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H. B. No. 138 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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Representatives McClain, Letson
A BILL
To amend sections 5703.02, 5717.01, 5717.011,
5717.02, and 5717.04 and to enact sections
5703.021 and 5717.031 of the Revised Code to make
changes to the law governing the Board of Tax
Appeals, including authorizing a small claims
division within the Board, requiring the Board to
institute measures to manage certain appeals,
requiring the Board to receive notices of appeal
and statutory transcripts electronically,
providing pleading standards for appeals to the
Board, granting the Board authority to grant
summary judgments and consider motions, vesting
hearing examiners with the authority to determine
credibility of witnesses and issue statements of
fact and conclusions of law separately, and
authorizing the Board to require parties to engage
in mediation, and to authorize the Tax
Commissioner to expedite and issue a final
determination for residential property value
appeals with written consent of the parties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 5703.02, 5717.01, 5717.011, 5717.02,
and 5717.04 be amended and sections 5703.021 and 5717.031 of the
Revised Code be enacted to read as follows:
Sec. 5703.02. There is hereby created the board of tax
appeals, which shall exercise the following powers and perform the
following duties:
(A) Exercise the authority provided by law to hear and
determine all appeals of questions of law and fact arising under
the tax laws of this state in appeals from decisions, orders,
determinations, or actions of any tax administrative agency
established by the law of this state, including but not limited to
appeals from:
(1) Actions of county budget commissions;
(2) Decisions of county boards of revision;
(3) Actions of any assessing officer or other public official
under the tax laws of this state;
(4) Final determinations by the tax commissioner of any
preliminary, amended, or final tax assessments, reassessments,
valuations, determinations, findings, computations, or orders made
by him the tax commissioner;
(5) Adoption and promulgation of rules of the tax
commissioner.
(B) Appoint a secretary of the board of tax appeals, who
shall serve in the unclassified civil service at the pleasure of
the board, and any other employees as are necessary in the
exercise of the powers and the performance of the duties and
functions that the board is by law authorized and required to
exercise, and prescribe the duties of all employees, and to fix
their compensation as provided by law;
(C) Maintain a journal, which shall be open to public
inspection and in which the secretary shall keep a record of all
of the proceedings and the vote of each of its members upon every
action taken by it;
(D) Adopt and promulgate, in the manner provided by section
5703.14 of the Revised Code, and enforce all rules relating to the
procedure of the board in hearing appeals it has the authority or
duty to hear, and to the procedure of officers or employees whom
the board may appoint; provided that section 5703.13 of the
Revised Code shall apply to and govern the procedure of the board.
Such rules shall include, but need not be limited to, the
following:
(1) Rules governing the creation and implementation of a
mediation program, including procedures for requesting, requiring
participation in, objecting to, and conducting a mediation;
(2) A requirement that the tax commissioner, county boards of
revision, and municipal boards of appeal created under section
718.11 of the Revised Code electronically file any transcript
required to be filed with the board of tax appeals, and
instructions and procedures for the electronic filing of such
transcripts.
Sec. 5703.021. (A) There is hereby established a small claims
division of the board of tax appeals.
(B) The small claims division shall have jurisdiction over
the following:
(1) Appeals commenced under section 5717.01 of the Revised
Code in which the property at issue qualifies for the partial tax
exemption described in section 319.302 of the Revised Code; or
(2) Appeals commenced under section 5717.011 or 5717.02 of
the Revised Code when the amount in controversy claimed by the
taxpayer does not exceed ten thousand dollars exclusive of
interest and penalty. The board by rule may modify the
jurisdictional dollar threshold for cases qualifying for the small
claims division.
(C) Notwithstanding division (B) of this section, the board
shall reassign an appeal initially assigned to the small claims
division to the regular docket upon request of a party or when the
appeal presents an issue of public or great general interest or
presents a constitutional issue, or when the board determines that
the appeal does not meet the requirements of division (B) of this
section.
(D) The board may reassign to the small claims docket any
appeal originally assigned to the regular docket with the written
consent of all the parties.
