered.
1. Content of the assessments
{¶ 6} The transcript certified by the tax commissioner contains copies of
the five assessments issued to Abraitis, all dated February 1, 2011. The
assessments are labeled “notice of assessment/individual income tax,” and there is
one for each of the tax years at issue. Each sets forth a tax-due amount, an
amount of preassessment interest (i.e., the interest accrued between the time
payment was due and the time the assessment was issued), a penalty amount for
late filing, and a penalty amount for late payment. Adding those numbers, the
total due for all five tax years was $8,156.98.
{¶ 7} The notices do not explain the basis for the assessments. But when
he presented oral argument to the master commissioner, the tax commissioner’s
counsel explained that the tax department “received information from the federal
government showing federal adjusted gross incomes for that year [sic, those
years],” and that reported information formed the basis for the assessments.
2. Abraitis’s petitions for reassessment
{¶ 8} In February 2011, Abraitis filed documents that the tax
commissioner treated as reassessment petitions. Each petition is accompanied by
a letter that recites that 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.” Each petition also contains an affidavit
notarized on February 4, 2011. The affidavit in each case is entitled “Verification
of Drawer’s Issue of Currency and Agreement” and sets forth the respective
assessment number and, among other averments, proclaims that Abraitis is “a
man and not a Corporation or agent,” characterizes the assessed amounts as
“presentments,” declares the “presentment” to be “an issue of currency security,”
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and sets forth steps supposedly to be taken by the tax department as a response in
support of the “presentments.” His filings fit into the “tax protester” category, a
category long recognized by the federal courts. Tax-protester filings are typically
composed of “ ‘a hodgepodge of unsupported assertions, irrelevant platitudes, and
legalistic gibberish.’ ” Dunham v. Commr. of Internal Revenue, T.C. Memo.
2003-260, 2003 WL 22073043, *1, 3 (Sept. 8, 2003), quoting Crain v. Commr. of
Internal Revenue, 737 F.2d 1417, 1418 (5th Cir.1984).
3. Denial of the petitions by final determination
{¶ 9} On July 19, 2011, the tax commissioner issued a single final
determination denying all five petitions. The final determination recites that
Abraitis was “assessed after corrections were made to his 2003, 2004, 2005, 2006,
and 2007 individual income tax returns.” The determination notes that Abraitis
“objects to the assessments as issued” but concludes that he “failed to refute the
accuracy of the tax and interest amounts assessed” and that “Department records
reflect that the tax and interest amounts assessed in this matter are accurate.” The
determination makes no mention of any jurisdictional bar to consideration of the
petitions for reassessment; instead, it purports to rule on the merits of the
petitions, and in doing so, implies that Abraitis filed returns, which he did not.
4. Nominal but not full payment
{¶ 10} By money order on or about November 10, 2011, Abraitis made a
payment of $1 toward each assessment. Those payments were in response to an
October 29, 2011 letter from the tax department noting that the $8,156.98 was still
unpaid and that he owed additional postassessment interest of $256.55 as of
November 14, 2011. Thus, Abraitis has apparently paid $5 toward the more than
$8,400 owed.
5. The BTA appeal
{¶ 11} Abraitis’s appeal to the BTA took the form of three filings, the first
two of which the BTA treated as separate notices of appeal. The first set of
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papers was apparently filed by Abraitis himself on November 7, 2011; the second
and third were filed by his counsel on November 15 and December 21, 2011. The
first two were separately docketed and initially assigned separate case numbers,
but the cases were later consolidated. The later notices, filed by counsel, advance
a theory that the income that the federal government had attributed to Abraitis
was actually income of a relative whose Social Security number was similar to
Abraitis’s.
{¶ 12} The proceedings at the BTA included a motion for default
judgment by Abraitis and belated filing of the transcript by the tax commissioner.
