DocketNumber: No. 88AP-231.
Citation Numbers: 573 N.E.2d 131, 61 Ohio App. 3d 461
Judges: WHITESIDE, Presiding Judge.
Filed Date: 12/20/1988
Status: Precedential
Modified Date: 1/13/2023
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 463
This is an appeal by appellant, Erwin W. Stines, from a decision of the Board of Tax Appeals. Appellant contends that the decision is unreasonable and unlawful. Although our decision in Neuwirth v. Bowers (1962),
R.C.
"The proceeding to obtain a reversal, vacation, or modification of a decision of the board of tax appeals shall be by appeal to the supreme court or the court of appeals for the county in which the property taxed is situate or in which thetaxpayer resides. If the taxpayer is a corporation, then the proceeding to obtain such reversal, vacation, or modification shall be by appeal to the supreme court or to the court of appeals for the county in which the property taxed is situate, or the county of residence of the agent for service of process, tax notices, or demands, or the county in which the corporation has its principal place of business. In all other instances, theproceeding to obtain such reversal, vacation, or modificationshall be by appeal to the court of appeals for Franklin county.
"Appeals from decisions of the board determining appeals from decisions of county boards of revision may be instituted by any of the persons who were parties to the appeal before the board of tax appeals, by the person in whose name the property involved in the appeal is listed or sought to be listed, if such person was not a party to the appeal before the board of tax appeals * * *. *Page 464
"Appeals from decisions of the board of tax appeals determining appeals from final determinations by the tax commissioner of any preliminary, amended, or final tax assessments, reassessments, valuations, determinations, findings, computations, or orders made by the commissioner may be instituted by any of the persons who were parties to the appeal or application before the board, by the person in whose name the property is listed or sought to be listed, if the decision appealed from determines the valuation or liability of property for taxation and if any such person was not a party to the appeal or application before the board * * *.
"Appeals from decisions of the board upon all other appealsor applications filed with and determined by the board may be instituted by any of the persons who were parties to such appeal or application before the board * * *.
"Such appeals shall be taken within thirty days after the date of entry of the decision of the board * * * by the filing of appellant of a notice of appeal with the court to which the appeal is taken and the board. * * * The court in which notice of appeal is first filed shall have exclusive jurisdiction of the appeal.
"* * *
"* * * The `taxpayer' includes any person required to returnany property for taxation." (Emphasis added.)
A careful reading and analysis of R.C.
Here, appellant seeks a refund of an amount of taxes he paid to an automobile dealer for the purchase of an automobile, since the sale has been rescinded, and therefore, no tax is due upon such sale. The sales tax is an excise tax. As such, it is not a property tax, i.e., a tax on property, but instead an excise tax, i.e., a tax on the transaction itself. Since there is no tax on property involved, there can be no person required to return property for taxation and, thus, no "taxpayer" to file an appeal.
In determining the correct construction of a statute, we must be guided by R.C.
Accordingly, we must presume that the General Assembly intended that meaning be given to the last sentence of the first paragraph of R.C.
As stated above, the next-to-last paragraph of R.C.
R.C.
Arguably, if the word "taxpayer" were stretched beyond its clear meaning as defined in the statute itself, the last sentence of the first paragraph of R.C.
The correct interpretation of R.C.
This conclusion is bolstered by the legislative history of R.C.
"[O]r the court of appeals for the county in which the property taxed is situate or in which the taxpayer resides. * * * In all other instances, the proceeding to obtain such reversal, vacation, or modification shall be by appeal to the court of appeals for Franklin county.
"* * *
"* * * The court in which notice of appeal is first filed shall have exclusive jurisdiction of the appeal.
"* * *
"* * * The `taxpayer' includes any person required to return any property for taxation."
Hence, the definition of "taxpayer" contained in the next-to-last paragraph of R.C.
The word "taxpayer" occurs only on three occasions other than in the definition sentence itself. The first is in the phrase "in which the taxpayer resides" added to the first sentence of R.C.
