Riss Co. v. Bowers

I concur in the principal opinion. However, I wish to comment more fully on one aspect. In addition to the claimed invalidity of the tax and the claimed exemption, appellant also contends that it is entitled to a certificate of abatement and a refund because it erroneously paid taxes for which it was not liable. Section 5703.05 (B), Revised Code, provides for refund of taxes "illegally or erroneously assessed or collected, or for any other reason overpaid, * * *." The Attorney General concedes that the appellant filed returns and paid taxes on vehicles which it did not own and for which under the then law it was not liable.

Appellant has not "overpaid" by reason of an assessment, since none was made in this case. Nor was the money illegally or erroneously collected in the sense of the Tax Commissioner making a specific finding of Riss' liability on such vehicles or taking action to require payment by Riss. Rather, Riss' apparent claim is that it erroneously paid the money under a mistake of fact or law.

The statute is remedial, and for the benefit of the taxpayer, and it should be liberally interpreted to that end. It does not contain a distinction between errors of fact and errors of law. However, one person may deliberately pay the taxes owed by another, knowing that he himself is not liable. The motivation may be business, self-interest, contractural obligation or gift. But such a payment is clearly not erroneous, nor is it "overpayment" in any sense.

It was incumbent upon appellant to establish the fact of an overpayment. The evidence of payment and the admission of nonliability by the Tax Commissioner and Attorney General would appear to establish a prima facie case for a refund. However, the appellant here introduced evidence which rebutted its own case. While the brief appears to imply that Riss paid the tax, believing itself liable, the testimony of its chief counsel, Ivan Moody, is to the contrary. During the tax periods involved, Riss leased equipment from owners and then subleased the equipment back. Referring to these owner-operator leases, Mr. Moody testified on direct examination as follows:

"Q. Under your lease agreement during the period in question state whether or not it was incumbent upon you to file the axle tax or the highway use tax which was accrued by this equipment. A. Yes, it was.

"Q. So that you actually paid it on behalf of the various individuals or companies that were listed in these exhibits. Is that correct? A. That's correct."

That testimony, together with that quoted by Judge Bryant, destroys any inference of overpayment arising from an error or misunderstanding on Riss' part as to its liability for the tax. A claim for refund must therefore rest on the other assigned errors. Judge Bryant's opinions dispose of those questions.

(No. 6558 — Decided September 19, 1961.) APPEAL: Court of Appeals for Franklin County.

BRYANT, J. This is an appeal from a final order of the Board of Tax Appeals by Riss Company, appellant, herein called Riss. Riss is a foreign corporation with its principal offices in Kansas City, Missouri. It operates a fleet of trucks carrying freight in interstate commerce in a twenty-two-state area.

This appeal has to do with highway use tax assessments as provided in Sections 5728.01 to 5728.15 of the Revised Code. It is one of six appeals by Riss to this court from the Board of Tax Appeals, each bearing a separate case number in this court, each having to do with the highway use tax and each dealing with different audit periods. In the six cases, thirteen quarterly periods are involved, beginning October 1, 1953, to and including December 31, 1956.

Three separate opinions of this court will be used to decide the questions involved in the six cases bearing six numbers, which have been appealed to this court from the Board of Tax Appeals, following board decisions in each case affirming the action of the Tax Commissioner.

Of the thirteen quarterly periods involved in the six appeals, this opinion will deal with two such periods, January 1, 1956, to June 30, 1956, for which periods the Tax Commissioner made assessments against Riss as highway use tax and penalty in the total amount of $108,502.45, following which Riss filed a petition for rehearing (Assessment No. F. 21050) which was denied by the Tax Commissioner and the denial affirmed by the Board of Tax Appeals in its case No. 42,641, which, on appeal to this court, is case No. 6558.