{¶ 13} On May 21, 2012, the tax commissioner filed a motion to dismiss
the BTA appeal, asserting two grounds: first, that Abraitis had failed to prepay
the assessment, a requirement imposed by R.C. 5747.13(E)(3)—with the result
that the tax commissioner lacked jurisdiction to consider the petitions for
reassessment and, thus, the BTA and this court lack jurisdiction over the appeals;
and second, that the objections Abraitis raised in the petitions do not include or
encompass the specifications of error in the notices of appeal—with the result that
the BTA lacked jurisdiction to consider the error specified to it.
{¶ 14} The BTA rejected the tax commissioner’s first ground for
dismissal, finding that the final determination indicated that Abraitis had filed
returns when it stated that “corrections were made to [Abraitis’s] 2003, 2004,
2005, 2006, and 2007 individual income tax returns.” Abraitis v. Testa, 2012 WL
3644696, *1. Because R.C. 5747.13(E)(3) applies when no returns have been
filed, the BTA found that the statute’s prepayment requirement did not apply here.
{¶ 15} On the second ground for dismissal, however, the BTA agreed
with the tax commissioner that it lacked jurisdiction to address the errors specified
in the notices of appeal because those errors had not been specifically raised
before the tax commissioner. The BTA therefore dismissed the appeal, and
Abraitis has appealed.
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6. Parallel federal proceedings
{¶ 16} Abraitis states that he is “presently contesting the underlying
income tax liability for tax periods 2003 and 2007 before the United States Tax
Court in Abraitis v. Commr., United States Tax Court No. 4985-12 L, filed
February 23, 2012, which determination will ultimately impact the adjusted gross
income * * * of tax periods 2004, 2005, and 2006.” When she presented oral
argument to the master commissioner, Abraitis’s counsel mentioned a related
Sixth Circuit court case as well as a tax court case. Also at oral argument, the tax
commissioner’s counsel stated that if adjustments were made at the federal level
to the income at issue here, the tax department “would adjust [its] assessments
based on if the feds made changes to their assessments.” Fulfilling that
commitment lies within the commissioner’s authority to correct assessments
pursuant to R.C. 5703.05(H), and it appears that that authority continues even if
the petitions for reassessment in this case are dismissed for lack of jurisdiction.
Analysis
{¶ 17} In reviewing BTA decisions, we look to see if they are reasonable
and lawful. Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d
954, ¶ 14. Because the BTA is responsible for determining factual issues, we will
affirm the BTA’s findings if they are supported by reliable and probative
evidence. Id. But the jurisdictional issues presented in this case raise questions of
law, which we review de novo. Toledo v. Levin, 117 Ohio St.3d 373, 2008-Ohio-
1119, 884 N.E.2d 31, ¶ 26, fn. 3; Akron Centre Plaza, L.L.C. v. Summit Cty. Bd.
of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054, ¶ 10.
1. Abraitis’s propositions of law are moot
{¶ 18} In the present case, Abraitis seeks relief from the BTA’s
jurisdictional ruling based on three propositions of law. First, Abraitis asserts that
“[a] general averment of fraud is adequate in a personal income tax case where
the Appellant has not filed tax returns for the years at issue.” Second, Abraitis
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claims that the BTA decision “undermines state law and cedes a state right to the
federal government.” Third, Abraitis argues that the BTA is bound by Gov.Bar
R. VII, which relates to the unauthorized practice of law.
{¶ 19} To the extent that these propositions identify alleged errors below,
they address substantive or jurisdictional considerations that are moot if we
determine that the tax commissioner never acquired jurisdiction over the
reassessment petitions. Because we hold that the prepayment requirement barred
those petitions, we also hold that the propositions of law are moot. We therefore
decline to address them.
2. R.C. 5747.13(E)(3) required Abraitis to prepay in order to obtain a hearing of
his reassessment petitions, and the failure to prepay bars jurisdiction
a. This court exercises plenary authority to determine the
jurisdiction of the tax tribunals
{¶ 20} In its decision, the BTA issued rulings on two jurisdictional issues:
whether Abraitis was obliged to prepay the assessment to obtain a hearing on his
petitions for reassessment and whether Abraitis had properly raised as objections
before the commissioner the errors he later specified to the BTA. Because
Abraitis was aggrieved by the BTA’s latter ruling and not by the former, his
appeal challenges the latter and remains silent on the former. For his part, the
commissioner responds to Abraitis’s appeal by asserting that the BTA’s
dispositive ruling was correct; beyond that, the commissioner takes the position
that the prepayment issue is not before the court.
