ORIGINAL IN THE SUPREME COURT OF

LUWANNA A. DELANEY, GREENE COUNTY AUDITOR

Appellant Case No. 10-0899

Vs.

RICHARD A. LEVIN, On Appeal of Right from the TAX COMMISSIONER OF OHIO Ohio Board of Tax Appeals

And

YSI, INCORPORATED

Appellees

MERIT BRIEF OF APPELLANT LUWANNA A. DELANEY, GREENE COUNTY AUDITOR

Stephen K. Haller (#0009172) Greene County Prosecuting Attorney Elizabeth Ellis (#0074332) Assistant Prosecuting Attorney JUL 19 2010 Susan L. Goldie (#0018439) (COUNSEL OF RECORD) Assistant Prosecuting Attorney CLERK OF COURT 61 Greene Street, Suite 200 SUPREMECOURTOF'OHIO Xenia, OH 45385 (937) 562-5250 Fax No. (937) 562-5107 sgoldieC^a,co_greene.oh.us

COUNSEL FOR APPELLANT LUWANNA A. DELANEY, GREENE COUNTY AUDITOR

Richard Cordray (#0038034) Attorney General of Ohio (#0023141) (COUNSEL OF RECORD) Barton A. Hubbard E Assistant Attorney General

LLtM UF ig019Ri SUPREMIE COidR [ OF OHIO 30 East Broad Street, 25tb Floor Columbus, OH 43215-3428 Telephone: (614) 466-5967 Facsimile: (614) 466-8226 barton.hubbaxd(cr^ohioattorneyp, e neral.gov

COUNSEL FOR APPELLEE RICHARD A. LEVIN, TAX COMMISSIONER

Thomas E. DeBrosse (#0010421) Thompson Hine, LLP 2000 Courthouse Plaza, N.E. 10 West Second Street Dayton, OH 45402 Telephone: (937) 443-3600 Facsimile: (937) 443-6635 tom.debrossekthompsonhine.com

COUNSEL FOR APPELLEE YSI, INCORPORATED TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... vii

STATEMENT OF FACTS ...... 1

ARGUMENT ...... 3

Proposition of Law No. I:

The procedures deHneated in R.C. 5711.26 for redetermina- tions made by the Tax Commissioner, by excluding the County Auditor from participation in those reevaluations, violate the due process rights of the county delineated in Ohio Constitution Article I, Section 16 and the Fifth and Fourteenth Amendments of the Constitution of the United States ...... 3

Proposition of Law No. Ii:

The requirement imposed by the Ohio Board of Tax Appeals on the County Auditor in her Notice of Appeal to state with more specificity the claimed error of the Tax Commissioner or suffer dismissal violated the due process rights of the Fifth and Fourteenth Amendments of the federal Constitution and of the Ohio Constitution Article I, Section 16, where there is no access given to the specific basis upon which the Tax Commissioner bases his decision ...... 8

Proposition of Law No. III:

The Decision and Order issued by the Ohio Board of Tax Appeals on April 20, 2©10, which dismissed Appellant's appeal for failure to more particularly specify error was an abuse of discretion where more specificity was not available to her ...... 9

Proposition of Law No. IV:

The requirement imposed by the Ohio Board of Tax Appeals on the County Auditor to more particularly specify the basis of her appeal effectively eliminates

iii her right to appeal the Final Assessment Certificate of Valuation by the Tax Commissioner granted to her by R.C. 5717.02 where the County Auditor is not privy to the specificity upon which the Tax Commissioner's decision was based ...... 10

Proposition of Law No. V:

The Final Assessment Certificate of Valuation of the Tax Commissioner from which the County Auditor sought to appeal constitutes a taking of the property of the people of Greene County without due process of law, in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States, and in violation of the right of the people of Greene County to protect their property through their statutorily appointed spokesperson, the Greene County Auditor, under Article I, Section 16 of the Constitution of Ohio ...... 11

Proposition of Law No. Vi:

The Decision and Order of the Board of Tax Appeals of April 20,2010 should be reversed, and this Court should Order its decision to be applied retroactively to all eases decided under these statutes where the counties, through their county auditors, were not permitted notice and opportunity to participate in all stages of personal property valuation for taxation thereof, because the procedure for review has been uncon- stitutional ...... 12

CONCLUSION ...... 14

PROOF OF SERVICE ...... 15

APPENDIX ...... A-1

Notice of Appeal to (May 15, 2010) ...... A-1

iv County Return of Taxable Business Property for tax filing Year 2007 filed by YSI, Inc. on June 18, 2007 ...... A-13

Notice to Greene County Auditor from Ohio Department Of Taxation of Application by YSI Incorporated for Final Assessment for personal property tax return year 2007, dated August 3, 2009 ...... A-29

Final Assessment Certificate of Valuation by the Ohio Department of Taxation for YSI hicorporated for personal property tax return year 2007 ...... A-30

Greene County Auditor's record of receipt of Final Assessment Certificate of Valuation and calculation of refund to YSI, Inc ...... A-32

Appellant Greene County Auditor's Notice of Appeal to the Ohio Board of Tax Appeals ...... A-35

Tax Commissioner's Motion to Dismiss Appeal ...... A-41

Appellant's Memorandum Contra Tax Commissioner's Motion to Dismiss Appeal ...... A-45

Appellee YSI, Inc.'s Reply Brief ...... A-49

Appellant's Corrective Reply Brief ...... A-52

April 20,2010 Decision and Order of Board of Tax Appeals dismissing Appellant's Appeal ...... A-54

State v. Bodyke, Supreme Court Case No. 2008-2502, 2010 WL 2219064 (Ohio), 2010-Ohio-2424 (June 3, 2010) ...... A-60

CONSTITUTIONAL PROVISIONS; STATUTES

Constitution of the United States, Fifth Amendment...... A-84

Constitution of the United States, Fourtheenth Amendment ...... A-84

v Ohio Constitution, Section I, Article 16 ...... A-84

R.C. Chapter 5711 ...... A-85

R.C. 5717.02 ...... A-102

R.C. 5717.04 ...... A-103

vi TABLE OF AUTHORITIES

CASES:

Board of Regents of State College v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L.Ed.2d 548 (1972) ...... 6

Castle v. Mason, 91 Ohio St. 296, 110 N.E. 463 (1915) ...... 6

City of East Liverpool v. Columbiana County Budeet Commission, et al., 114 Ohio St.3d 133, 870 N.E.2d 705 (2007) ...... 5,6

Columbus Education Association v. Archuleta, 29 Ohio App.3d 264, 505 N.E.2d 279 (10`h Dist. 1986) ...... 6.10

DeWeese v. Zaino. 100 Ohio St.3d 324, 800 N.E. 2d 1 (2003) ...... 10,11

DiCenzo v. A-Best Products Co., Inc. 120 Ohio St.3d 149, 897 N.E.2d 132 (2008) ...... 13

Goss v. Loyez, 419 U.S. 565, 95 S. Ct. 729,42 L.Ed.2d 725 ...... 6 (1975)

Hocking Valley Ry. Co. v. Public Utilities Commission, 100 Ohio St.321, 126 N.E 397 (1919) ...... 12

Seltzer v. Cuyaho ag coun,ty Dept. of Human Services, 38 Ohio App.3d 121, 528 N.E.2d 573 (1987) ...... 12

Stanton, Pros. Atty. v. State Tax Commission, 114 Ohio St. 658, 151 N.E. 760 (1926) ...... 12

State v. Bodyke, Supreme Court Case No. 2010-2424, 2010 WL 2219064 (June 3, 2010) ...... 7

State v. Thompson, 92 Ohio St.3d 584, 752 N.W.2d 276 (2001) ... 7

Voeller v. Neilston Warehouse Co., 136 Ohio St. 427, 26 N.E.2d 442 (1940) ...... 6,9

Zangerle v. Evatt, 139 Ohio St. 53, 41 N.E.2d 369 (1942) ...... 12

CONSTITUTIONAL PROVISIONS; STATUTES:

vii Constitution of the United States, Fifth Amendment ...... 3,8,14 Constitution of the United States, Fourteenth Amendment ...... 3,8,14 Ohio Constitution, Section 1, Article 16 ...... 3,8,14 R.C. Chapter 5711 ...... 1,3 R.C. 5711.13 ...... 1 R.C. 5711.18 ...... 4,8 R.C. 5711.22 ...... 1,3 R.C. 5711.24 ...... 3 R.C. 5711.26 ...... 3,4,8,14 R.C. 5711.31 ...... 4 R.C. 5711.32(B)(1)(b) ...... 3 R.C. 5717.02 ...... 2,4,5,7,8,9,10,14 R.C. 5717.04 ...... 11,12

viu STATEMENT OF FACTS

In 2006, YSI, Inc. aka YSI, INCORPORATED (hereinafter "YSI, Inc.") was a business with personal property thereof located in Greene County, Ohio. As such, under the version of Ohio Revised Code (hereinafter R.C.) Chapter 5711 then in effect, pertinent portions of which will be referenced hereinafter, YSI, Inc. was obligated to file a personal property tax return for each of those years and to pay tax to Greene County based on the assessed value of that personal property. R.C. Sections 5711.13 and

5711.22.

On June 18, 2007, YSI, Inc.'s personal property tax return was filed with the Greene

County Auditor (Appendix at A- 13), who then delivered it by facsimile to the Ohio

Department of Taxation (Appendix at A-26-28).

Upon application of YSI in August of 2007 (Appendix at A-29), a Final Assessment

Certificate of Valuation was issued by the Ohio Tax Commissioner on October 9, 2009

(Appendix at A-30). In this Final Assessment, which consisted of two pages with unexplained changes in the valuations, those valuations for YSI, Inc's personal property for the 2007 return year were decreased by $42,490.00 from the previous valuation.

Because of the decreases in valuation, and inconformity with the tax computations required under R.C. 5711.22, the Greene County Auditor computed a refund to YSI, Inc. for the 2007 personal property tax year totaling $4,418.06. Due to the fact that personal property taxation payable to counties had all but ended during the redetermination by the

Tax Commissioner, the refund monies had to be paid from Greene County's General

Fund (Appendix at A-32).

1 Pursuant to the provisions of R.C. 5717.02, the Greene County Auditor timely filed an appeal of that Final Assessment Certificate of Valuation to the Board of Tax Appeals on October 27, 2009 (Appendix at A-35). On March 17, 2010, counsel for Appellee Tax

Comniissioner filed a Motion to Dismiss the appeal, asserting that the Board of Tax

Appeals lacked jurisdiction to consider the County Auditor's claims (Appendix at A-41).

Appellant filed a Memorandum Contra (Appendix at A-15). On April 2,2010, YSI, Inc. filed a "Reply" supporting the Tax Comniissioner's motion to dismiss (Appendix at A-

49). [While the Notice of Appeal included copies of the Tax Commissioner's determinations for other years--Appendix at A-35--it is only the Board of Tax Appeals

Decision and Order as to the 2007 tax return year that is being appealed to the Supreme

Court of Ohio].

The Board of Tax Appeals adopted the argument of the Tax Commissioner and dismissed the appeal of the Auditor, finding that her Notice of Appeal lacked specificity as to the basis for the appeal in violation of the requirements of R.C. 5717.02.

(Appendix at A-54).

It is from that dismissal that the Greene County Auditor timely filed her Notice of

Appeal to this Court on May 18, 2010 (Appendix at A-1). On June 15, 2010, the Tax

Commissioner filed his Transcript with the Board of Tax Appeals.

