City of Columbus Division of Income Tax v. Schneider

Being unable to concur in the conclusion reached by the majority, I must respectfully dissent.

This case is one of construction of an ordinance of the city of Columbus. While I agree with the majority's posture regarding the issue before us, I cannot go as far as the majority in extending to the city the benefits of the ordinance. The ordinance, in the area of withholding taxes, imposes a liability on an officer or employee for failure to file a report of taxes withheld and the code section at issue, C.C. 361.24, states the individual is "personally liable for failure to * * * pay the tax due as required by this section."

The ordinance does not expressly state that an individual is liable for interest and penalty. The fears of internal inconsistency in the administration of tax collections and the possible loss of revenue to the city, as indicated by the majority, are not, in my view, sufficient for us to enlarge by judicial interpretation the wording of the ordinance. The state, in R.C. 5747.07, has codified a policy relating to an employer's duty to withhold taxes and the impact of tax liability upon a sale of a business. In R.C. 5747.07(G), the following wording appears: "* * * he shall be personally liable for the payment of the taxes, interest, and penalties accrued and unpaid * * *." It is obvious in this instance the legislature has, by express terms, imposed the obligations of penalty and interest charges. In the case before us, the city has failed to do this.

I concur with the majority that the case cited by appellant,First Natl. Bank in Palm Beach v. United States (C.A.5, 1979),591 F.2d 1143, is not directly applicable to the case subjudice. Appellant is however correct in calling to our attentionGulf Oil Corp. v. Kosydar (1975), 44 Ohio St. 2d 208, 73 O.O.2d 507, 339 N.E.2d 820, paragraph one of the syllabus, where the court stated:

"Strict construction of taxing statutes is required, and any doubt must be resolved in favor of the citizen upon whom or the property upon which the burden is sought to be imposed. * * *"

While I do not question the city's ability to impose the liability for paying penalty and interest, it is not for us to amend the deficiencies of the law by adding terms that are not apparent upon reading the ordinance. The amending of the code is a prerogative of city council. While the case involved another type of tax, it is enlightening to note that in the case ofVelez v. Div. of Taxation (1989), 152 A.D.2d 87, 89,547 N.Y.S.2d 444, 446, the court, in denying the government's effort to collect penalties and interest relating to a sales and use tax, stated: "Had the legislature intended to obligate bulk sale purchasers for the penalties and interest as well as the seller's taxes, it was free to draft legislation worded accordingly * * *."

Our decision in this case should be confined to a determination of the meaning of what is expressed in the ordinance and not what we conjecture was intended to be enacted by city council. The ordinance in question does not say that an individual is liable for interest and penalty in addition to taxes.

For the foregoing reasons, the assignment of error should be sustained and the decision of the trial court reversed.