(E) The board shall adopt rules to implement procedures to
provide informal review of the taxpayers' appeals in the small
claims division, which may include telephonic hearings.
(F) A decision or order of the small claims division shall be
conclusive as to all parties and may not be appealed, and shall be
recorded in the journal required by division (C) of section
5703.02 of the Revised Code, but such a decision or order shall
not be considered as precedent in any other case, hearing, or
proceeding.
(G) The appearance of an attorney at law licensed to practice
law in this state on behalf of any party to an appeal assigned to
the small claims docket is permitted but not required. A person
other than a natural person, which is a real party in interest as
taxpayer or claimant, or an entity that may participate by
statute, may commence such an appeal or appear through an attorney
at law licensed to practice law in this state. Such an
organization may, through any bona fide officer, partner, member,
trustee, or salaried employee, file and present its claim or
defense in any appeal in the small claims division, provided the
organization does not, in the absence of representation by an
attorney at law licensed to practice law in this state, engage in
cross-examination, argument, or other acts of advocacy. The board
may provide by rule for additional guidelines applicable to
practice before the board.
Sec. 5717.01. An appeal from a decision of a county board of
revision may be taken to the board of tax appeals within thirty
days after notice of the decision of the county board of revision
is mailed as provided in division (A) of section 5715.20 of the
Revised Code. Such an appeal may be taken by the county auditor,
the tax commissioner, or any board, legislative authority, public
official, or taxpayer authorized by section 5715.19 of the Revised
Code to file complaints against valuations or assessments with the
auditor. Such appeal shall be taken by the filing of a notice of
appeal, in person or by certified mail, express mail, facsimile
transmission, electronic transmission using electronic mail, or
by authorized delivery service, with the board of tax appeals and
with the county board of revision. If notice of appeal is filed by
certified mail, express mail, or authorized delivery service as
provided in section 5703.056 of the Revised Code, the date of the
United States postmark placed on the sender's receipt by the
postal service or the date of receipt recorded by the authorized
delivery service shall be treated as the date of filing. If notice
of appeal is filed by facsimile transmission or electronic
transmission using electronic mail, the date and time of
transmission shall be treated as the date of filing. Upon receipt
of such notice of appeal such county board of revision shall by
certified mail notify all persons thereof who were parties to the
proceeding before such county board of revision, and shall file
proof of such notice with the board of tax appeals. The county
board of revision shall thereupon certify to the board of tax
appeals a transcript of the record of the proceedings of the
county board of revision pertaining to the original complaint, and
all evidence offered in connection therewith. Such appeal may be
heard by the board of tax appeals at its offices in Columbus or in
the county where the property is listed for taxation, or the board
of tax appeals may cause its examiners to conduct such hearing and
to report to it their findings for affirmation or rejection. An
appeal may proceed pursuant to section 5703.021 of the Revised
Code in the small claims division if the appeal qualifies under
that section.
The board of tax appeals may order the appeal to be heard on
the record and the evidence certified to it by the county board of
revision, or it may order the hearing of additional evidence, and
it may make such investigation concerning the appeal as it deems
proper.
Sec. 5717.011. (A) As used in this chapter, "tax
administrator" has the same meaning as in section 718.01 of the
Revised Code and "Ohio business gateway" has the same meaning as
in section 718.051 of the Revised Code.