Appellant Luwanna A. Delaney, Greene County Auditor, hereby files her Merit Brief

in support of her appeal.

2 ARGUMENT

Proposition of Law No. I:

The procedures delineated in RC. 5711.26 for redeterminations made by the Tax Commissioner, by excluding the County Auditor from participation in those reevaluations, violate the due process rights of the county delineated in Ohio Constitution Article I, Section 16 and the Fifth and Fourteenth Amendment of the Constitution of the United States.

R.C. Chapter 5711 describes personal property taxation for businesses in Ohio.

Though recent amendments to this method of taxing personal property of businesses have reduced its application, R.C. Chapter 5711 is still applicable to the many appeals. In addition, the Board of'1'ax Appeals is clearly still re-determining old taxable assessments, such as the 2007 taxes involved in this case.

The filing of the tax return with the county auditor is deemed to be the preliminary

assessment of the taxable property contained in that return. R.C. 5711.24. The process

for determination of the tax to be paid involves the application of a specific percentage,

defined in R.C. 5711.22, to the valuation of the personal property. In this case, YSI, Inc.

ultimately used the option defined in R.C. 5711.32(B)(1)(b) to pay the tax determined to

be due at that stage.

On August 3, 2009, the Ohio Department of Taxation notified the Greene County

Auditor that YSI, Inc. had filed an Application for Final Assessment of its personal

property and requested a decrease in the valuation by which tax was owed to Greene

County (Appendix at A-29).

On October 9, 2009, the Ohio Tax Commissioner issued his Final Assessment

Certificate of Valuation for the YSI, Inc. 2007 return, which decreased the valuation

3 (Appendix at A-30) and therefore caused a refund of $4,418.06 to YSI, Inc. from Greene

county. Because the statutory basis for almost all personal property taxation ended prior

to this decrease in valuation, the Auditor had to issue the refund from Greene County's

General Fund (Appendix at A-32).

Given the statutory scheme, the first issue raised by the Appellant arises with the

statute describing the process of redetermination applicable to this case--R.C. 5711.26.

Under that statute, when the Tax Commissioner makes his Final Determination he "may

utilize all facts or information he possesses." If the assessment is appealed, the

Commissioner issues his Final Determination and notifies the appropriate authorities of

the amount. There is no requirement that he share his reasoning or basis for

determination or the "facts or information he possesses" with the Auditor. In fact, the

"facts" are hidden from scrutiny under R.C. 5711.18:

Information about the business, property, or transactions or any taxpayer obtained by the commissioner for the purpose of adopting or modifying any such method [of determining rue value of personal property] shall not be subject to discovery or disclosure.

(See the last sentence of that statute.) Furthermore, the following wording appears at

R.C. 5711.26 at paragraph 6:

The assessment certificates mentioned in this section, and the copies thereof, shall not be open to public inspection.

The decision of the tax commissioner is described as "final" (R.C. 5711.31 at

paragraph 5) and appealable R.C. 5717.02. County auditors "of the counties to the

undivided general tax funds of which the revenues affected by such decision would

primarily accrue" have a statutory right to appeal the Final Assessment of Valuation of

4 the Tax Commissioner (R.C. 5717.02, first paragraph).

However, an appellant "must specify the errors" alleged in the decisions of the tax commissioner. (R.C. 5717.02, paragraph 2.) If the tax commissioner is not required to

include the county auditor in any of the fact-fmding or hearings leading up to that Final

Deterniination and has no duty to share with the auditor the documentation resulting in

that corrected valuation, the requirement of "specificity" makes it impossible for a county

auditor to survive a Motion to Dismiss her appeal to the Board of Tax Appeals, as absent

a detailed discussion in the tax commissioner's final determination, her Notice of Appeal

will always lack specificity. This deprivation of her statutory right to appeal constitutes a

due process violation which she hereby asserts in this appeal.

A county auditor's right to appeal is important to protect the county he or she speaks

for from suffering a "direct injury to its own treasury" by virtue of the change in the

valuation of taxable personal property. City of East Liverpool v . Columbiana Countv

Budget Commission, et al., 114 Ohio St.3d 133, 870 N.E. 2d 705 (2007). In this East

Liverpool case, this Court examined and recognized the importance of the City of East

Liverpool's obligation to protect its funding for the citizens of that community. Like that

City, if a county auditor cannot be heard, the county "is deprived of its voice" in the

determining the nature of the alternative method of valuation in that the county "may

have less money to farnish services to its citizens."

In addition, this Court specifically clarified in the East Livemool as recently as three

years ago that:

5 While as a general rule a political subdivision lacks standing to assert the rights of a third party, an exception exists where a political subdivision (1) suffers its own injury in fact; (2) possesses a sufficiently close relationship with the third party; and (3) shows some hindrance that stands in the way of the third party seeking relief

Id., 114 Ohio St.3d 133. In this case involving Greene County, the County, through its

Auditor, has (1) suffered its own injury in fact (to its treasury--the same injury as East

Liverpool suffered); (2) possesses a sufficiently close relationship with the third party

(the citizens--the same relationship that existed for East Liberty): and (3) shows a hindrance that stands in the way of a third party seeking relief (the fact that the citizens of the county are not named as a party to the appeal).

A violation of Due Process under the Ohio and federal Constitutions can be shown where an appellant shows that it has been deprived of a property interest cognizable of protection under the constitutions. Board of Regents of State Colle¢e v. Roth, 408 U.S.

564, 92 S. Ct. 2701, 33 L.Ed.2d 548 (1972), Columbus Education Association v.

Archule 29 Ohio App.3d 264, 505 N.E.2d 279 (100' Dist. 1986); Goss v. Lopez, 419

U.S. 565, 95 S. Ct. 729,42 L.Ed.2d 725 (1975). While Due Process protection does not create property rights, it does protect those property interests created by an independent source such as state law. Id. The constitutionality of a law may be determined by its operative effect. Castle v. Mason, 91 Ohio St. 296, 110 N.E. 463 (1915). A statute, the

operative effect of which is to deprive a person of his property without notice and an

opportunity to be heard before a competent tribunal, is violative of Section 1 of the 14^

Amendment to the federal Constitution. Voeller v. Neilston Warehouse Co., 136 Ohio

St. 427, 26 N.E.2d 442 (1940).

6 In this case on appeal, the requirement of specificity contained in R.C. 5717.02, paragraph 2 runs counter to the right of the Greene County Auditor to appeal the determination of the Board of Tax Appeals under R.C. 5717.02, paragraph 1 and deprives her of that statutorily-created right to appeal.

In addition, R.C.5717.02's requirement that the Board of Tax Appeals dismiss

appeals where the Notice of Apeal lacks specificity, when coupled with the lack of input,

explanation, or scrutiny by the county auditors (or anyone else for that matter), affords the

Tax Commissioner and his minions unfettered discretion to make secret and non-

reviewable decisions that can have potentially catastrophic results on the funds available

to counties in this state. These dismissals insulate the Tax Commissioner's

determinations from public, or even private, scrutiny or judicial review. All the Tax

Commissioner has to do is to file his Certificate of Valuation.

As recently as June 3, 2010, this Supreme Court stated:

While Ohio, unlike other jurisdictions, does not have a constitutional provision specifying the concept of separation of powers, this doctrine is implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of powers granted to the three branches of state government.

State v. Bodyke, Ohio Supreme Court Case No. 2010-2424, 2010 WL 2219064 (June 3,

2010; see also State v. Thomnson, 92 Ohio St.3d 584, 752 N.E.2d 276 (2001). This

Court has also explained that:

The purpose of the separation-of-powers doctrine is to create a system of checks and balances so that each branch maintains its integrity and independence.

State v. Thompson, su a, 752 Ohio St.3d 584, at 728-729. While this Court's recent

7 pronouncements on this issue arose out of changes in Ohio's Adam Walsh Act, and did not involve personal property tax matters, the fundamental constitutional concepts are the same. The requirement of specificity contained in R.C. 5717.02, when coupled with the lack of requirement that the Tax Commissioner explain or share his reasoning or factual bases with a county auditor, and especially when coupled with the concealment

provisions of R.C. 5711.18 and 5711.26, totally eliminate constitutionally required

Checks and balances inherent in the separation-of powers doctrine and violate the due

process clauses of the Ohio and federal Constitutions.

These constitutional violations should be righted by this Court in three ways: (1) by

striking down the requirement of specificity in R.C. 5717.02 paragraph 2 as it applies to

county auditors; (2) by requiring that access must be statutorily mandated for, and input

permitted from, the county auditors to all proceedings involving impact on their county

treasury; (3) by striking down the provisions of R.C. 5711.18 and R.C. 5711.26 insofar as

they limit discover, disclosure, and public inspection of proceedings in which taxation is

calculated and assessed.

Proposition of Law No. II:

The requirement imposed by the Ohio Board of Tax Appeals on the County Auditor in her Notice of Appeal to state with more speeificity the elaimed error of the Tax Commissioner or snffer dismissal violated the due process rights of the Fifth and Fourteenth Amendments of the federal Constitution and of the Ohio Constitution Article I, Section 16, where there is no access given to the specific basis upon which the Tax Commissioner bases his decision.

This Proposition follows the same argument as made as to Proposition of Law No. 1

and that argument is incorporated herein by reference. However, an alternafive to fmding

8 the statutes themselves to be violative of the Ohio and federal Constitutions is to fmd the

Board of Tax Appeals's interpretation of the "specificity" required of a county auditor under R.C. 5717.02 to be violation of the Ohio and federal Constitutions.

This Court has stated that the essential elements of due process of law are (1) notice and (2) an opportunity to be heard. Voeller v. Neilston Warehouse Co., 136 Ohio St. 427,

26 N.E.2d 442 (1940). These elements could be met by the simple recognition by the

Board of Tax Appeals that the assessment process that guarantees a county auditor the

right to appeal to that tribunal does not include that county auditor in the assessment

process prior to that point. Thus, while specificity is required, the word itself is flexible

in interpretation and could be applied to recognize the exclusion of the county auditor

from the proceedings thus far. Therefore, where a party that is appealing is not required

to be included as a party at the lower level, more general terms could be interpreted as

allowed, as further specificity is not possible. The due process requirements of notice and

opportunity to be heard could in this way be afforded to the county auditor.

Proposition of Law No. III:

The Decision and Order issued by the Ohio Board of Tax Appeals on Apri120, 2010 which dismissed Appeflant's appeal for failure to more particularly specify error was an abuse of discretion where more specificity was not available to her.

This proposition follows the same argument as made as to Propositions of Law Nos. 1

and 2 and those arguments are incorporated herein by reference. However, rather than

find the statutes unconstitutional or the interpretation thereof unconstitutional, the Board

9 of Tax Appeals could be found to have abused its discretion in dismissing Appellant's appeal.

In Columbus Education Association v. Archuleta, 29 Ohio App.3d 264, 505 N.E.2d

29 (10`" Dist. 1986),where the decision itself of the lower tribunal violated the Ohio and

federal Constitutional due process rights of non-union teachers, the solution to correcting

that violation lay in a finding that the lower tribunal abused its discretion. In Archuleta as

in this case on appeal the decision itself, and not the procedure, was determined to be the

Constitutional violation. The level of "specificity" required by the interpretation of that

word by the Board of Tax Appeals was impossible to reach, and that interpretation was

reversible as an abuse of discretion.