{¶ 21} The commissioner is mistaken. To be sure, with regard to
substantive issues presented in tax appeals, we must refrain from ruling on issues
that have not been properly preserved or presented. See Newman v. Levin, 120
Ohio St.3d 127, 2008-Ohio-5202, 896 N.E.2d 995, ¶ 27, 28 (court was
jurisdictionally barred from hearing two issues, one that was not specified in the
notice of appeal to the BTA and one that was not specified in the notice of appeal
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to the court); E. Liverpool v. Columbiana Cty. Budget Comm., 116 Ohio St.3d
1201, 2007-Ohio-5505, 876 N.E.2d 575, ¶ 3 (argument not raised in the party’s
brief is deemed to be abandoned).
{¶ 22} Issues that relate to the jurisdiction of the administrative tribunals
are, however, another matter. Because this court’s jurisdiction over a tax case
derives from the jurisdiction of the tax authorities from which the appeal has been
taken, we have held that we may consider issues that concern the jurisdiction of
those tribunals even if they were not raised in the notice of appeal. See Crown
Communication, Inc. v. Testa, 136 Ohio St.3d 209, 2013-Ohio-3126, 992 N.E.2d
1135, ¶ 27, and cases cited therein.
{¶ 23} Here, the prepayment issue was presented to the BTA through the
commissioner’s motion to dismiss and was ruled on by the BTA. Moreover, R.C.
5747.13(E)(3) sets forth a requirement that qualifies as a jurisdictional
prerequisite: it is a statutory condition for filing a reassessment petition, and it
reflects the “ ‘exceedingly’ strong interest in financial stability and fiscal
planning” on the part of the state. Pengov v. Ohio Dept. of Taxation, 10th Dist.
Franklin No. 06AP-60, 2006-Ohio-3711, ¶ 14 (upholding a prepayment provision
of former R.C. 5747.13(E) against a due-process challenge), quoting McKesson
Corp. v. Div. of Alcoholic Beverages & Tobacco, Dept. of Business Regulation of
Florida, 496 U.S. 18, 37, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990). We have
regarded such requirements as jurisdictional in the past, and we do so here as
well. See W.T. Grant Co. v. Lindley, 50 Ohio St.2d 7, 361 N.E.2d 454 (1977)
(affirming the dismissal of reassessment petitions for lack of jurisdiction based on
the taxpayer’s failure to prepay as required by statute), citing Pre-Fab Transit Co.
v. Bowers, 176 Ohio St. 163, 198 N.E.2d 461 (1964), and Niemeyer v. Collins, 45
Ohio St.2d 63, 341 N.E.2d 847 (1976).
{¶ 24} Therefore, although neither party appealed the BTA’s ruling on the
prepayment issue, we will address that issue. It is particularly appropriate to do
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so because prepayment is a threshold the taxpayer must pass over in order to
obtain any consideration of his petitions on the merits.
b. R.C. 5747.13(E)(3) required Abraitis to prepay the assessment, penalties,
and interest to obtain a hearing on his reassessment petitions
{¶ 25} Ohio law ordinarily affords a taxpayer who has been subject to an
assessment of unpaid income tax the opportunity to contest the assessment before
making payment. To do so, the taxpayer files a petition for reassessment pursuant
to R.C. 5747.13(B) within 60 days after service of the notice of assessment.
{¶ 26} However, the statute does require prepayment in three
circumstances, which are set forth in R.C. 5747.13(E). The first two conditions
that call for prepayment relate to tax returns filed by the taxpayer. The third, R.C.
