Grandview Raceway/Northfield Park Associates v. Limbach , 47 Ohio St. 3d 57 ( 1989 )

Per Curiam.

Under R.C. 3769.08, a race track permit holder may conduct wagering, including wagering on simulcasted races. R.C. 3769.08(C) levies the relevant tax on wagering:

“At the close of each racing day each permit holder authorized to conduct harness * * * racing, out of the amount retained that day by the permit holder, shall pay by check, draft, or money order, to the tax commissioner, as a tax, one-half of one percent of all monies wagered on that racing day to be paid into the Ohio fairs fund. In addition, harness racing permit holders shall pay to the tax commissioner, as a tax, five-eighths of one percent of all monies wagered on that racing day to be paid into the Ohio standardbred development fund * * *. Out of the balance of the amount retained on that day as commission the harness * * * track permit holder shall pay as a tax:

“(1) One percent of the first two hundred thousand dollars wagered, or any part thereof;

“(2) Two percent of the next one hundred thousand dollars wagered, or any part thereof;

“(3) Three percent of the next one hundred thousand dollars wagered, or any part thereof;

“(4) Four percent of all sums over four hundred thousand dollars wagered. * * *”

R.C. 3769.089 provides for electronically televising simulcasted horse races at race tracks and for wagering on these races. The statute also provides:

“* * * The monies wagered on each simulcasted horse race on a racing day shall be separated from the monies wagered on other races on that racing day. From the monies wagered on such simulcasted races, each permit holder may retain as a commission the percentage of the amount wagered as specified in section 3769.08 * * * and shall pay, by check, draft, or money order to the state tax commissioner, as a tax, the tax specified in section 3769.08 * * * of the Revised Code * * *. From the tax collected, the tax commissioner shall make the distributions to the respective funds, and in the proper amounts, as required by sections 3769.08 and 3769.087 of the Revised Code, as applicable. From the amount remaining after payment to the tax commissioner, the permit holder shall pay those amounts required to be paid to the racing association which conducted the race and, if the race was conducted outside this state, to the appropriate state regulatory agency of the state where the race was conducted. The remaining amount shall be retained by the permit holder, and thoroughbred permit holders shall use one-half for purse money and retain one-half.”

Appellants argue that R.C. 3769.089 requires that monies received from wagering on simulcasted racing be separated from all other monies for calculating the tax under R.C. 3769.08. Appellee responds that, when R.C. 3769.089 is read together with R.C. 3769.08, monies wagered from all forms of racing are to be combined for calculating the tax. We agree with appellee.

According to R.C. 3769.10, appellee enforces and administers the taxes levied by R.C. 3769.08,3769.081, and 3769.087. Furthermore, R.C. 3769.088 empowers appellee to make an assessment against a permit holder if the permit holder fails to pay the taxes levied by R.C. 3769.08, 3769.081, and 3769.087. Neither R.C. 3769.10 nor 3769.088 mentions R.C. 3769.089 as a section that levies a tax. Thus, R.C. 3769.08 levies the relevant tax, and this tax is, therefore, calculated under R.C. 3769.08. R.C. 3769.089 requires separate accounting for simulcasted races; it further provides that each permit holder shall pay “the tax specified in section 3769.08 * * * of the Revised Code.” Thus, to give effect to the provisions of both R.C. 3769.08 and 3769.089, we conclude that R.C. 3769Í08 requires combining the monies wagered from all forms of racing to calculate the tax.

Accordingly, the BTA’s decision is reasonable and lawful and it is affirmed.

Decision affirmed.

Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown and Resnick, JJ., concur.