Proposition of Law No. IV:

The requirement imposed by the Ohio Board of Tax Appeals on the County Auditor to more particularly specify the basis of her appeal effectively eliminates her right to appeal the Final Corrected Assessment Certificate of Valuation by the Tax Commissioner granted to her by Ohio Revised Code 5717.02 where the County Auditor is not privy to the specificity upon which his decision was based.

This Proposition incorporates the arguments and law in the previous propositions by

reference. Appellant hereby states that the dismissal of Appellant's appeal by the Board

of Tax Appeals on Apri120, 2010 is violative of R.C. 5717.02, and therefore illegal, in

that it deprives her of her right to appeal guaranteed by that statute. Therefore that

dismissal should be reversed.

Two of this Supreme Court Justices have already been critical of this restricton on an

auditor's statutory right to appeal. See Dissenting Opinion in DeWeese County Auditor

10 v. Zaino, 100 Ohio St.3d 324, at 399, 800 N.E.2d 1(2003).

Proposition of Law No. V:

The Final Corrected Assessment Certificate of Valuation of the Tax Commissioner from which the County Auditor sought to appeal constitutes a taking of the property of the people of Greene County without due process of law, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States, and in violation of the right of the people of Greene County to protect their property through their statutorily appointed spokesperson, the Greene County Auditor, under Article I, Section 16 of the Constitution of Ohio.

The argument under this Proposition hereby incorporates the argument contained in

Proposition of Law No. 1, but focuses it's attack on the Final Assessment Certificate of

Valuation of the Tax Commissioner that Appellant was attempting to appeal in her Notice

of Tax Appeal. Whiie the argument under this proposition would otherwise appear to be

premature, the wording of R.C. 5717.04 specifically authorizing this Court not only to

reverse but to vacate or modify makes this argument appropriate to bring at this time.

The Final Assessment Certificate of Valuation appealed from has no particularity

whatsoever to it and doesn't even state whether the case was settled or decided.

The argument that the actions of the Tax Commissioner constitute a taking of Greene

County's property without due process follows the same caselaw as supported

Proposition 1.

The Greene County Auditor, the designated Appellant for the people of Greene

County, has been deprived of property (tax money of the county) without hearing or

opportunity to be heard, and without any shown justification.

This Court long ago stated that if by administrative order property or rights are taken

11 or affected, parties must be given full opportunity to show by judicial review that the taking or interference with rights or property was so arbitrary, unjust, or unreasonable as to amount to a deprivation in violation of the Constitution. Hocking Valley Ry. Co. v.

Public Utilities Commission, 100 Ohio St. 321, at page 323, 126 N.E. 397, at page 398

(1919); Stanton, Pros. Atty. v. State Tax Commission, 114 Ohio St. 658, 151 N.E. 760

(1926). Reiterated in Zangerle v. Evatt, 139 Ohio St. 563, at 567-568, 41 N.E.2d 369

(1942). An explanation of evidence resulting in a taking of a property right has been found to be a protection afforded by the Due Process Clause of the Fourteenth

Amendment. Seltzer v. Cuyahoga County Dept. of Human Services, 38 Ohio App.3d

121, 528 N.E.2d 573 (1987).

Clearly, the Final Corrected Assessment Certificate of Valuation falls short of this requirement.

Proposition of Law No. VI:

The Decision and Order issued by the of the Board of Tax Appeals on March 16,2010 should be reversed, and this Court should Order its Decision to be applied retrospectively to all cases decided under these statutes where the counties, through their county auditors, were not permitted notice and opportunity to participate in all stages of personal property valuation for taxation thereof, because the procedure for review has been contrary to the aforesaid constitutional rights.

R.C. 5717.04, eighth paragraph, provides that upon review of a finding of the Board of Tax Appeals this Court may finally give relief to Greene County:

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.

12 Appellant therefore urges this Court to order the Board of Tax Appeals to overturn the

Final Determination of the Tax Commissioner for YSI, hic.'s 2007 personal property tax return and reinstate the prior determination.

As to the retroactivity of this Court's decision on the constitutionality of the procedures the statutes and their application as discussed hereinabove, which would cause previously determined cases to be reopened, this Court has found that prospective-only

application of a court decision is justified only under exceptional circumstance. DiCenzo

v. A-Best Products Co. hic., 120 Ohio St.3d 149, 897 N.E.2d 132 (2008). No such

exceptional circumstances exist in this case. Therefore, the Court's decision in this case

finding the statutory procedures or their application unconstitutional and illegal should he

held to apply retroactively, so that previous decisions of the Tax Commissioner can be

reviewed and rectified.

Ohio's county auditors have for years been told by decisions of the Board of Tax

Appeals that they could not sustain an appeal lacking specificity in the Notice of Appeal.

Appeals were therefore effectively prevented by the statutorily exclusion of those county

auditors from the fact-fmding process. The result, as was shown in this case, has been a

grant of full-rein authority to the Tax Commissioner to make unexplained decisions that

result in the loss of large amounts of monies to the citizens of Greene County and others.

The Supreme Court should rectify this situation in the manner urged here today, making

its ruling retroactive so that the light of day can be shed on why those tax dollars were

lost, and more equitable results can be obtained.

13 CONCLUSION

The procedures delineated in R.C. 5711.26 for redeterminations made by the Tax

Commissioner, by excluding the County Auditor from participation in those reevaluations, violated the due process rights of the county delineated in Ohio

Constitution Article I, Section 16 and the Fifth and Fourteenth Amendments of the

Constitution of the United States. The requirement for specificity in the Notice of Appeal to the Board of Tax Appeals, both as imposed by R.C. 5717.02 and under the interpretation thereof in this case by the Board itself, violated those same constitutional rights. In addition, the requirment of specificity, given the other applicable statutes as discussed above, constitute a violation of the separation-of-powers in that the checks and balances protected by the Ohio Constitution can be completely avoided, as they were in this case. The Decision and Order of the Board of Tax Appeals filed April 20, 2010 dismissing Appellant's appeal to that Board for lack of specificity in her Notice of Appeal constituted an abuse of discretion and furthennore was illegal.

The Final Assessment Certificate of Valuation by the Tax Commissioner issued

October 9, 2009 constituted a taking of the property of the people of Greene County without due process of law, in violation of the Ohio and federal Constitutions.

In light of the foregoing, the Decision and Order of the Board of Tax Appeals on April

20, 2010 should be reversed, and the Court should order the Board of Tax Appeals to reinstate the prior determination of the Tax Commissioner for YSI, Inc.'s personal

property assessments for the tax years 2007.

The Supreme Court of Ohio should also clarify that it's findings that the afore-

14 mentioned portions of the statutes are unconstitutional must be retrospectively applied.

Respectfully submitted,

Susan L. Goldie (#0018439) Assistant Prosecuting Attorn.ey 61 Greene Street, Suite 200 Xenia, OH 45385 Telephone: (937) 562-5250 Facsimile: (937) 562-5107 sQoldie ,co.greene.oh.us

COUNSEL OF RECORD FOR APPELLANT LUWANNA A. DELANEY, GREENE COUNTY AUDITOR

CERTIFICATE OF SERVICE

I hereby certify that a copy of this Merit Brief was sent by ordinary U.S. mail to Barton Hubbard, Ohio Assistant Attorney General, Counsel for the Ohio Tax Commissioner, 30 East Broad Street, 25'h Floor, Columbus, OH 43215-3428 and to Thomas E. DeBrosse, Thompson Hine LLP, Counsel for YSI, Inc., 2000 Courthouse Plaza, N.E.,10 W. Second St., Dayton, OH 45402.

Susan L. Goldie (#0018439) Assistant Prosecuting Attorney

COUNSEL OF RECORD FOR APPELLANT LUWANNA A. DELANEY GREENE COUNTY AUDITOR

15 IN THE SUPREME COURT OF OHIO

LUWANNA A. DELANEY, GREENE COUNTY AUDITOR

Appellant Appeal from the Ohio Board of Tax Appeals Vs. Board of Tax Appeals RICHARD A. LEVIN, Case No. 2009-M-3105 TAX COMMISSIONER OF OHIO

And

YSI, INC.

Appellees

NOTICE OF APPEAL OF APPELLANT LUWANNA A. DELANEY, GREENE COUNTY AUDITOR

Stephen K. Haller (#0009172) Greene County Prosecuting Attomey Elizabeth Ellis (#0074332) Assistant Prosecuting Attomey Susan L. Goldie (#0018439) (COUNSEL OF RECORD) Assistant Prosecuting Attorney 61 Greene Street, Suite 200 Xenia, OH 45385 (937) 562-5250 Fax No. (937) 562-5107 seoldie&o.greene.oh.us

COUNSEL FOR APPELLANT, LUWANNA A. DELANEY, GREENE COUNTY AUDITOR

Richard Cordray Attomey General of Ohio Ryan P. O'Rourke Assistant Attomey General Taxation Section State Office Tower, 25'' Floor 30 East Broad Street Columbus, OH 43215-3248 (614) 466-5967 Fax.No. (614) 466-8226 www.ohioattornevseneral.gov

COUNSEL FOR APPELLEE RICHARD A. LEVIN, TAX COMMISSIONER

Thomas E. DeBrosse Thompson Hine LLP 2000 Courthouse Plaza NE 10 West Second Street Dayton, OH 45402 (937) 443-3600 Fax No. (937)

APPELLEE PROPERTY OWNER/'I'AXPAYER YSI, INC.

Notice of Auveal of Annellant Luwanna A. Delanev Greene County Auditor

Appellant Luwanna A. Delaney, Greene County Auditor, hereby gives notice of her

appeal as of right, pursuant to RC 5717.04, to the Supreme Court of Ohio, from a

Decision and Order of the Board of Tax Appeals, journalized in case No. 2009-M-3105 on Apri120, 2010. A true copy of the Decision and Order of the board being appealed is attached hereto and incorporated herein by reference.

The Appellant complains of the following errors in the Decision and Order of the

Board of Tax Appeals.

1. The procedures delineated in Ohio Revised Code 5711.26 for redeterminations

made the Tax Commissioner, by excluding the County Auditor from participation

in those reevaluations, violate the due process rights of the people of the county

delineated in Ohio Constitution Article I, Section 16 and the Constitution of the

United States at Amendment XIV.

2. The requirement imposed by the Ohio Board of Tax Appeals on the County Auditor in her Notice of Appeal to state with more specificity the claimed error of

the Tax Commissioner or suffer dismissal violates the due process rights of the

county delineated in Ohio Constitution Article I, Section 16, where there is no

access given to the specific basis upon which the Tax Commissioner bases his

decision.

3. The Decision and Order issued by the Ohio Board of Tax Appeals dismissing the

appeal of the County Auditor for failure to more particularly specify her claimed

error was an abuse of discretion where more specificity was not available to her.

4. The requirement imposed by the Ohio Board of Tax Appeals on the County

Auditor to more particularly specify the basis of her appeal effectively eliminates

her right to appeal the Final Determination of the Tax Commissioner granted to

her by Ohio Revised Code 5717.02 where the County Auditor is not privy to the

specificity upon which his decision was based.

5. The dismissal of the County Auditor's Appeal, as well as the Final Determination

of the Tax Commissioner from which the County Auditor sought to appeal,

constitutes a taking of the property of the people of Greene County without due

process of law, in violation of the Fifth Amendment to the Constitution of the

United States, and in violation of the right of the people of Greene County to

protect their property through their statutorily appointed spokesperson, the Greene

County Auditor, under Article I, Section 1 of the Constitution of Ohio.