5747.13(E)(3), pertains to the situation in which no returns have been filed: the
failure to file returns triggers the requirement to prepay the tax, penalties, and
interest in order to have the reassessment petition considered.
{¶ 27} There are two exceptions to the requirement that the assessment be
prepaid when no return has been filed. The first exception applies when the
taxpayer claims a lack of nexus with Ohio for tax purposes. The second applies
when the taxpayer offers to show that a proper computation of his taxes would
lead to a de minimis liability: specifically, prepayment is not necessary when
“[t]he computations required under division (A) of section 5747.01 of the Revised
Code or the application of credits allowed under this chapter has the result that the
person’s tax liability is less than one dollar and one cent.”
{¶ 28} Oddly, the tax commissioner’s final determination makes no
mention of R.C. 5747.13(E)(3) and appears to decide Abraitis’s petitions on the
merits. At the BTA, however, the tax commissioner did argue that Abraitis’s
failure to file returns meant that he was required to prepay in full to invoke the tax
commissioner’s jurisdiction over the petitions for reassessment. The BTA
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rejected this contention because it concluded that Abraitis had filed returns for the
years at issue.
{¶ 29} At the outset, then, we must determine whether Abraitis filed
returns. He did not. To be sure, the commissioner’s final determination implies
that returns were filed by stating that “corrections were made to his 2003, 2004,
2005, 2006, and 2007 individual income tax returns,” thereby inviting the BTA’s
inference that Abraitis had originally filed returns that had contained errors that
the tax commissioner undertook to correct. But the tax commissioner stated in his
motion to dismiss filed at the BTA that “Mr. Abraitis never filed the income tax
returns for the years at issue.”1 In response, Abraitis did not contest this assertion;
to the contrary, Abraitis stated, “[T]here is no evidence that [Abraitis] filed any
tax returns for these years.” In his reply brief to this court, Abraitis characterized
the present case as one in which “the taxpayer has not filed a return.” And at oral
argument, both parties firmly committed to the position that no returns had been
filed. Additionally, the fact that the tax commissioner assessed the statutory
maximum amount of penalty for late filing supports the conclusion that no returns
were filed.
{¶ 30} We conclude that Abraitis did not file returns for the years at
issue.2 As we recently held in a similar context, the taxpayer, as the claimant in
these proceedings, has the burden, when challenged, to establish the factual basis
1. At oral argument before the master commissioner, the tax commissioner’s counsel explained
the final determination’s use of the phrase “corrections were made to * * * individual income tax
returns”: “What it means is, no return was filed; we received information from the federal
government showing federal adjusted gross incomes for that year [sic, those years] and corrections
were made.”
2. Ordinarily it is the BTA’s function as the finder of fact to determine the basic facts relevant to
both jurisdictional and substantive issues. However, the tendency of particular evidence to prove a
particular fact presents an issue of law that we resolve on a de novo basis, see Moore Personnel
Servs., Inc. v. Zaino, 98 Ohio St.3d 337, 2003-Ohio-1089, 784 N.E.2d 1178, ¶ 7, and in this
context the BTA’s interpretation of the significance of the wording in the final determination has
been refuted.
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for the exercise of jurisdiction to consider its claim. Marysville Exempted Village
School Dist. Bd. of Edn. v. Union Cty. Bd. of Revision, 136 Ohio St.3d 146, 2013-
Ohio-3077, 991 N.E.2d 1134, ¶ 10-13. In Marysville, as in this case, we
confronted a record that presented little evidence on which to resolve the
jurisdictional issue presented. Id. at ¶ 9. Nonetheless, we held that the taxpayer’s
admissions permitted the issue to be confronted and resolved. We adopt the same
approach here.