One of the other opinions^* deals with the seven quarterly periods between October 1, 1953, and June 30, 1955. During that time, Riss filed the required reports and made the required payments. It subsequently, in claim No. 2481 filed with the Tax Commissioner on October 24, 1955, asked for refund of $233,229.83, which claim was rejected by the commissioner and his action was affirmed in case No. 42,840 before the board, which, on appeal to this court, is case No. 6557.

The other separate opinion^* deals with the four quarterly periods which were consolidated for briefing, argument and decision before the Board of Tax Appeals and in briefing in this court, involving in the aggregate assessments totaling $150,229.11, indentified as follows: our number 6555 (Board of Tax Appeals No. 42,605), 3rd quarter 1955; our number 6554 (Board of Tax Appeals No. 42,606), 4th quarter 1955; our number 6553 (Board of Tax Appeals No. 42,607), 3rd quarter 1956; and our number 6552 (Board of Tax Appeals No. 42,608), 4th quarter 1956. During the four quarterly periods just referred to, Riss filed the detailed highway use tax reports required setting forth the number of axles and the mileage traveled in Ohio by each of its vehicles for the quarterly periods involved, but failed and refused to pay any part of the tax.

Again directing our attention to the questions involved in our case number 6558, which is the subject of this opinion, it should be stated that Riss had obtained the necessary highway use permits which are required in case of tractors, commercial cars and other vehicles having more than two axles which are subject to the highway use tax. It should be stated also that during the period covered in this case Riss filed the two quarterly reports, covering the first half of 1956, showing the number of axles and the mileage traveled in such periods in Ohio by each of the vehicles operated by Riss, as required by the Highway Use Tax Law, but failed and refused to pay any part of the tax based upon the use of Ohio highways as disclosed in such reports.

The Highway Use Tax Law requires that the report for each quarterly period must be filed within twenty days after the close of the period and the full amount of the highway use tax shown to be due by such reports must be paid at the time the report is required to be filed.

It is admitted by all concerned that Riss filed complete reports at the times they were due but that it did not pay the tax shown to be due by such reports for the first two quarters of 1956 which are those involved in case number 6558, the subject of this opinion.

On December 3, 1959, the Tax Commissioner, in assessment No. F 21050, determined that for the period from January 1, 1956, through June 30, 1956, the highway use tax owed by Riss was $94,349.96, plus a 15 per cent penalty of $14,152.49, making a total of $108,502.45.

A copy of the assessment, properly attested, was served on Riss through the Secretary of State of Ohio on December 3, 1959, and was actually received by Riss on December 7, 1959. On the face of the assessment under the word, "Important," are set forth detailed instructions with reference to the time limits, instructions as to a petition for reassessment and the furnishing of cash or corporate surety bond, the bond provision reading as follows:

"In addition to the filing of a petition for reassessment the assessee must post a cash or corporate surety bond satisfactory to the commissioner, in the amount of the assessment including penalty, conditioned upon payment of the tax finally determined to be due."

On January 2, 1960, Riss by its counsel filed a petition for reassessment, setting forth its objections in the following language:

"Assessee objects to the tax on the grounds that it is a foreign corporation and that the tax is unconstitutional as it pertains to such company."

The petition was on a form furnished by the Department of Taxation (HUT 41) and at the bottom thereof is set forth a portion of Section 5728.10, Revised Code (127 Ohio Laws, 136), dealing with appeals from assessments and quoting the requirement in this section that the assessee must post "bond satisfactory to the commissioner conditioned upon payment of the tax finally determined to be due."

Although the assessment and penalty totaled $108,502.45 and the assessment notice stated that cash or surety bond satisfactory to the commissioner "in the amount of the assessment including penalty" must be filed, appellant filed neither cash nor surety bond in any amount, but instead appellant's counsel tendered his personal check for $100. It was further indicated that the Tax Commissioner brought the need for a bond to the attention of appellant and that appellant was given a period of time in which to comply, but failed and refused to furnish bond in any amount.