6. The decision of the Board of Tax Appeals under 5717.02 and 5711.26, is

therefore illegal and should be reversed, and the Court should order their finding

and order to be applied retroactively to all cases decided under these statutes where the counties, through their county auditors, were not permitted notice and

opportunity to participate in all stages of personal property valuation for taxation thereof, even in light of the fact that the personal property taxation under 5711.01 et seq. has all but ended in Ohio, because the entire scheme of review has been contrary to the aforesaid constitutional protections, and further because the Board of Tax Appeals has many cases now pending in which review under these statutes will be made in the future.

Respectfully submitted,

By: Susan L. Goldie, Counsel of Record

COUNSEL FOR APPELLANT, LUWANNA A. DELANEY, GREENE COUNTY AUDITOR

A•M CERTIFICATE OF SERVICE

I hereby certify that a copy of this Notice of Appeal was sent by certified mail to counsel for Appellee, Richard Cordray, Attorney General of Ohio, and to Ryan P.

O'Rourke, Assistant Attomey General, State Office Tower, 25`h Floor, Taxation Section,

30 East Broad Street, Columbus, OH 43215-3248, and to YSI, Inc. by certified mail to

Thomas E. DeBrosse, 2000 Courthouse Plaza NE, 10 West Second Street, Dayton, OH

45402, this 19'h day of May, 2010.

By: Susan L. Goldie, Counsel of Record

COUNSEL FOR APPELLANT, LUWANNA A. DELANEY, GREENE COUNTY AUDITOR OHIO BOARD OF TAX APPEALS

Luwanna A. Delaney, CASE NO. 2009-M-3105 Greene County Auditor, (PERSONAL PROPERTY TAX Appellant, DECISION AND ORDER vs.

Richard A. Levin, Tax Commissioner of Ohio,

Appellee.

APPEARANCES:

For the Appellant- Stephen K. Haller Greene County Prosecuting Attorney Susan L. Goldie Assistant Prosecuting Attorney 61 Greene Street, Second Floor Xenia, Ohio 45385

For the Appellee- Richard Cordray Tax Commissioner Ryan P. O'Rourke Assistant Attorney General Taxation Section 30 E. Broad Street, 25h Floor Columbus, Ohio 43215

For the - Thompson Hine LLP Taxpayer' Thomas E. DeBrosse 2000 Courthouse Plaza NE 10 West Second Street Dayton, Ohio 45402

Entered APR202010 Ms. Margulies, Mr. Johrendt, and Mr. Dunlap concur.

This cause and matter comes to be considered by the Board of Tax Appeals

I The affected taxpayer has not formally sought to intervene in this matter, but has submitted a brief supporting the Tax Commissioner's motion to dismiss, albeit on other grounds. Given its interest in the ultimate outcome of this appeal, the board will provide notice of its decision to the property owner.

A~t upon a purported notice of appeal filed on October 27, 2009, by the above-named appellant. It appears that appellant, the Greene County Auditor, seeks to challenge certain assessment certificates issued to YSI, Inc., a corporation with personal property located in Greene County. On March 17, 2010, counsel for the appellee Tax

Commissioner filed a motion to dismiss the auditor's appeal, asserting that this board lacks jurisdiction to consider her claims. On April 2, 2010, the taxpayer, YSI, Inc., filed a memorandum supporting the Tax Commissioner's motion to dismiss, and argues an additional ground for dismissal for a portion of the auditor's appeal. The taxpayer argues that the auditor's notice of appeal is untimely as to the challenges to 2004 and 2005, as the auditor did not file her appeal within 30 days of the Tax Commissioner's final determination, which was issued May 28, 2009.

We first dispose of the taxpayer's claim that the appeal was untimely. We note that there are four certificates of valuation attached to the notice of appeal. The first two are titled "Final Assessment Certificate of Valuation" and cover return year 2007.

The second two are titled "Corrected Assessment Certificate of Valuation" and cover return years 2004 and 2005. The taxpayer does not challenge the timeliness of the filing of the challenges to the 2007-tax year final assessment certificates.Z

2 Had the appellee taxpayer challenged the timeliness of the auditor's notice of appeal regarding the 2007-tax year fmal assessment, we would conclude that the auditor's appeal was filed within the time limitations of R.C. 5717.02. According to R.C. 5711.25, preliminary assessments are issued by the tax commissioner to county auditors the second Monday of August. The preliminary assessment certificates are based upon retums filed by a taxpayer and generally become fmal two years later unless the taxpayer files an application for final assessment pursuant to R.C. 5711.26. If a taxpayer seeks final assessment, the Tax Commissioner will review the taxpayer's claim and issue a fmal assessment certificate which may be appealed pursuant to R.C. 5717.02 within 60 days of the issuance of the final assessment certificate. It appears that the two fmal assessment certificates for tax year 2007 were mailed to the auditor on October 9, 2009. 2 A-7 Challenges to a personal property tax return may take two different paths.

If a taxpayer seeks to amend a previously filed personal property tax return, it may seek

final assessment within the time limitations of R.C. 5711.25. R.C. 5711.26. If the Tax

Commissioner audits a personal property tax return filed by a taxpayer and determines

that property was omitted or incorrectly returned, he may proceed under R.C. 5711.31 to

issue an assessment. That assessment must be challenged before the Tax Commissioner

by filing a written petition for reassessment. It is the Tax Commissioner's final

determination upon that petition for reassessment which is subject to appeal to this board.

Once the Tax Commissioner's determination becomes final, either by

operation of law or decision upon appeal, if the ultimate determination orders correction

of the original assessment, the notification "may be in the form of a corrected assessment

certificate." R.C. 5711.3 1. The auditor has attached corrected assessment certificates to

her notice of appeal. Those certificates identify a "certificate of determination no. 07-

00318 dated 5/28/09" and a "certificate of determination no. 07-00319 dated 5/28/09."

The taxpayer has attached a final determination to his memorandum in support of the

motion to dismiss, which identifies the same case numbers, 07-00318 and 07-00319.

Therefore, the board concludes that the corrected assessment certificates of valuation

were issued pursuant to a final determination dated May 28, 2009. The Tax

Commissioner was required to transmit a copy of his final determination to the

"applicable county auditor." Thus, the taxpayer is correct - the time for filing a notice of

appeal began May 28, 2009. R.C. 5717.02. Thus, a notice of appeal filed October 27,

3 A^/'^ O 2009 is outside the time permitted by R.C. 5717.02. Accordingly, the challenges to the final determinations for tax years 2004 and 2005 must be dismissed as untimely filed.

As to the 2007 final assessment certificate, we agree with the Tax

Commissioner that the auditor's appeal does not meet the jurisdictional requirements of

R.C. 5717.02. In DeWeese v. Zaino, 100 Ohio St.3d 324, 2003-Ohio-6502, the Ohio

Supreme Court held that a county auditor's right to appeal a personal property tax final determination is dependent upon compliance with R.C 5717.02, including the specificity requirement. See, also, NBC-USA Hous., Inc.-Five v. Levin, Slip Opinion No. 2010-

Ohio-1553. In Delaney v. Levin (Mar. 16, 2010), BTA No. 2009-V-3139, unreported,

this board held that a similar appeal from the Greene County Auditor was invalid

because the notice of appeal failed to state with any specificity the errors claimed by the

auditor.

The auditor argues that she is unable to be more specific because she is not

given access to the information which is the basis of a personal property tax filing.

While an auditor is given the right to appeal under R.C. 5717.02, no statutory authority

exists for an auditor to access the tax records which are the sources of the assessments

issued by the Tax Commissioner and collected by the county. The auditor claims that her

actions are taken in an effort to protect the general fund for Greene County "necessitated

by the unreasonable and unwarranted reassessment by the Tax Commissioner."

Appellant's memorandum contra to motion to dismiss, at unmarked p. 2. The auditor

argues that to dismiss her appeal for failure to specify error renders ineffective the rights 4 A_9 provided to an auditor in R.C. 5715.02.

This claim was addressed in DeWeese, supra, where the court held with

respect to reviews of petitions for reassessment before the Tax Commissioner:

"If the county auditors desire authority to challenge intercounty personal property tax retums on issues not determined bv the Tax Commissioner, they will have w seek that autnority from the Generai HssCmoiy."

While the path by which the auditor seeks to challenge a personal property tax return is

somewhat different, the result is the same. The General Assembly has provided county

auditors with no avenue to review underlying tax documents - that review is left to the

purview of the Tax Commissioner. Without such an avenue, a county auditor is

necessarily restricted from information upon which the Tax Commissioner relied in

determining a personal property tax challenge. Nevertheless, upon appeal, a county

auditor must specify the errors complained of. The Board of Tax Appeals, as a quasi-

judicial administrative agency, must strictly comply with the tax laws. See Zephyr Room

Inc. v. Bowers (1955), 164 Ohio St. 287; Fineberg v. Kosydar (1975), 44 Ohio St.2d 1;

Clippard Instrument v. Lindley (1977), 50 Ohio St.2d 71.

The auditor has not followed the conditions imposed by R.C. 5717.02.

Therefore, it is the decision of the Board of Tax Appeals that the present appeal is

dismissed. I hereby certify the foregoing to be a true and complete copy of the action taken by the Board of Tax Appeals of the State of Ohio and entered upon its journal this day, with respect to the captioned matter.

Sa ly F. Van Meter, Board Secretary

A--1 I 1N THE SUPREME COURT OF OHIO

LUWANNA A. DELANEY, GREENE COUNTY AUDITOR

Appellant

Vs

RICHARD A. LEVIN, Appeal from the Ohio TAX COMMISSIONER OF OHIO Board of Tax Appeals

And Board of Tax Appeals Case No. 2009 V 3105 YSI, INC.

Appellees

PROOF OF FILING WITH BOARD OF TAX APPEALS

I hereby certify that a copy of the Notice of Appeal in this case was filed with the Board of Tax Appeals by ovemight FedEx delivery this 19th day of May, 2010.

Susan L. Goldie (#0018439) Assistant Prosecuting Attorney Attomey for Appellee Luwanna A. Delaney, Greene County Auditor 61 Greene Street, Suite 200 Xenia, OH 45385 (937) 562r-5250 Fax No. (937) 562-5107 s o IdieAco.greene.oh.us

k• i'L Form 920 2007 .RBV. 1i1£`6 C-rgmng. C:d7tirttv County Retum of Taxable Business F'oracanunlingperiod tti to 12151 472 Ta xp ; rname.Yi, Vrc LLC, es rs i'a:cpaysrad3ress (requirectl ^^ ta. 2iP cm9e `''"°?lava Springs, OH 4 Doing business as (DBA) Physical iocataon g€taxa4le property a+rse Date businessst'arted9n phdo t'21`"09 Description of busi ness 1i170 1^

ta "veiai seeul.ry numtier Ohi7 vendof's 1?:ense Yesn'.`.w Type of business: LJ Car Q Partnership U LP 0 LLC U Sole proprietor 0 Other ncludes: LI Form 902 ? 3eX Ll Gonsoiitdatec3 (submit IEst of company names)

TexiN^sE^ amaftownsWp, and schddd'ftC} ...... 2. Schetiula 2 {neeeest $10} ..,...,.-- 3. Sc'rcatluls3 (atearestWt3) ...... 4, Schedue3A(nean^st$Efl)...... , 5: Scheiuie^{ eaesE^1D}...... _..