(B) Appeals from a municipal board of appeal created under
section 718.11 of the Revised Code may be taken by the taxpayer or
the tax administrator to the board of tax appeals or may be taken
by the taxpayer or the tax administrator to a court of common
pleas as otherwise provided by law. If the taxpayer or the tax
administrator elects to make an appeal to the board of tax appeals
or court of common pleas, and subject to section 5703.021 of the
Revised Code with respect to small claims proceedings, the appeal
shall be taken by the filing of a notice of appeal with the board
of tax appeals or court of common pleas, the municipal board of
appeal, and the opposing party. The notice of appeal shall be
filed within sixty days after the day the appellant receives
notice of the decision issued under section 718.11 of the Revised
Code. The notice of appeal may be filed in person or by certified
mail, express mail, or facsimile transmission, electronic
transmission using electronic mail, by authorized delivery service
as provided in section 5703.056 of the Revised Code or, in the
case of an appeal filed with the board of tax appeals,
electronically through the Ohio business gateway. If the notice of
appeal is filed by certified mail, express mail, or authorized
delivery service as provided in section 5703.056 of the Revised
Code, the date of the United States postmark placed on the
sender's receipt by the postal service or the date of receipt
recorded by the authorized delivery service shall be treated as
the date of filing. If notice of appeal is filed by facsimile
transmission, electronic transmission using electronic mail, or
electronically through the Ohio business gateway, the date and
time of the transmission shall be treated as the date of filing.
The notice of appeal shall have attached thereto and incorporated
therein by reference a true copy of the decision issued under
section 718.11 of the Revised Code and shall specify the errors
therein complained of, but failure to attach a copy of such notice
and incorporate it by reference in the notice of appeal does not
invalidate the appeal.
(C) A notice of appeal for an appeal filed with the board of
tax appeals shall contain a short and plain statement of the
claimed error showing that the appellant is entitled to relief and
a demand for the relief to which the appellant claims to be
entitled. An appellant may amend the notice of appeal once as a
matter of course within sixty days after the appellant receives
notice of the certification of the transcript. Otherwise, an
appellant may amend the notice of appeal only after receiving
leave of the board or the written consent of each adverse party.
Leave of the board shall be freely given when justice so requires.
(D) Upon the filing of a notice of appeal with the board of
tax appeals, the municipal board of appeal shall certify to the
board of tax appeals a transcript of the record of the proceedings
before it, together with all evidence considered by it in
connection therewith. The secretary of the board of tax appeals,
by certified mail or electronic mail, shall notify all parties of
record of the filing of the transcript. Such appeals may be heard
by the board at its office in Columbus or in the county where the
appellant resides, or it may cause its examiners to conduct such
hearings and to report to it their findings for affirmation or
rejection. The board may order the appeal to be heard upon the
record and the evidence certified to it by the administrator, but
upon the application of any interested party the board shall order
the hearing of additional evidence, and the board may make such
investigation concerning the appeal as it considers proper. An
appeal may proceed pursuant to section 5703.021 of the Revised
Code in the small claims division if the appeals qualifies under
that section.
(D)(E) If an issue being appealed under this section is
addressed in a municipal corporation's ordinance or regulation,
the tax administrator, upon the request of the board of tax
appeals, shall provide a copy of the ordinance or regulation to
the board of tax appeals.
Sec. 5717.02. (A) Except as otherwise provided by law,
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 taken to the board of tax appeals by
the taxpayer, by the person to whom notice of the tax assessment,
reassessment, valuation, determination, finding, computation, or
order by the commissioner is required by law to be given, by the
director of budget and management if the revenues affected by that
decision would accrue primarily to the state treasury, or by the
county auditors of the counties to the undivided general tax funds
of which the revenues affected by that decision would primarily
accrue. Appeals from the redetermination by the director of
development services under division (B) of section 5709.64 or
division (A) of section 5709.66 of the Revised Code may be taken
to the board of tax appeals by the enterprise to which notice of
the redetermination is required by law to be given. Appeals from a
decision of the tax commissioner or county auditor concerning an
application for a property tax exemption may be taken to the board
of tax appeals by the applicant or by a school district that filed
a statement concerning that application under division (C) of
section 5715.27 of the Revised Code. Appeals from a
redetermination by the director of job and family services under
section 5733.42 of the Revised Code may be taken by the person to
which the notice of the redetermination is required by law to be
given under that section.