On February 2, 1960, the Tax Commissioner filed a journal entry dismissing the petition for reassessment for the reason that appellant had failed to post the required bond. The entry stated that the assessment became final on January 7, 1960, and that, due to this failure to post cash or surety bond, the commissioner lacked jurisdiction to entertain the petition for reassessment.

On March 3, 1960, Riss appealed to the Board of Tax Appeals from the order of the commissioner denying the petition for reassessment, the notice of appeal setting forth the grounds therefor as follows:

"Such tax assessment, determination or order is erroneous in the following respects:

"(1) Assessee alleges that said assessment is unconstitutional and void in that it is a denial of due process and equal protection of the laws contrary to the Constitutions of the United States and of the state of Ohio.

"(2) Such assessment is invalid because it was made under authority of Section 5728.10, Revised Code, which section is unconstitutional in that it denies to assessee any hearing on the correctness of said assessment without the necessity of posting bond satisfactory to the commissioner, which requirement is unconstitutional in that it is an unreasonable restraint upon the due process of law and fair hearing to which assessee is entitled."

The matter came on for hearing before two attorney examiners of the Board of Tax Appeals, but no evidence of any sort was offered except a professional statement by counsel for Riss reading as follows:

"At the time the petition for reassessment was tendered to the Tax Commissioner or the Tax Commissioner's office, that a check in the amount of $100 of my own personal funds was deposited at the time the petition for reassessment was filed. Subsequently, we were advised, of course, that we would have to file the bond in the full amount which we did not do. There is no question of fact there. We just didn't do it, and the Tax Commissioner subsequently finalized the order on the basis that we had not submitted in the full amount."

In a further statement, counsel for Riss explained his client's position as follows:

"No, it was all handled by me as counsel for Riss and Company. The check was originally tendered with the idea in mind that we would subsequently submit a bond in the full amount, since that was the provision of the law, but a bond was not submitted in the full amount subsequently, and the tax was finalized. The only thing that we are attempting to contest here is whether that provision is constitutional and, secondly, whether it is reasonable for the Tax Commissioner to require a bond in the full amount of any taxpayer; but in this particular instance, of Riss and Company.

"Our position is double to the extent that it is the position of the company, particularly since this assessment actually — the tax accrued in 1956, the first two quarters of 1956, which was far ahead of the actual enactment of the provision with reference to the bond, that the statute is unconstitutional insofar as it is ex post facto to that previous tax return."

On July 19, 1960, the Board of Tax Appeals filed a journal entry stating it was "unable to find that the final order of the Tax Commissioner herein complained of is in any way unreasonable or unlawful" and affirming the commissioner's order.

With reference to the first error assigned, the board overruled the objection stating that the Highway Use Tax Act was held to be constitutional by the Ohio Supreme Court in the case of Geo. F. Alger Co. v. Bowers, Tax Commr., 166 Ohio St. 427, "and that the Supreme Court of the United States refused to disturb said decision."

With reference to the second error assigned, namely, that the assessment was invalid because made under Section 5728.10,supra, which section allegedly denies Riss a hearing on the correctness of the assessment without posting bond, the Board of Tax Appeals also overruled the objection on the authority of the case of American Restaurant Lunch Co. v. Glander, Tax Commr., 147 Ohio St. 147. In the course of its opinion, the board wrote as follows:

"What was said by the Supreme Court with reference to the Board of Tax Appeals, as above noted, applies with equal force to petitions for reassessment which a taxpayer is authorized to file with the Tax Commissioner. Both the Board of Tax Appeals and the Tax Commissioner are creatures of the statute and just as the Board of Tax Appeals acquires jurisdiction to hear and decide on their merits only the appeals which are filed with it in strict conformity with the provisions of Revised Code Section5717.02 (formerly General Code Sec. 5611), so the Tax Commissioner acquires jurisdiction to hear and decide on their merits the petition for highway use tax reassessment which are filed with him in strict conformity with the provisions of Revised Code Section 5728.10.