7. $10,000axemdiar ......

11. Anxwnt paio w0rsturn ......

Fdletksas return in dup Ft one-ba3f of tax, d. No pa emt is recgul

i?^c1arat$ssn dJwe declare under penalties of per;ury that this return (including any ccernpan inq schedules and statements) has been examined by me/us and to the best of my/our knoWedge anc9 beEeef i tru or and compfe^ return and reiaast. ^^ sr^^^chgr s^^^o^n^ ^ , P-GFo (c !f t^ Tax praoarerttax representafive Si naturaoftaxpayer rr>e Date 8t74'€ F1irU;,rt F^wu - Sm 7{Y7 - Ft V'drort, TX 764$0 Name c f ta>:payer {p3ease print) C}2ie ^ Z^n 1 3,41 Piwne rZumbw Pi'toflBnkP€Tib°r sHs^!aer^,"cF,`n=.cotr. Lp.vrl,maj^ C<11 E-mail address E-mail address hinery acsdEqu}p€:3erta.. [,ist a:12:5°!a mschinery tlretused in business in C7hioiaefore.tan. 1,.2005 that. i?k Vabu@. a

Schedut^.A-.Furni5rre Fir.tasre$,Macfiieaeryasad-Egu4. tarrodS pi:sfidsrtilset3EnAlsnufactairing.Listat12.5°ktumitu m®cft3nery and ec,uipnent, stapplies, small ttruls and rmpaV parts used in Iaunciries,tlry deaning, towel and linen suppfy, stone and gravel pfants, radia and tetevisinn broetlmsting, antl any oti"er business no^t oonstttuting manu!acWring, and atso inventoies of other than a manu€ao;urer or msrehantand afl domestle animals not used in 8,grieulture. List property used by pub5c udtity companies, and other pra>nerty used in generaiing and distri3ufin,r eleq^,IrEr,ity to otfidss at the Iisiing Peroentagefar that type cf property. Contact the Pronertv TaxC}lvisicin for ir,structioM #f the valdaisbmsed on other then book value, aitac.h detailsof the comPuistion. Truet!alve °k^I L'sssad?faiua 2.5 57,277

2.5 1 142,155 26-D'45g Stand AEone Computers

n front of retu

zrrt 9a$airot„ft rissg Eapetpnae»¥. List by taxing dPstrictand cost ail manufaciu9'ng equipment tSrsG "sec ecadendas or fiscat year ending in 2006. See F2,C. 5711.16 for a compiete definition of a manufactu id manufactur?ng1acitity to deatermine if you qualify to iist this equlprnenE isereer in Schedule 1.

t`A&E ( 2006 E 17

Yastat tttre0ifyiAg tasts 2(}O7 return (carry cost by Wing di on 2608 return net tf: dispcvsa Total (oarrv zstai cost to line 80 on form 921) A'1tj teeg i;tivem alus atI inv»ntprieso3 raw a;ra!eria?s, works ir) pmcsst nLi'lacturn red fmm the county p° manufacture and Snven4ory he (e oy a rnercnanP 6nusfve ule 3A. Ust ; :ty by§he county and kaxin(g slisi:icL Use €he counly nu u§curieectrMme anrt namb^ d9siricf. Rnu to thsneas°asf 510 and carr;4crusarc3 to line 3. {71th muims snoriw3+'ra:ve . .. rif

at inwrsiary . . I F9E€Sa7st Lii=[5 co5t Physical inventtzty-- 3ndard cost ptkter - Grws profrts rs:ethad- C7ates physicats taken k to ph

Net saSes $ I Othsr sese,-4es 1 1- I -ft:) 3A - Mercttard3s8epg itx '..5lh Ctt average Y8i3tC 80 ti ti= 6f r^-F3nufac8ura. er1 atre4at€ aetttemust be n ,lse #i9e counYy Yftt ii.me and ttUPflbOTpP i

Book ?.tt]i.§arhopsE3 13wk to physical € EFU rem - cqher rewues

( Ta*ngt)i mot Roma & P4ra;as&Lr

Avgust

E December

-92- A-11► 21 2007 P^V. ,;% ^^io Balance Si d€u be fi3ort Vitfa tax forms 920 and 945) Narns v`i, 3ec. Fe€tdlSocial Secur'rky numbmt- 52133

F) Agnoufturakmachineryandeciui3snent(mercfandise) ...... G) Ezempked inusnfaey (including foreign trade z;sne) ......

6. '. itr9z .

7. L.ease3told'vmpr^^ ents A) Taxed as real estate ...... B) Taxed asperaanalproperty ...... 8. Mactsirsar}a aard equipment A) Taxed as real estate ...... 8) Taxed as personal praperky ...... G} Exempt rnanufacturing equipment KS. 66,...... 9. Fcaar€taareasrodflx@eares ...... , 10. Petira cnat property @aasad to ta;hers

12, Exempt gaarsasaal presw located In an terprEse zone (attach form 9130K) or a ^docessubstasacs asnataanares ...... 98. Certafiad exempt facelsfles ...... 14. Pathenss., j}gs> dies and deasmrfngs ...... :..... 115. Construction In prngress A) Real properfy...... 8) Personal property capable of use ...... G) Pe3sorrai property not capable of use...... 17. Vehicles and aircraft A) Registered or licens sd ......

. 'rrata s and :aEe, bcrnds and 21. Accrued expenses ...... _...-...... :.,...... 22. Other liabilities, d 23. Preferred st€zeEc...... _...._...... -...... 24. Common st^tt ...... :...... _...... :...... € 25. Additional pa6s£win capita! ...... 26. Retained earnings ...... 2t. Appropriated earntngs ...... 28. Owner's capital ...... ____ ...... _._...... _.._.,... [

30. Tatat €iabi#etics and net ' MSa ...... _.--...... _13_

!f^' { 2007 Exha^its for Balance Sheet Reconciliation and Leased PropertyfCeansigned Inverstory

Exs^^^it A - Recorrciliatiean of Baiat'acs Sheet L"sne Ntrmbers 3, 6Bs 9t 10; Boo... k i Value 92c nc'rie Value 1 Retumed Dlfferenm Differences

Exhibit B Please provide a k riof desnr`,ptiono+tsasehold irnprovemerits and maohim!y and p n nes 7A and 8A).

F-s€hibst C - Leased Property List all tangibta 1 naI property Wd underleaso on tax listing daY-

T-L Tyqae b€ ciloss wne arad Ark€ress sr€P,ropeety Owner iStarc Date End"arsa D&te) F"roP-arty Annual Rental

Exhibat D - Onve aid Under Saelme.>at> Consignm ent, Contract Agreement List all inventori= nment or as ba6lmsnt, or undercontract, and in your possession duriN the reoorting period and not llstsd in this re 'Y'ype I Inventory LacatEcux EsT9suseci a aest! Address of lnven4ory Owner Addmw Averaaga Value

14_

ikoll kup of Ohio Tax Form TRUE VALUE COMPUTATION 937 XXX Maehinery & Equipment p Furniture & Fixtures Ciass Return Year f} Gomputer Equipment Y

Cotnpany ^Taxing District and Courty Miami TWP Yaliow Spr'tngs Urlla^ - Greene YS {7} ^2} £3} {4} ^5} ^? Year Cnst Additions & Oisppsals Cost Per True Value Acquired At End 0€ Transfers In Transfers Out At End Of Cent Amount =rz 2DW ^ 2006_..

2004 720 107,132 48;55s 2002 87,603 2001 '}aT,5 469,485 7 Ff,UoU 0?.1 t0-i0 298,980 385,552 184,375) 500,157 56.900t0 284,589 12230 71,835 1,83E 192,E350 50.60% 87,582 15" 620 66172 {3,^95} 218,497 44,40°la 97;013 1 162.715 256,250 134,116) 294;849 38.2t3?In 112;ES32 420;103 197,509 ^5;895. 520,922 32.847, 203,662 65,423 77,518 6,03fl 138,911 29.50°!o 40,389 1994 64,985 33 @7^ 128,€60 26.2t3°lo 33S 46,172 31,956 1,404 76,728 22:90°ln 17,571 1992 175s758 44,219 2'19,977 19.60% 43,1'75 39;713 52,310 9423 18.30'lm 13,D0D 121;65q 3D,477 152,127 16,3D9`o 24,797 44,$t^16 64,68S 1Q9,487 18.3tl°lo 17,846 18,409 83;3QS 17,323 10U,668 ^ 16.30°l0 1987 21;319 4,263 25,574 '€63Q°k 4,169 59,498 Prior 333,197 31,819 365,016 16.30°a

2,302,258 1 1,807,7 (337,142)

A-^ i Tax Form TRUE VALUE Ct7MPUTATK)N f Ohio 937

Return Year 20QZ

Gompany I Taxing Disfisiat and County TWP - Yellow SR`ngs - Greene (2) L3 (4) (6 (7) Year Cost Asfciitions & Disposals Gctst Per True Value Acquired At End Of Transfier3 tn Transfets Out At End Of Gstit Amount $ 9(},07'7 1 27 84,756 57,320 47,^{IO 278,455 'i72;i342 4.91 43,729

41;622

^..^ 1 64,41:

kZz Tax Form TRUE VALUE COMPUTATION State of Ohio 937 O 68achinesy & Equipment XXX Furniture & Fixtures Class Return Year O Computer t;quipmerst .l1I

ny Taxing District anr! Caunty YSI, 9nc. TtNP - Yatlow Springs lli3lage - Greene (5) (7} (t} {2 L4) (6) l' ear Cost Additf.rn; (3isposals cost Per True Value Acquired At End CN Transfers In Transfecs Out At End Of Cent Amount EI 2M $ 66,758 66,75893.20°k 62,218 2,993 2,983 82.86% 2,478 39,716 24,432 64,148 72,40°lo 46,443 2003 159,324 38,735 198,059 ' 62.00% 122,797 2{)02 30,500 17,244 47,744 ^a1.60 /a 24158'8 2001 86,176 12,412 98,587 42.26°la 41,604 5 ;32 36.3id"!o

t1,7ttt1 0„70f}_1 24.4 27,232 8:60°k 38,076 996 274;325 142,523 9,492 407,756 18.8Ct°^i 76,658 995 14,991 (3,462 11,5{J9 48.80°l0 2,4t;4 994 18,2G33 18,2^9 18:8f?°1o 3,422 993 2 992 37858 37,858 98.80°le 991 51,426 51,426 18.80°k 9,6 990 $;396 s,396 18.8f)°ta 1,578 989 3 a4,577 104,577 18.80°ra 19;6fi4 988 11,285 17,288 1 B.8d°lo 2,122 1987 1,241 12,475 Prior 7;691A 21,0401 _. 18.800, 3;9^6

406E47 1 347 ,6521 (130,763)1 1,623,736 List @

^-z3 Tax Form TRUE VALUE Cf3PAPUTATt4h! State of Ohio 937 0 A3lachinery & Equipment ti FurnitUro & PixtuE$s Gla Ratum Year XXX Computer Equ3pmen€ wlqv^ 2QQZ

ct and Cour IY53 V'tlags - Gr^

Year cost Additions & Disposals Gosf Per True Value Acquired At End Of Trans€ers !n Trar sfers Out At End Of Gent Amount X15 2006 zoo 'm s 498 75.Q0°Ia 1 76,124 79;046 I 26,27 03,237 60.00 2004 617.879 58,436 ( 122,778 1 1 281,214 30,9E3 2002 124,337 t( f 3 92C7) 183,218 15.00 2'T3,715 1 24,

55,97Ci}; 91 &^403 15.Op°lo

q^a,600 (20,( 979 40.504 448,726)j 251,7 42;386 1 50,931 1 f12,32 96,689 6;530 F6,72 476 ( 18.0(}°o E 14,47 .00% ' 29;21

f9.944 # R,9Q7 4121 14,812 215,224 1 1640%__L 31.984# 7 3 15:3971 71 15:t30°k [ 2,310 7,9^0

Tofals 4,575,{?2 2;0791 (1$0,7 7,242

A'z q Tiao< Form • Tax. Year 310 2007

E=ot•- stor^ge-Oss€y Ca8cu1at` W9aeet

Taxpayer`s Name: YSI, Inc.