(B) The appeals shall be taken by the filing of a notice of
appeal with the board, and with the tax commissioner if the tax
commissioner's action is the subject of the appeal, with the
county auditor if the county auditor's action is the subject of
the appeal, with the director of development if that director's
action is the subject of the appeal, or with the director of job
and family services if that director's action is the subject of
the appeal. The notice of appeal shall be filed within sixty days
after service of the notice of the tax assessment, reassessment,
valuation, determination, finding, computation, or order by the
commissioner, property tax exemption determination by the
commissioner or the county auditor, or redetermination by the
director has been given as provided in section 5703.37, 5709.64,
5709.66, or 5733.42 of the Revised Code. The notice of appeal may
be filed in person or by certified mail, express mail, or
facsimile transmission, electronic transmission using electronic
mail, by authorized delivery service, or electronically through
the Ohio business gateway. If the notice of appeal is filed by
certified mail, express mail, or authorized delivery service as
provided in section 5703.056 of the Revised Code, the date of the
United States postmark placed on the sender's receipt by the
postal service or the date of receipt recorded by the authorized
delivery service shall be treated as the date of filing. If notice
of appeal is filed by facsimile transmission, electronic
transmission using electronic mail, or electronically through the
Ohio business gateway, the date and time of the transmission shall
be treated as the date of filing. The notice of appeal shall have
attached to it and incorporated in it by reference a true copy of
the notice sent by the commissioner, county auditor, or director
to the taxpayer, enterprise, or other person of the final
determination or redetermination complained of, and shall also
specify the errors therein complained of, but failure to attach a
copy of that notice and to incorporate it by reference in the
notice of appeal does not invalidate the appeal.
(C) A notice of appeal shall contain a short and plain
statement of the claimed error showing that the appellant is
entitled to relief and a demand for the relief to which the
appellant claims to be entitled. An appellant may amend the notice
of appeal once as a matter of course within sixty days after the
appellant receives notice of the certification of the transcript.
Otherwise, an appellant may amend the notice of appeal only after
receiving leave of the board or the written consent of each
adverse party. Leave of the board shall be freely given when
justice so requires.
(D) Upon the filing of a notice of appeal, the secretary of
the board of tax appeals, by certified mail or electronic mail,
shall provide notice of the filing of the appeal to the tax
commissioner, the director of development services, or the
director of job and family services if the commissioner's or
director's action is the subject of the appeal. The tax
commissioner, county auditor, or the director, as appropriate,
shall certify to the board a transcript of the record of the
proceedings before the commissioner, auditor, or director,
together with all evidence considered by the commissioner,
auditor, or director in connection with the proceedings. The
secretary of the board of tax appeals, by certified mail or
electronic mail, shall notify all parties of record of the filing
of the transcript. Those appeals or applications may be heard by
the board at its office in Columbus or in the county where the
appellant resides, or it may cause its examiners to conduct the
hearings and to report to it their findings for affirmation or
rejection.
The board shall institute procedures to control and
manage appeals governed by this section. The procedures shall
include the conduct of discovery such that, upon the filing of the
statutory transcript in an appeal, the board, through its attorney
examiners, shall establish a case management schedule, subject to
section 5703.021 of the Revised Code.
(D)(E) The board may order the appeal to be heard upon the
record and the evidence certified to it by the commissioner,
county auditor, or director, but upon the application of any
interested party the board shall order the hearing of additional
evidence, and it may make an investigation concerning the appeal
that it considers proper.
An appeal may proceed pursuant to
section 5703.021 of the Revised Code in the small claims division
if the appeal qualifies under that section.
(F) As used in this section, "Ohio business gateway" has the
same meaning as in section 718.051 of the Revised Code.
Sec. 5717.031. (A) Upon the motion of any party to an appeal
commenced under section 5717.01, 5717.011, or 5717.02 of the
Revised Code, or upon motion by the board of tax appeals, the
board may grant summary judgment if the moving party shows or the
board finds that there exists no genuine issue of material fact
and the moving party or the party designated by the board is
entitled to judgment as a matter of law. The board may adopt rules
governing the use of motions for summary judgment.
(B)(1) The board of tax appeals may consider and decide
motions, including motions in limine, before the board makes a
decision on any matter.