{¶ 31} Turning back to the application of R.C. 5747.13(E)(3), we
conclude that Abraitis, as a nonfiler, was required to prepay the assessment to
obtain a hearing of his petitions for reassessment, unless he showed that his
situation fell within one of the exceptions to the rule.
c. Abraitis has not invoked the exceptions to prepayment
{¶ 32} R.C. 5747.13(E)(3) sets forth two circumstances under which a
taxpayer who has not filed a tax return does not have to prepay an assessment in
order to file a petition for reassessment: (1) if the taxpayer establishes that “the
basis for [the] failure” to file the return is an assertion that he “has no nexus with
this state” or (2) “the basis for [the] failure” to file the return is that “[t]he
computations required under [the income-tax law] or the application of credits
allowed * * * has the result that [his] tax liability is less than one dollar and one
cent.” R.C. 5747.13(E)(3)(a) and (b). As the claimant who filed the petitions for
reassessment, Abraitis must shoulder the burden of demonstrating that he comes
within the exceptions to the general prepayment rule. He has not discharged that
burden.
{¶ 33} First, Abraitis has advanced no argument that he lacks an income-
tax nexus with Ohio. Under R.C. 5747.02, Ohio income tax is “levied on every
individual * * * residing in or earning or receiving income in this state.” Abraitis
has apparently lived in Euclid, Ohio, at all relevant times and, in any event, has
never contended that he did not reside in Ohio during the tax years at issue.
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Although Abraitis contends that the income that forms the basis for the
assessments against him cannot properly be regarded as his income, that is a
contention on the merits of the assessment that does not address Abraitis’s nexus
with the state.
{¶ 34} Second, Abraitis has never offered to show that his failure to file
was justified on the grounds that his actual Ohio adjusted gross income, when
subjected to proper treatment under Ohio’s income-tax law, would have led to a
tax liability of less than $1.01.
{¶ 35} It is true that before the BTA, Abraitis argued that the particular
income attributed to him by the tax commissioner’s assessment is not his income
but someone else’s. But the exception cannot be applied in this case, because
Abraitis has never presented an argument why, consistent with R.C.
5747.13(E)(3)(b), “[t]he computations required” under the income-tax law or the
“application of credits allowed” by the law would have the “result that
[Abraitis’s] tax liability is less than one dollar and one cent” for the tax years at
issue. His reassessment petition advanced nothing but tax-protester contentions
that were devoid of merit. Neither before the tax commissioner nor on appeal at
the BTA did Abraitis offer to show what his Ohio tax liability was for the tax
years at issue, given the nature and sources of his income.
{¶ 36} We recognize that R.C. 5747.13(E)(3) places a burden of
recordkeeping on an Ohio resident taxpayer who decides not to file an Ohio tax
return: when an assessment is issued against him, he can avoid prepayment only
if he can prove that he was justified in not filing a return in accordance with R.C.
5747.13(E)(3)(b). But the requirement is not unduly onerous. The prepayment
provision generally parallels R.C. 5747.08, which requires a taxpayer to file a
return unless “the total credits allowed” equal or exceed the tax liability duly
computed under the income-tax code. Generally speaking, a taxpayer with tax
nexus in Ohio is in one of two situations: either he files a return or he does not,
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and if he does file, the state is limited to a four-year period in which to issue
assessments pursuant to R.C. 5747.13(A). If he does not file, the state is limited
to the general ten-year limitation period pursuant to R.C. 5703.58(A), and during
that period, the taxpayer must be prepared to justify his failure to file.
{¶ 37} R.C. 5747.13(E)(3) is designed to prevent tax protesters who
refuse to file returns from postponing the payment of their liabilities by advancing
baseless contentions, and we conclude that the statute applies in this case. It
follows that Abraitis’s petitions should have been dismissed by the tax
commissioner for failure to prepay in full.
3. The issue of Abraitis’s failing to raise objections
before the tax commissioner is moot
{¶ 38} Because we have disposed of this matter on the prepayment issue,
we need not address the merits of the BTA’s ruling on the question whether
Abraitis’s failure to raise objections in the reassessment petitions barred his
raising those issues at the BTA. In making its ruling on this issue, the BTA
applied CNG Dev. Co. v. Limbach, 63 Ohio St.3d 28, 32, 584 N.E.2d 1180(1992), a case addressing sales- and use-tax assessments, along with Am. Fiber
Sys. v. Levin, 125 Ohio St.3d 374, 2010-Ohio-1468, 928 N.E.2d 695, a case
addressing public-utility personal-property-tax assessments. We have not,
however, applied the CNG or Am. Fiber holding to income-tax assessments
before, and we decline the invitation to do so in a context in which the
prepayment issue furnishes a ground that fully disposes of the case.