Accordingly, the definition of the word "taxpayer" set forth in R.C.
We acknowledge that this court erred in 1962 by misinterpreting R.C.
The basic merit issue involves sales tax paid with respect to the purchase of an automobile, in a situation where the sale was later rescinded. Appellant seeks a refund of the sales tax paid on the rescinded transaction (less sales tax due on an interim rental of the automobile).
On December 30, 1981, appellant purchased a 1982 model automobile for $19,577.59, and paid $1,175 Ohio sales tax. The automobile proved to be "lemon." As a result, the matter was referred to arbitration and it was determined that the sale should be rescinded, and the manufacturer was to "buy back" the automobile for the full original purchase price of $19,577.59 with appellant to pay a mileage charge for use of the "lemon" automobile in the interim. The effect was that the sale was rescinded and a rental substituted for the period that appellant possessed and used the automobile. Appellant recognizes that the rental is a taxable transaction and seeks a refund only of the difference in the amount of $1,096.66.
Appellee contends that a refund should not be made because R.C.
"The tax commissioner shall refund to vendors the amount of taxes paid illegally or erroneously or paid on any illegal or erroneous assessment where the vendor has not reimbursed himself from the consumer. When such illegal or erroneous payment or assessment was not paid to a vendor but was paid by the consumer directly to the treasurer of state, or his agent, he shall refund to the consumer. When such refund is granted for payment of an illegal or erroneous assessment issued by the department, such refund shall include interest thereon as provided by section
Appellee also contends that appellant, as the consumer, has no standing to seek the refund or to appeal to this court. However, R.C.
However, appellee points out that the vendor-dealer filed the initial application for refund. Nevertheless, appellee not only participated in the proceedings before the Tax Commissioner, but also appealed the decision of the Tax Commissioner to the Board of Tax Appeals. Since appellant was the party-appellant before the board, it necessarily follows that he is the proper appellant in this court in an appeal from the order of the board, which made no finding that appellant's appeal to it was improper. Since appellee has not appealed the board's order, no further issue with respect thereto is before us except as raised by appellant.
The Board of Tax Appeals denied a refund based upon an assumption that two sales of the automobile were involved, one by the dealer to appellant and the second by appellant to the manufacturer, albeit the same purchase price. In its findings, the board stated that "the original sale was not rescinded" and "a third party interceded and agreed to purchase the automobile." These are incorrect. Although appellant has not clearly presented the issue, it appears that appellant revoked his acceptance of the automobile and *Page 469 sought refund of his purchase price. The automobile was purchased in December 1981 and returned to the dealer for repair many times and ultimately appellant surrendered possession. Subsequently, he sought to use an arbitration procedure to obtain a refund of his purchase price. He, by an unfortunate choice of language, has referred to the arbitration order as aborting the sale. Regardless, however, the sale itself was rescinded, whether as a result of appellant's action or as a result of the arbitration. This was not a case of a resale of the automobile to the manufacturer but, instead, a recession of the sale necessitating a return of the automobile and a refund of the purchase price.
The result does not vary despite the fact that the manufacturer, rather than the vendor, consummated the final transaction. The manufacturer and vendor elected to have adjustments made directly by the manufacturer rather than have the vendor reimburse the purchaser and the manufacturer in turn reimburse the vendor. This is not a case involving two separate transactions and two sales. Rather, it involves arbitration of a dispute which resulted in a rescission of the sale and a return to status quo, the dealer having apparently special-ordered the vehicle from the manufacturer for appellant.
Accordingly, the assignment of error is sustained, the decision of the Board of Tax Appeals is reversed, and this cause is remanded to the board for further proceedings in accordance with law consistent with this opinion.
Judgment reversedand cause remanded.
BOWMAN and FAIN, JJ., concur.
MIKE FAIN, J., of the Second Appellate District, sitting by assignment. *Page 470