"Since the appellant failed to file its bond with the Tax Commissioner in an amount satisfactory to that official, it is obvious that the appellant has failed to comply with a mandatory provision of the statute it is attempting to use to secure a review of the assessment."

The board declined to pass upon the constitutionality of Section 5728.10, supra, claiming it lacked jurisdiction so to do under the holding in the case of the S. S. Kresge Co. v.Bowers, Tax Commr., 170 Ohio St. 405. The board then affirmed the order of the Tax Commissioner dismissing the petition for reassessment.

In its appeal from the Board of Tax Appeals to this court, Riss filed the following notice of appeal:

"The appellant, Riss Company, Inc., a nonresident of the state of Ohio, hereby gives notice of appeal from the order of the Board of Tax Appeals in the Department of Taxation of the state of Ohio made under date of July 9, 1960, bearing Case No. 42641 on the records of such board, to the Court of Appeals, Franklin County, Ohio; and a copy of such order is attached hereto as a part of this notice of appeal.

"Said decision and order of the board is erroneous, unlawful, and unreasonable in the following respects:

"(1) Assessee alleges that said assessment is unconstitutional and void in that it is a denial of due process and equal protection of the laws contrary to the Constitutions of the United States and of the state of Ohio.

"(2) Such assessment is invalid because it was made under authority of Section 5728.10, Revised Code, which section is unconstitutional in that it denies to assessee any hearing on the correctness of said assessment without the necessity of posting bond satisfactory to the commissioner, which requirement is unconstitutional in that it is an unreasonable restraint upon the due process of law and fair hearing to which assessee is entitled, and is an unconstitutional grant of legislative authority to the commissioner.

"Wherefore, appellant prays for a determination by the Court of Appeals of the unconstitutionality of Sections 5728.01 to5728.15, inclusive, of the Revised Code of Ohio; that the aforementioned assessment or order of the Tax Commissioner was erroneously and unlawfully made; and that the order of the Board of Tax Appeals is unreasonable and unlawful, and should be set aside." (Emphasis added.)

It will be observed that Riss, in its notice of appeal as filed with the Board of Tax Appeals and with this court on August 18, 1960, states that it is appealing from an order of the board "made under date of July 9, 1960."

The Abstract of Docket of the Board of Tax Appeals, certified to this court by the secretary of the board, discloses no order made by the board on July 9, 1960, with reference to this case. This assumes first rate importance, if the statement in the notice be correct, for the reason that the thirty-day limit for appeals set forth in Section 5717.04 of the Revised Code would be exceeded. This section provides in part as follows:

"Such appeals shall be taken within thirty days after the date of the entry of the decision of the board on the journal of its proceedings, as provided by such section, by the filing by appellant of a notice of appeal with the court to which the appeal is taken and the board. * * *"

As we compute it, the thirty-day period counting from July 9, 1960, expired on August 8, 1960, yet the notices of appeal in this case were not filed until August 18, 1960, or forty days from July 9, 1960.

The copy of the board's journal entry, which was filed in this court by Riss, does not disclose when it was entered by the board, but the copy which was certified to this court by the board bears the date July 19, 1960, and this is the same date appearing in the abstract of the board's docket. No objection on this point has been made on behalf of the Tax Commissioner. It is only on the assumption that the date of July 9, 1960, in the two notices of appeal was a clerical error and that the order referred to was that of July 19, 1960, that this court has any jurisdiction in this appeal.

The first error set forth in the notice of appeal is that the assessment is void as amounting to a denial of due process and the equal protection of the laws as guaranteed in the federal and state Constitutions.

We find ourselves unable to agree with this contention in view of the decision of the Supreme Court of Ohio in the case ofGeo. F. Alger Co. v. Bowers, Tax Commr., supra, (166 Ohio St. 427), in which case the highway use tax was attacked as discriminatory, making unreasonable classifications, impairing interstate commerce and not having a reasonable relationship between the tax and the purpose for which it was created. All these objections were overruled in the Alger case and the court in a Per Curiam opinion, at page 429, said, "It follows that it is a valid exercise of the taxing power."