4. Two additional jurisdictional objections have not been substantiated
{¶ 39} In addition to the prepayment issue and the failure-to-object issue,
the parties have suggested two other issues that might affect jurisdiction over the
subject matter.
{¶ 40} Abraitis asserts that the tax commissioner failed to serve him with
the final determination by certified mail, as required by R.C. 5703.37. For his
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part, the tax commissioner suggested in a footnote in his brief, without actually
asserting the point, that Abraitis may not have timely appealed to the BTA.
{¶ 41} As to the certified-mail point: Although Abraitis did mention
before the BTA that the tax department did not receive the return receipt from a
putative certified mailing, Abraitis did not argue that the final determination
should be regarded as invalid on the grounds that the certified mailing never
occurred. The case law establishes that a method-of-service objection belongs to
a very limited category of jurisdictional issues that can be waived when not raised
before the BTA; it has apparently been waived here. See Colonial Village, Ltd. v.
Washington Cty. Bd. of Revision, 114 Ohio St.3d 493, 2007-Ohio-4641, 873
N.E.2d 298, ¶ 14.
{¶ 42} As for the timely filing issue: Abraitis had the obligation to file his
appeal to the BTA “within sixty days after service of the notice of the * * *
determination * * * has been given.” R.C. 5717.02(B). The timeliness of
Abraitis’s BTA appeal cannot be determined without establishing the date
Abraitis was served, and the tax commissioner’s failure to fully assert the flaw
and prove the time of service leads us to disregard the timeliness issue. See
Wycuff v. Fotomat Corp., 38 Ohio St.2d 196, 197, 311 N.E.2d 657 (1974) (when
the issue of the timeliness of appeal has been raised, the “burden of showing when
the rehearing decision of the administrator was mailed [is] on the public agency”);
Proctor v. Giles, 61 Ohio St.2d 211, 213, 400 N.E.2d 393 (1980) (articulating the
same principle in a different context). We also reiterate our admonition that
litigants should regard themselves as under an affirmative duty when “a
significant jurisdictional issue is raised” to “state the facts, as they believe them,
and to present evidence in support of their material allegations.” Colonial Village
at ¶ 6.3
3. In her brief, Abraitis’s counsel refers to her client’s mental illness, to which she attributes some
of his incomprehensible filings. Later, the brief faults the tax department for having “little regard
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Conclusion
{¶ 43} For the foregoing reasons, Abraitis’s reassessment petitions should
have been dismissed for failure to prepay pursuant to R.C. 5747.13(E)(3). The
BTA’s contrary ruling is hereby reversed, and the remainder of the BTA’s
decision is vacated. The cause is remanded to the tax commissioner with
instructions that the petitions be dismissed for lack of jurisdiction.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
____________________
Catherine M. Brady, for appellant.
Michael DeWine, Attorney General, and Daniel W. Fausey and Melissa
W. Baldwin, Assistant Attorneys General, for appellee.
________________________
for whether a taxpayer is either elderly or a disabled adult, or both” and, in passing, refers to the
Americans with Disabilities Act. But Abraitis makes no formal argument that an impaired state of
mind excuses him from the statutory requirement at issue in this case. As a result, that argument
has been waived. E. Liverpool, 116 Ohio St.3d 1201, 2007-Ohio-5505, 876 N.E.2d 575, ¶ 3;
accord Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124 Ohio St.3d 284, 2009-Ohio-6764, 921
N.E.2d 1038, ¶ 53 (asserted defect effectively waived when the appellant failed to state in
argument form “whether the relevant case law, applied to the facts of this case, justifies a decision
in [the appellant’s] favor”).
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