(2) At the close of a hearing or within ten days thereafter,
a party may make a motion to require the board, if the board
conducted the hearing, or the examiner who conducted the hearing
to make findings of fact and conclusions of law before the board
decides an appeal or before the appeal is submitted to the board
of tax appeals for decision, respectively. The board or examiner
shall send a copy of the board's or examiner's findings of fact
and conclusions of law to the parties.
(3) The board, if the board conducts the hearing, or the
examiner who conducts a hearing shall determine the credibility of
each witness. If an examiner determines the credibility of a
witness, the board shall not change the examiner's determination
absent clear and convincing evidence that the examiner's
determination of the credibility of the witness is incorrect.
Sec. 5717.04. The This section does not apply to any
decision and order of the board made pursuant to section 5703.021
of the Revised Code. Any such decision and order shall be
conclusive upon all parties and may not be appealed.
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 the taxpayer
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, the proceeding to obtain such
reversal, vacation, or modification shall 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, or by the
county auditor of the county in which the property involved in the
appeal is located.
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, by the taxpayer or any other
person to whom the decision of the board appealed from was by law
required to be sent, by the director of budget and management if
the revenue affected by the decision of the board appealed from
would accrue primarily to the state treasury, by the county
auditor of the county to the undivided general tax funds of which
the revenues affected by the decision of the board appealed from
would primarily accrue, or by the tax commissioner.
Appeals from decisions of the board upon all other appeals or
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, by any persons to whom the
decision of the board appealed from was by law required to be
sent, or by any other person to whom the board sent the decision
appealed from, as authorized by section 5717.03 of the Revised
Code.
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. If a timely notice of appeal is filed by a
party, any other party may file a notice of appeal within ten days
of the date on which the first notice of appeal was filed or
within the time otherwise prescribed in this section, whichever is
later. A notice of appeal shall set forth the decision of the
board appealed from and the errors therein complained of. Proof of
the filing of such notice with the board shall be filed with the
court to which the appeal is being taken. The court in which
notice of appeal is first filed shall have exclusive jurisdiction
of the appeal.
In all such appeals the tax commissioner or all persons to
whom the decision of the board appealed from is required by such
section to be sent, other than the appellant, shall be made
appellees. Unless waived, notice of the appeal shall be served
upon all appellees by certified mail. The prosecuting attorney
shall represent the county auditor in any such appeal in which the
auditor is a party.
The board, upon written demand filed by an appellant, shall
within thirty days after the filing of such demand file with the
court to which the appeal is being taken a certified transcript of
the record of the proceedings of the board pertaining to the
decision complained of and the evidence considered by the board in
making such decision.
If upon hearing and consideration of such record and evidence
the court decides that the decision of the board appealed from is
reasonable and lawful it shall affirm the same, but if the court
decides that such decision of the board is unreasonable or
unlawful, the court shall reverse and vacate the decision or
modify it and enter final judgment in accordance with such
modification.
The clerk of the court shall certify the judgment of the
court to the board, which shall certify such judgment to such
public officials or take such other action in connection therewith
as is required to give effect to the decision. The "taxpayer"
includes any person required to return any property for taxation.
Any party to the appeal shall have the right to appeal from
the judgment of the court of appeals on questions of law, as in
other cases.
Section 2. That existing sections 5703.02, 5717.01, 5717.011,
5717.02, and 5717.04 of the Revised Code are hereby repealed.
Section 3. This section applies to any residential property
case that has been appealed from a board of revision and is
docketed before the Board of Tax Appeals. Upon the written consent
of the parties to have the case transferred to the Department of
Taxation, the Tax Commissioner may process such appeals and issue
a determination that is final for all parties. The Commissioner
shall establish a practice and procedure for processing such
cases. Any request by a party for transfer of a case to the
Department of Taxation under this section shall be made within two
years from the effective date of this section. This authority is
granted in conjunction with section 5703.021 of the Revised Code.
Section 4. The amendment by this act of division (D)(2) of
section 5703.02 of the Revised Code takes effect January 1, 2015.
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