County: Greene County Taxing District: I

Gaiculation of Storage-Only Exemption

1. Shipments into warehouse from within Ohio...... :.... $ 1,143,793

2. Shipments into warehouse fmm outside Ohio...... $ 1,013,449

3. Total shipments into warehouse (Iine I plus line 2) ...... ,..,.,.,...... $ 2,157,242

4. pivitiei[ne 2 by line 3 ...... _...... 47%

5. Shipments from warehouse to Ohio iacations...... s

6. Shipments from warehouse to locations outside of Ohio ...... $ 488,333

7, Total shipments of out+uarehouse(€ine 5 plus line 6) ...... $ 4$8,333

$. Divide line 6 by line 7{thGs equals to total percentage out of warehouse#taat 100%

9. Muftipty line 4 by llne 8(I"h'rs equals the total percentage of inventory that is exempt from persoanl property taxation a; this }ncation. Take this percentage times the average monthly value to reach the amount of inventory that is not taxable at this locat+on.}...... --_ ...... 47%

10. Average monthly inventory value at facility (from Schedule 3 or 3A) ...... $ 494,279

11. Multiply line 9 by line 10 (result is amount of nontaxable inventory) ...... $ 232,207

12. Subract line 11 from line 10 (taxable average va8ue) ...... $ 262,072

13. Niultipfy Line 4.2 by the List % of'C2,50°l0 ...... $ 32,759

,4-x5 FAX TRANSMITTAL MEMO

TO: ADA/'I

COMPANY/DEPT: ^J N^^f Cr1 ^ ff XCL^^-, 0^

FAX NUMBER: ^f lC/ ^ 5 5 ^ b 3 3

FROM: LUWANNA A. DELANEY PHONE: 937/562-5074

COMPANY: GREENE COUNTY AUDITOR FAX NUMBER: 937/562-5071 69 GREENE STREET, SUITE 200 XENIA, OHIO 45385

MESSAGE: J ^^- NUMBER OF SHEETS (INCLUDING COVER)

CONFIDENTIALITY NOTE:

THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS

T-UE IINDIVIDUAL OR ENTITYNAMED ABO VE. IF THE READER OF THIS MESSAGE IS NOT THE 1NTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPY OF THIS TELECOPY IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TELECOPY IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ADDRESS LISTED ABOVE VIA THE UNITED STATES POSTAL SERVICE. THANKYOU!!

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COMPANY/DEPT: ^) b L) I^YA, T i p yV

FAX NUMBER: 33'D uc-1 3 ri5 ;D,

Zt^r-f-I FROM: LUWANNA A. DELANEY PHONE: 937/562-5074

COMPANY: GREENE COUNTY AUDTTOR FAX NUMBER: 937/562-5071 69 GREENE STREET, SUITE 200 XENIA, OHIO 45385

MESSAGE: } 1 NUMBER OF SHEETS (1NCLUDING COVER)

S ^ LrvC, Oi:`o -7 P(-)t 0-ZTu^Z/v

CONFIDENTIALTTY NOTE:

THE INFORMATION CONTAINED IN THIS FACSINIILE MESSAGE IS , THE INDIVIDUAL ORENTITYNAMED ABOVE. IF THE READER OF TIiIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPY OF THIS TELECOPY IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TELECOPY IN ERROR, PLEASE IMIViEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ADDRESS LISTED ABOVE VIA THE UNITED STATES POSTAL SERVICE. THANKYOU!! A-t 4 Personal Property Tax Division Department of 30 E. Broad Street, 21s` Floor P 0 Box 530 Ohio Taxation Columbus, Ohio 43216-0530 (614) 387-13 10 Fax (614)466-8654 www.tax ohio.eov August 3, 2009

HONORABLE LUWANNA DELANEY GREENE COUNTY AUDITOR GREENE COUNTY COURTHOUSE 69 GREENE ST ROOM 200 XENIA, OH 45385 ci TAXPAYER: YSI INCORPORATED 1002418 TAX RETURN YEAR: 2007 CASE NO:

Dear Auditor:

The taxpayer listed above has filed an Application for Final Assessment for its personal property-urtWr-tlie provisions of Ohio Revised Code Section 5711.26.

The taxpayer has requ^ +od a clesaease.axes_I2aidnf to your county in the amount of $4097. The tax return wtll be audited and this audit may resuzt in Tn incr^or a ...... eA .. ...,,, nn„r,tv Ynn will hf', audit of any changes in the value of the personal property will be by assesse m yo y as well as if there are no changes. This notification Final Assessment Certificate.

If you have any questions concerning this matter, please contact the Personal Property Tax Division at P.O. Box 530, Columbus, Ohio 43216-0530

Very truly yours,

Reassessment Unit Personal Property Tax Division

FAN-A

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August 24, 2009

NAME: YSI INCORPORATED RETURN YEAR: 2004 COUNTY: GREENE DBA: ADDRESS: TAX / ACCOUNTING DEPARTMENT 1725 BRANNUM LANE CITY: YELLOW SPRINGS, OH 45387 X FINAL 947-FC

TAXING DISTRICT: 290160 ACCOUNT NUMBER: 10525059 MIAMI TWP-YELLOW SPRINGS EVSD FEDERAL ID N0. : +j 1rrm ^v . /1 r 06 --11^1 - LISTED VALUES PREVIOUSLY INCREASE TAX RETURN SCHEDULE AMENDED ASSESSED (DECREASE)

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ITEM EXPLANATION PER CERTIFICATE OF DETERMINATION NO. 07-00318 DATED 5/28/09

AGENT CINDY LOSEY

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rbar.'-r_A.t. ®CT 2 7 zDOo BOAR® OF TAX ,^^Pr--;A COLl1MBUSe ®H!Ov..W IN THE BOARD OF TAX APPEALS

In the Matter o£ YSI INCORPORATED NOTICE OF APPEAL OHIO DEPARTMENT OF TAXATION ACCOUNT NO. 10525059 F.E.I.N.4101RIEW

Now comes Luwanna A. Delaney, Auditor for Greene County, Ohio, and respectfully

moves that this Honorable Board reassess the taxable personal property required to be

returned by taxpayer YSI, Incorporated, ODOT Account No. 10525059, F.E.I.N.JW jolkliMor the return years 2004, 2005 and 2007. Appellant Greene County Auditor

specifically objects to the refunders ordered for the 2004, 2005 and 2007 return years.

Appellant has attached to this Notice of Appeal, and incorporates herein by reference,

a copy of the Assessment Certifications which she hereby appeals. This appeal is based

upon the position of the Greene County Auditor that said refianders are unreasonable and

unwan-anted, and furthermore that the business is closed and nonexistent.

Respectfully submitted,

.,...... , z lii; LiWanna A. Delaney Greene County Auditor 69 Greene Street, Room 200 Xenia, OH 45385 Telephone: (937) 562-5065 Facsimile: (937) 562-5079

,*'3S Susan L. Goldie Assistant Prosecuting Attorney for Greene County, Ohio Attomey for Greene County Auditor 61 Greene Street Xenia, OH 45385 Telephone: (937) 562-5250 Facsimile: (937) 562-5107

CERTIFICATE OF SERVICE

I hereby certify that a copZ of the foregoing Notice of Appeal, with attacbments, was sent by certified mail this 27 day of October, 2009, to Tax Commissioner, Ohio Department of Taxation, Personal Property Tax Division, P.O. Box 530, Columbus, OH 43216-0530.

^Cb'(3L^ rJ^ . ,^^6^.eY^z Susan L. Goldie Assistant Prosecuting Attorney

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A- Ko BEFORE THE OHIO BOARD OF TAX APPEALS

LUWANNA A. DELANEY, GREENE COUNTY AUDITOR,

Appellant, BTA Case No. 2009-M-3105

V.

RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO, AND, YSI, INC.,

Appellees.

TAX COMMISSIONER'S MOTION TO DISMISS APPEAL

Appellee, Richard A. Levin, Tax Commissioner of Ohio, hereby moves the Board to

dismiss this case for lack of jurisdiction because the Appellant failed to specify error in its notice

of appeal as required by R.C. 5717.02. A Memorandum in Support is attached.

Respectfully submitted,

RICHARD CORDRAY Attorney General of Ohio

RYAN P. O'RZWRKE (0082651) Assistant Attorney General 30 East Broad Street, 25th Floor Columbus, Ohio 43215 Telephone: (614) 466-5967 Facsimile: (614) 466-8226

Counsel for Appellee Richard A. Levin, Tax Commissioner of Ohio k --qJ MEMORANDUM IN SUPPORT

I. Introduction.

The Appellant has filed a notice a notice of appeal from the Tax Commissioner's final and corrected assessment certificates of valuation for 2004, 2005, and 2007. The notice of appeal states in relevant part that:

Now comes Luwanna A. Delaney, Auditor for Greene County, Ohio, and respectfully moves that this Honorable Board reassess the taxable personal property required to be returned by taxpayer YSI, Incorporated * * * for the return years 2004, 2005, and 2007. Appellant Greene County Auditor specifically objects to the refunders [sic] ordered for the 2004, 2005, and 2007 return years. Appellant has attached to this Notice of Appeal, and incorporates herein by reference, a copy of the Assessment Certifications which she hereby appeals. This appeal is based upon the position of the Greene County Auditor that said refunders [sic] are unreasonable and unwarranted, and furthermore that the business is closed and nonexistent.

For the reasons that follow, the matter should be dismissed.

II. Law and Argument.

Pursuant to R.C. 5717.02, a notice of appeal "shall also specify the errors therein

complained of * * * ." The specificity requirement is jurisdictional and has been given a

"stringent" interpretation by the Ohio Supreme Court. Ohio Bell Tel. Co. v. Levin, Slip Opinion

No. 2009-Ohio-6189; Cf. Turner v. Levin, Slip Opinion No. 2010-Ohio-922; CNG Dev. Co. v.

Limbach (1992), 63 Ohio St.3d 28, 32. The Court has explained that "[f]or more than 50 years,

this court's decisions interpreting the specificity requirement of R.C. 5717.02 have made clear

that a notice of appeal filed with the BTA must explicitly and precisely recite the errors

contained in the Tax Commissioner's final determination." Newman v. Levin (2008), 120 Ohio

St.3d 127, 131; Satullo v. Wilkins, 2006-Ohio-5856, ¶23. To specify means "to mention

A.4z specifically; to state in full and explicit terms; to point out; to tell or state precisely or in detail; to particularize; or to distinguish by words one thing from another." Queen City Valves, Inc. v.

Peck (1954), 161 Ohio St. 579, 583 (quotations omitted).