See, also, Kaplan Trucking Co. v. Bowers, Tax Commr.,168 Ohio St. 141, in which, in a Per Curiam opinion, it is stated at page 143 that:

"The appellant's basic contention is that the constitutional guarantee of equal protection of the laws was violated by the administrative classification of motor vehicle common carriers according to state residency, namely, requiring the Ohio highway use tax to be paid by carriers domiciled in Ohio but not by those domiciled in Michigan or Indiana. However, the appellee Tax Commissioner insists that residency was not the only test but that a second was the place of maintenance and registry of vehicles. He contends that the classification was not unconstitutional or discriminatory among members of the same class in view of the evidence that during the period the reciprocity agreements were in effect the appellant paid Michigan taxes on vehicles which it owned and licensed in Michigan but did not pay the larger Ohio taxes on those vehicles; that it paid no Michigan or Indiana tax on its equipment licensed in Ohio; that all Ohio domiciled competitors of the appellant were likewise required to pay the tax; that Michigan and Indiana carriers were allowed free use of Ohio highways, and Ohio carriers enjoyed a similar privilege in Michigan and Indiana; that the appellee Tax Commissioner was of the opinion that the use tax was not within the purview of the reciprocity agreements but that he was obliged to follow the contrary view of this court; and that the reciprocity agreements were canceled soon after the decision of this court in the Interstate Motor Freight System, case,supra."

The decisions in the cases of the Alger, supra, and KaplanTrucking Co., supra, were carried to the Supreme Court of the United States, which left both unchanged. See, Geo. F. Alger Co. v. Bowers, Tax Commr., 358 U.S. 43, 3 L. Ed. (2d), 43,79 S. Ct., 21 (appeal dismissed), rehearing denied, 358 U.S. 901,3 L. Ed. (2d), 151, 79 S. Ct., 218; and Kaplan Trucking Co. v.Bowers, Tax Commr., 359 U.S. 927, 3 L. Ed. (2d), 629,79 S. Ct., 606 (certiorari denied).

As above noted, the first error claimed by Riss in its notice of appeal to this court consists of claims of a denial of due process and equal protection of the laws, alleged to contravene the Constitutions of the United States and the state of Ohio. In our opinion, the decisions of the Supreme Court of Ohio and the Supreme Court of the United States above referred to fully answer the objections made by Riss and uphold the constitutionality of the statute.

It may be that counsel for Riss concur in this view. Nowhere in the briefs filed on behalf of Riss is there any argument or authority cited in support of the first error claimed in the notice of appeal. The failure to discuss this ground in the briefs amounts to an abandonment of the claim and is in itself a further reason for denying this claimed error.

For the reasons above set forth, the first error assigned by Riss in its notice of appeal to this court is not well taken and must be overruled.

The second and the only other error set forth by Riss in its notice of appeal to this court is the assertion that the assessment here under attack "is invalid because it was made under authority of Section 5728.10, Revised Code." This section is claimed to be unconstitutional because "it denies to assessee [Riss] any hearing on the correctness of said assessment without the necessity of posting bond satisfactory to the commissioner." It is further claimed that the bond requirement "is an unreasonable restraint upon the due process of law and fair hearing," and further that it is "an unconstitutional grant of legislative authority to the commissioner."

In its opening brief filed in this court, Riss sets forth the three questions which are presented to this court for determination in this appeal. The three questions are as follows:

"I. The imposition of the requirement of a bond as a prerequisite for the filing of a petition for reassessment constitutes the enactment and enforcement of retrospective legislation as to this appellant.

"II. The provision for a bond as a prerequisite to the filing of a petition for reassessment subject to the satisfaction of the Tax Commissioner constitutes an unconstitutional delegation of legislative authority.

"III. The provision for the filing of a bond as a prerequisite to a petition for reassessment constitutes an unconstitutional denial of due process of law."

The second error assigned in the notice of appeal appears to contain three grounds why it is claimed that the assessment against Riss is invalid, as follows: (A) Section 5728.10,supra, denies Riss a hearing on the correctness of the assessment unless Riss posts a bond satisfactory to the Tax Commissioner; (B) the requirement for a bond to the satisfaction of the Tax Commissioner "is an unreasonable restraint upon * * * due process of law and fair hearing"; and (C) the requirement to furnish a bond to the satisfaction of the Tax Commissioner "is an unconstitutional grant of legislative authority to the commissioner."

As we see it, grounds "(A)" and "(B)" of the second and final part of the notice of appeal are dealt with in Question III in the brief of appellant, while ground "(C)" appears to be dealt with under Question II in the brief of appellant.

Question I in appellant's brief, as to the claim that the application of the bond requirement found in Section 5728.10,supra, as amended, "constitutes the enactment and enforcement of retrospective legislation," appears not to have been specifically referred to in any part of Riss' notice of appeal. Having been left out of the list of errors complained of, it may be too late to raise it now. But is the bond provision retrospective legislation when applied here? We doubt it.

The assessment involved in this case is for the first quarter (January 1 to March 31) and the second quarter (April 1 to June 30) of 1956, and the quarterly reports were due to be filed (and were filed) on or before twenty days after the close of the quarters, namely, on April 20, 1956, and on July 20, 1956.

Under the Highway Use Tax Law (Section 5728.01 et seq., Revised Code), Riss was required at the time of filing the quarterly returns to pay the full amount of the tax. This it did not do.

Section 5728.10, supra, was amended by the One Hundred Second General Assembly of Ohio by the enactment of Amended Senate Bill No. 207. (See 127 Ohio Laws, 136.) One of the changes made by the amendment just referred to was the requirement that an appellant, at the time of filing a petition objecting to an assessment, "posts bond satisfactory to the commissioner conditioned upon the payment of the tax finally determined to be due." This amendment went into effect on September 5, 1957.

It was not until December 3, 1959, more than two years after the amendment to Section 5728.10, supra, requiring the posting of bond that the assessment was made by the Tax Commissioner. Both in the earlier form of Section 5728.10 (See 125 Ohio Laws, 369, 374), and in the form as amended in 1957, it was required that the petition filed with the Tax Commissioner set forth "with definiteness and particularity the items of said assessment objected to, together with the reasons for such objections."

Section 5717.02 of the Revised Code, relating to appeals from the Tax Commissioner to the Board of Tax Appeals, requires the filing of a notice of appeal which "and shall also specify the errors therein [final determination by the Tax Commissioner] complained of."

Section 5717.04 of the Revised Code, relating to appeals from the Board of Tax Appeals to this court, provides that the notice of appeal "shall set forth the decision of the board appealed from and the errors therein complained of."

What were the items in the assessment made by the Tax Commissioner which Riss objected to "with definiteness and particularity" in its petition filed with the Tax Commissioner, and what were Riss' "reasons for such objections"?

The answer must be found in the twenty-six words contained in Riss' petition filed on January 2, 1960, with the Tax Commissioner and reading as follows:

"Assessee objects to the tax on the grounds that it is a foreign corporation and that the tax is unconstitutional as it pertains to such company."

Earlier in this opinion we have set forth the exact language appearing in the notice of appeal to the Board of Tax Appeals and to this court. Nowhere in any of the notices has reference been made by Riss to its claim or objection that the bond requirement inserted in Section 5728.10, supra, by the 1957 amendment thereof was retroactive or ex post facto in its operation as applied to this case.

As we view it, appellant was under a duty to include this among the errors complained of in its notice of appeal to this court and, having failed to do so, cannot at this time enlarge its appeal by setting forth this claim as one of the questions presented.