This Board's recent decision in Luwanna A. Delaney, Greene County Auditor v. Levin

(Mar. 16, 2010), BTA No. 2009-V-3139 compels the conclusion that this matter must be dismissed. In that case, the county auditor (the same county auditor as in this case) appealed the

Tax Commissioner's final corrected assessment certificates of valuation. The county auditor filed a notice of appeal, and employed language that is virtually identical to the language used in this appeal. Specifically, the county auditor's notice of appeal alleged that the "refunders [sic] are unreasonable and unwarranted, and furthermore that the business is closed and nonexistent."

The Board held that the language in the notice of appeal was too general, and therefore dismissed the matter pursuant to R.C. 5717.02.

The same result should apply here. The Appellant's notice of appeal is far too generic to

meet the demands of R.C. 5717.02 because it fails to specifically identify how the Tax

Commissioner erred in issuing the final and corrected certificates of valuation. See Ohio Bell

Tel. Co., supra.

III. Conclusion.

For the foregoing reasons the matter should be dismissed.

3,q--q3 Respectfully submitted,

RICHARD CORDRAY Attorney General of Ohio

YAN P. O'#OURKE (0082651) Assistant Attorney General 30 East Broad Street, 25`h Floor Columbus, Ohio 43215 Telephone: (614) 466-5967 Facsimile: (614) 466-8226

Counsel for Appellee Richard A. Levin, Tax Commissioner of Ohio

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the Tax Commissioner's Motion to Dismiss

Appeal and Memorandum in Support was sent by regular U.S. mail to Susan L. Goldie, Greene

County Assistant Prosecuting Attorney, 61 Greene Street, 2d Floor, Xenia, Ohio 45385,

Attorney for Appellant, and Thomas E. DeBrosse, Thomson Hine LLP, 2000 Courthouse Plaza f^ NE, Dayton, Ohio 45402, Attorney for YSI, Inc., on this f 7 day of March, 2010.

Assistant Attorney General

4 ^^"^^ Ar,^SS^'t^

OHIO BOARD OF TAX APPEALS 291 n M-}R, 2C, A+ 10: 28

LUWANNA A. DELANEY, GREENE COUNTY AUDITOR,

Appellant BTA Case No. 2009-M-3105

Vs.

RICHARD A. LEVIN, APPELLANT'S MEMORANDUM TAX COMMISSIONER OF OHIO, CONTRA TAX COMMISSIONER'S AND YSI, INC., MOTION TO DISMISS APPEAL

Appellees

Now comes Luwanna A. Delaney, by and through Counsel, and hereby submits this

Memorandum Contra the Tax Commissioner's Motion to Dismiss Appeal filed March 17,

2010.

MEMORANDUM

Ohio Revised Code Section 5717.02 permits appeals to the board of tax appeals "by the county auditors of the counties to the undivided general tax funds of which the revenues affected by such decision would primarily accrue" to appeal "final determinations by the tax commissioner of any preliminary, amended, or final tax assessments, reassessments, valuations, deternunations, findings, computations, or orders made by the commissioner." This appeal is by the Greene County Auditor of the

"Corrected Assessment Certificate of Valua.tion" issued by the Tax Commissioner for

YSI, Inc., for the tax years 2004, 2005, and 2007. This appeal is therefore available to

Appellant under 5717.02.

A •go 5717.02 also states that "The notice of appeal shall ... specify the errors therein complained of." It is upon this wording that Appellee bases his Motion to Dismiss.

In support of his Motion, Appellee refers this Board to numerous appeals cases,

almost all of which were filed by a taxpayer or a taxpayer's corporate officers or settlors

of a trust for the taxpayer. All of those persons have access, as the entities whose records

are the source of the tax, to information as to how the tax was computed. The Final

Assessments in this case state that they were made pursua-it to Gbio Revised Code

Section 5711.26. That sections describes the means by which such a final assessment

may be gained from the Tax Commissioner, and it is clear from the description of that

procedure that the entity requesting that final assessment is the taxpayer, not a county

auditor (see specifically the wording "By filing such application within the time

prescribed ... the taxpayer has waived such time limitation"). There is no mechanism

provided for in that statute for any input from, or information to, the county auditor as to

what's being considered by the Tax Commissioner. Despite the fact that 5717.02

recognizes that the general fund of a county may be "affected by such decision," there is

no means by which a county auditor can advocate for his or her county. The procedure

spelled out in 5711.26 was indeed followed in this case on appeal, and thus the Greene

County Auditor was left completely in the dark about how the conclusion, which greatly,

and negatively, "affected" the general fnnd she is sworn to protect, was reached.

Given that effect, the Greene County Auditor did in fact attempt to protect the

general fund for Greene County, necessitated by the unreasonable and unwarranted

reassessment by the Tax Commissioner, only to be faced with the prospect of dismissal

because she did not furnish specifics that were never made available to her. To follow k=K6 the line of reasoning by Appellee in this case makes the allowance to county auditor to appeal such a Final Determination meaningless. Such a position also eliminates the checks and balances ensured by such allowance of appeal.

Appellee cites numerous cases in his Memorandum. All but one of those involves

an appeal filed by the taxpayer. In the only one filed by an Auditor-Newmanv. Levin,

120 Ohio St.3d 127, 896 N.E.2d 995 (2008)--the Auditor lost on appeal because he

failed to raise before the Board of Tax Appeals the issue he was now raising before the

Supreme Court. The appeal in the Newman case was filed pursuant to former RC

5709.47 (repealed in 2003) which specifically "gave the auditor the right to a hearing

before fmal disposition" (see Newman v. Levin, su ra 120 Ohio St.3d 127, at 129) by

the Tax Commissioner. In addition, in Newman the Auditor was privy to the factual

basis of the decision and was therefore able to articulate the factual basis for his appeal.

The "specificity holding" was made in that case not because the Auditor's appeal lacked

specificity, but because he tried to raise a different factual issue before the Supreme

Court than the one he had made before the Board of Tax Appeals.

Unlike the Newman situation, a county auditor under the now-applicable 5711.26

has no right to a hearing and no access to the factual information used to reach the Tax

Commissioner's conclusion. Where the responsibility to be more specific should have

existed under the prior statutory scheme, under the current statutes, it is impossible to be

more specific.

While 5717.02 requires specificity, it undoubtedly does not mean to require more

specificity than is possible. The term itself is vague and adaptable to the set of

circumstances before the Board or Court and should not be used to circumvent the

h--0 intention of Ohio Revised Code Section 5717.02 to afford an oppor[unity for the County

Auditor to appeal.

Respectfully submitted,

Susan L. Goldie (#0018439) Assistant Prosecuting Attorney For Greene County Attorney for Luwanna A. Delaney Greene County Auditor 61 Greene Street, Suite 200 Xenia, OH 45385 Telephone: (937) 562-5250 Facsimile: (937) 562-5107

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was sent by regular U.S. mail this 25I`

day of March, 2010 to Ryan P. O'Rourke, Assistant Attorney General, Counsel for

Richard A. Levin, Tax Commissioner of Ohio, at the address of 30 East Broad Street, 25a'

Floor, Columbus, OH 43215 and to Thomas E. DeBrosse, Attomey for YSI, Inc., at the

address of Thomson Hine LLP, 2000 Courthouse Plaza NE, Dayton, Ohio 45402.

A^Yp OHIO BOARD OF TAX APPEALS

LUWANNA A. DELANEY, GREENE COUNTY AUDITOR,

Appellant, BTA Case No. 2009-M-3105

Vs. RICHARp A. LEVIN, APPELLEE'S REPLY BRIEF TO TAX COMMISSIONER OF OHIO, APPELLANT'S MEMORANDUM AND YSI, INC., CONTRA TAX COMMISSIONER'S MOTION TO DISMISS APPEAL Appellees.

Now comes YSI, INC., by and through Counsel, and hereby submits this reply brief to

Appellant's Memorandum Contra dated March 25, 2010 that was filed in response to the Tax

Commissioner's Motion to Dismiss Appeal filed March 17, 2010.

YSI, INC. hereby replies to Appellant's Memorandum Contra dated March 25, 2010 by

stating its support of, and agreement with, the Tax Commissioner's Motion to Dismiss Appeal

dated March 17, 2010. Based on the facts, law and argument set forth in the Memorandum in

Support attached thereto, YSI, INC. respectfully requests that the Motion be granted.

In addition, YSI, INC. points out that the Notice of Appeal dated October 27, 2009 that was

filed by Appellant fails to meet the statutory time limitation under R.C. 5717.02 with respect to

the Final Determination dated May 28, 2009 for tax years 2004 and 2005 (see the copy of the

Final Determination attached as Exhibit 1). That is, R.C. 5717.02, which permits a county

auditor to appeal a final determination of the Tax Commissioner to the Board, requires that "The

notice of appeal shall be filed within sixty days after service of the notice of

the...determination...by the commissioner..." The Notice of Appeal dated October 27, 2009

was filed with the Board by Appellant well beyond the sixty day time limitation for filing a A- Li 1 Notice of Appeal for tax years 2004 and 2005. Therefore, the Notice of Appeal dated October

27, 2009 should be dismissed with respect to the 2004 and 2005 tax years for failure to meet the sixty day time limitation of R.C. 5717.02, as well as for failure to specify error as set forth in the

Tax Commissioner's Motion to Dismiss Appeal dated March 17, 2010.

Respectfully submitted,

Thomas E. DeBrosse (0040421) THOMPSON HINE LLP 2000 Courthouse Plaza NE 10 West Second Street Dayton, Ohio 45402-1758 Telephone: 937/443-6664 Facsimile: 937/443-6635 E-mail: [email protected]

Counsel for Appellant, YSI, INC.

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of YSI, INC.'s Reply Brief was sent by regular U.S.

mail to Susan L. Goldie, Greene County Assistant Prosecuting Attorney, 61 Greene Street, 2nd

Floor, Xenia, Ohio 45385, Attorney for Appellant, and Ryan P. O'Rourke, Assistant Attorney

General, 30 East Broad Street, 25th Floor, Columbus, Ohio 43215, Attorney for Appellee

Richard A. Levin, Tax Commissioner of Ohio on this 1 st day of Apri12010.

} ,(' .C n^.r^ry ^ ( E^^il ^i^-d-'^.3s2^, THOMAS E. DEBROSSE Counsel for YSI, INC. 610006.1 Exhibit 1

Ohio Department of TAXATION FINAL Olflce of Ne Tex Commrssronar 30 E BmaC St, 3Y° F/oor. Columbua, ON43Yf5 DETERMINATION

Date: MAY 2 8 2009

YSI, Incorporated ATTN: Tax / Accounting Department 1725 Brannum Lane Yellow Springs, OH 45387

Re: Case Nos. 07-00318 and 07-00319 Personal Property Tax Greene County Tax Years: 2004 and 2005

This is the final determination of the Tax Commissioner on petitions for reassessment pursuant to R.C. 5711.31 coneeming personal property tax assessments.

In resolution of these matters, the assessments are modified as follows:

Tax Taxing Sch. List Value List Value List Value Year Distri ct No. Filed Previously Assessed Detennined Herein 2004 29-0160 2 $399,430 $475,230 $163,740 2004 29-0160 3 212,190 212,190 212,190 2004 29-0160 4 322,460 340,680 432,520 2005 29-0160 2 210,650 450,510 173,180 2005 29-0160 3 174,020 174,020 174,020 2005 29-0160 4 428,620 405,830 403,050

In all other respects, the assessments stand as issued.