As a result, the answer to the first question presented in Riss' brief must be that the provisions of Section 5728.10,supra, as amended, do not operate retrospectively as to Riss in this case.

Question II in Riss' brief and branch "(C)" of the second part of Riss' notice of appeal to this court attack the bond provision of Section 5728.10, supra, as an unconstitutional grant of legislative authority to the Tax Commissioner. The Tax Commissioner required either cash or a surety bond in an amount equal to the assessment and penalty.

The specific wording of the statute is that the taxpayer "posts bond satisfactory to the commissioner conditioned upon payment of the tax finally determined to be due." The condition or event which matures the bond obligation is nonpayment of the amount finally found due. This cannot exceed the Tax Commissioner's assessment. Read in the context of the statute, the provision imposes the implicit limitation that the amount of the bond cannot exceed the amount of the assessment determined by the Tax Commissioner. The word "satisfactory" refers to the form, wording, sufficiency of the security and similar details of the bond. The statute, so interpreted, provides adequate standards and is not invalid as an unlawful delegation of power.

The interpretation placed upon the bond provision fixing and also limiting the amount of the bond to the amount of the assessment and penalty appears to be within the express provisions of the statute, places an upper limit upon the amount of the bond and thus, in our opinion, answers satisfactorily the objections made to it.

The third and final question in Riss' brief, that the bond requirement in Section 5728.10, supra, "constitutes an unconstitutional denial of due process of law," apparently is covered by grounds "(A)" and "(B)" of the second part of Riss' notice of appeal.

Appellant contends that the bond requirement unreasonably restricts its opportunity to be heard. On prepayment of taxes or posting of bond as a condition to the right to contest, seeRoss Jewelers, Inc., v. State, 260 Ala. 682, 72 So.2d 402;Ex parte State, ex rel. Attorney General, 252 Ala. 149,39 So.2d 669; Lakefront Realty Corp. v. Lorenz, Treas., 19 Ill.2d 415, 167 N.E.2d 236; Old Colony Rd. Co. v. Assessorsof Boston (1941), 309 Mass. 439, 35 N.E.2d 246. Cf. Johnson v. Diefendorf (1936), 56 Idaho 620, 57 P.2d 1068. The tax here is payable quarterly. It is not a payment in advance, but rather covers the preceding quarter. On its face, we do not believe it is so harsh a burden as to be unconstitutional. There being no evidence of record that, as applied to the appellant, it unreasonably restricts the opportunity to be heard, we express no opinion on that possibility.

As heretofore pointed out, after the assessment by the Tax Commissioner a petition was filed which bore the words, "Petition for Reassessment." Even if the Tax Commissioner had completely waived the bond requirement, he would have been compelled to disallow the petition. The only ground in this petition was that Riss was a foreign corporation and hence it was allegedely unconstitutional to impose the highway use tax upon it. Under the law established by the case of Eastern Express, Inc., v.Bowers, Tax Commr., 170 Ohio St. 345, decided by the Supreme Court of Ohio on February 24, 1960, involving an Indiana corporation, there are numerous circumstances in which foreign corporations are subject to this tax. See, also, Kaplan TruckingCo. v. Bowers, Tax Commr., supra (168 Ohio St. 141), which makes reference to the cancellation of the reciprocity agreements between Ohio and other states.

As we view the record in this case, Riss never had disputed any of the facts or figures involved nor has it sought to introduce any additional facts or figures into the record. Its objections have been based upon legal or constitutional considerations.

For the reasons above set forth, the errors complained of by Riss in the decision of the Board of Tax Appeals are not well taken and must be overruled, the decision and final order of the Board of Tax Appeals is hereby affirmed at the costs of appellant.

Decision affirmed.

DUFFEY, P. J., concurs.

DUFFY, J., dissents.

^* See footnote, page 429.