THIS IS THE TAX COMMISSIONER'S FINAL DETERMINATION WITH REGARD TO THESE MATTERS. NOTICE WILL BE SENT PURSUANT TO R.C. 5711.31 TO THE APPROPRIATE COUNTY AUDITOR, WHO SHALL PROCEED IN ACCORDANCE WITH R.C. 5711.32(C).

I CER'nFY THATTHIS IS A 1RUE AND ACYiRtATE COPY OF II-IE FIIVAI. DETERMINA'IIONREODRDED RY'[HE TAx COMIv1ISSiONERCS JOURNP.L /s/ Richard A. Levin

...: ,. . ^.- RiainRDALEWN ^^ .. . Richard A. Levin ^ ^- - ^ - . TA7CCAMMISSIONER Tax Commissioner

Aa-s 1 OHIO BOARD OF TAX APPEALS 201^ AR-8 LUWANNA A. DELANEY, GREENE COUNTY AUDITOR,

Appellant BTA Case No. 2009-M-3105

Vs.

RICHARD A. LEVIN, APPELLANT'S CORRECTIVE REPLY TAX COMMISSIONER OF OHIO, TO YSI, INC.'S REPLY BRIEF FILED AND YSI, iNC., ON OR ABOUT APRIL 5, 2010

Appellees

Now comes Luwanna A. Delaney, by and through Counsel, and hereby submits this

corrective reply to the Reply Brief filed on or about April 5, 2010. YSI, Inc. argues that

this appeal was filed by Appellant out of time and refers to a Final Determination made

by the Tax Commissioner on May 28, 2009. But this is not what Appellant is appealing.

Appellant's Notice of Appeal specifically states that Appellant is appealing document

attached to that Notice, which is the Final Assessment Certificate of Valuation made and

dated October 9, 2009. Thus Appellant's filing date of October 27, 2009 is well within

the 60-day deadline set by ORC 5717.02.

Respectfiully submitted,

Susan L. Goldie (#0018439) Assistant Prosecuting Attorney For Greene County Attorney for Luwanna A. Delaney Greene County Auditor 61 Greene Street, Suite 200 Xenia, OH 45385 Telephone: (937) 562-5250 Facsimile: (937) 562-5107 A'5z CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was sent by regular U.S. mail this 6' day of April, 2010 to Ryan P. O'Rourke, Assistant Attorney General, Counsel for

Richard A. Levin, Tax Commissioner of Ohio, at the address of 30 East Broad Street, 25 th

Floor, Columbus, OH 43215 and to Thomas E. DeBrosse, Attorney for YSI, Inc., at the address of Thomson Hine LLP, 2000 Courthouse Plaza NE, Dayton, Ohio 45402.

Susan L. Goldie (#0018439)

A43 OHIO BOARD OF TAX APPEALS

Luwanna A. Delaney, CASE NO. 2009-M-3105 Greene County Auditor, (PERSONAL PROPERTY TAX Appellant, DECISION AND ORDER vs.

Richard A. Levin, Tax Commissioner of Ohio,

Appellee.

APPEARANCES:

For the Appellant- Stephen K. Haller Greene County Prosecuting Attomey Susan L. Goldie Assistant Prosecuting Attorney 61 Greene Street, Second Floor Xenia, Ohio 45385

For the Appellee- Richard Cordray Tax Commissioner Ohio Attorney General Ryan P. O'Rourke Assistant Attomey General Taxation Section 30 E. Broad Street, 25t' Floor Columbus, Ohio 43215

For the - Thompson Hine LLP Taxpayer' Thomas E. DeBrosse 2000 Courthouse Plaza NE 10 West Second Street Dayton, Ohio 45402 Entered APR 202010 Ms. Margulies, Mr. Johrendt, and Mr. Dunlap concur.

This cause and matter comes to be consid^red by the Board of Tax Appeals

I The affected taxpayer has not formally sought to intervene in this matter, but has submitted a brief supporting the Tax Commissioner's motion to dismiss, albeit on other grounds. Given its interest in the ultimate outcome of this appeal, the board will provide notice of its decision to the property owner. A-sy upon a purported notice of appeal filed on October 27, 2009, by the above-named appellant. It appears that appellant, the Greene County Auditor, seeks to challenge certain assessment certificates issued to YSI, Inc., a corporation with personal property located in Greene County. On March 17, 2010, counsel for the appellee Tax

Commissioner filed a motion to dismiss the auditor's appeal, asserting that this board lacks jurisdiction to consider her claims. On April 2, 2010, the taxpayer, YSI, Inc., filed a memorandum supporting the Tax Commissioner's motion to dismiss, and argues an additional ground for dismissal for a portion of the auditor's appeal. The taxpayer argues that the auditor's notice of appeal is untimely as to the challenges to 2004 and 2005, as the auditor did not file her appeal within 30 days of the Tax Commissioner's final determination, which was issued May 28, 2009.

We first dispose of the taxpayer's claim that the appeal was untimely. We

note that there are four certificates of valuation attached to the notice of appeal. The first two are titled "Final Assessment Certificate of Valuation" and cover return year 2007.

The second two are titled "Corrected Assessment Certificate of Valuation" and cover

return years 2004 and 2005. The taxpayer does not challenge the timeliness of the filing

of the challenges to the 2007-tax year final assessment certificates.2

2 Had the appellee taxpayer challenged the timeliness of the auditor's notice of appeal regarding the 2007-tax year fmal assessment, we would conclude that the auditor's appeal was filed within the time limitations of R.C. 5717.02. According to R.C. 5711.25, preliminary assessments are issued by the tax commissioner to county auditors the second Monday of August. The preliminary assessment certificates are based upon returns filed by a taxpayer and generally become final two years later unless the taxpayer files an application for final assessment pursuant to R.C. 5711.26. If a taxpayer seeks final assessment, the Tax Commissioner will review the taxpayer's claim and issue a fmal assessment certificate which may be appealed pursuant to R.C. 5717.02 within 60 days of the issuance of the final assessment certificate. It appears that the two final assessment certificates for tax year 2007 were mailed to the auditor on October 9, 2009.

2 AwYT Challenges to a personal property tax return may take two different paths.

If a taxpayer seeks to amend a previously filed personal property tax return, it may seek final assessment within the time limitations of R.C. 5711.25. R.C. 5711.26. If the Tax

Commissioner audits a personal property tax return filed by a taxpayer and determines that property was omitted or incorrectly returned, he may proceed under R.C. 5711.31 to issue an assessment. That assessment must be challenged before the Tax Commissioner by filing a written petition for reassessment. It is the Tax Commissioner's final determination upon that petition for reassessment which is subject to appeal to this board.

Once the Tax Commissioner's determination becomes final, either by operation of law or decision upon appeal, if the ultimate determination orders correction of the original assessment, the notification "may be in the form of a corrected assessment certificate." R.C. 5711.31. The auditor has attached corrected assessment certificates to her notice of appeal. Those certificates identify a"certificate of determination no. 07-

00318 dated 5/28/09" and a "certificate of determination no. 07-00319 dated 5/28/09."

The taxpayer has attached a final determination to his memorandum in support of the motion to dismiss, which identifies the same case numbers, 07-00318 and 07-00319.

Therefore, the board concludes that the corrected assessment certificates of valuation were issued pursuant to a final determination dated May 28, 2009. The Tax

Commissioner was required to transmit a copy of his final determination to the

"applicable county auditor." Thus, the taxpayer is correct - the time for filing a notice of appeal began May 28, 2009. R.C. 5717.02. Thus, a notice of appeal filed October 27,

3 `}46 2009 is outside the time permitted by R.C. 5717.02. Accordingly, the challenges to the final determinations for tax years 2004 and 2005 must be dismissed as untimely filed.

As to the 2007 final assessment certificate, we agree with the Tax

Conunissioner that the auditor's appeal does not meet the jurisdictional requirements of

R.C. 5717.02. In DeWeese v. Zaino, 100 Ohio St.3d 324, 2003-Ohio-6502, the Ohio

Supreme Court held that a county auditor's right to appeal a personal property tax final determination is dependent upon compliance with R.C 5717.02, including the specificity requirement. See, also, NBC-USA Hous., Inc.-Five v. Levin, Slip Opinion No. 2010-

Ohio-1553. In Delaney v. Levin (Mar. 16, 2010), BTA No. 2009-V-3139, unreported, this board held that a similar appeal from the Greene County Auditor was invalid because the notice of appeal failed to state with any specificity the errors claimed by the auditor.

The auditor argues that she is unable to be more specific because she is not given access to the information which is the basis of a personal property tax filing.

While an auditor is given the right to appeal under R.C. 5717.02, no statutory authority exists for an auditor to access the tax records which are the sources of the assessments issued by the Tax Commissioner and collected by the county. The auditor claims that her

actions are taken in an effort to protect the general fund for Greene County "necessitated

by the unreasonable and unwarranted reassessment by the Tax Commissioner."

Appellant's memorandum contra to motion to dismiss, at unmarked p. 2. The auditor

argues that to dismiss her appeal for failure to specify error renders ineffective the rights

4 A-57 provided to an auditor in R.C. 5715.02.

This claim was addressed in DeWeese, supra, where the.court held with respect to reviews of petitions for reassessment before the Tax Commissioner:

"If the county auditors desire authority to challenge intercounty personal property tax returns on issues not determined by the Tax Commissioner, they will have to seek that authority from the General Assembly."

While the path by which the auditor seeks to challenge a personal property tax return is somewhat different, the result is the same. The General Assembly has provided county auditors with no avenue to review underlying tax documents - that review is left to the purview of the Tax Commissioner. Without such an avenue, a county auditor is necessarily restricted from information upon which the Tax Commissioner relied in determining a personal property tax challenge. Nevertheless, upon appeal, a county auditor must specify the errors complained of. The Board of Tax Appeals, as a quasi- judicial administrative agency, must strictly comply with the tax laws. See Zephyr Room

Inc. v. Bowers (1955), 164 Ohio St. 287; Fineberg v. Kosydar (1975), 44 Ohio St.2d 1;

Clippard Instrument v. Lindley (1977), 50 Ohio St.2d 71.

The auditor has not followed the conditions imposed by R.C. 5717.02.

Therefore, it is the decision of the Board of Tax Appeals that the present appeal is dismissed. I hereby certify the foregoing to be a true and complete copy of the action taken by the Board of Tax Appeals of the State of Ohio and entered upon its journal this day, with respect to the captioned matter.

Sally F. Van Meter, Board Secretary

^^^ 1 Page 2 of 25

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106 Courts Supreme Court of Ohio. 10611 Establishment, Organization, and Proced- The STATE of Ohio, Appellee, ure V. 1061](G) Rules of Decision BODYKE et al., Appellants. 106k88 Previous Decisions as Controlling No. 2008-2502. or as Precedents 106k89 k. In General. Most Cited Cases Submitted Nov. 4, 2009. Stare decisis applies to rulings rendered in regard to Decided June 3, 2010. specific statutes, but it is limited to circumstances THE STATE OF OHIO, APPELLEE, v. BO- where the facts of a subsequent case are substan- DYKE ET AL., APPELLANTS. tially the same as a former case. Background: Three sex offenders filed separate petitions contesting their classification as Tier III [2] Courts 106 C°.G`='89 sex offenders under the amended version of the sex offender registration law. The Court of Common 106 Courts Pleas, Huron County, Nos. CRI-99-0463, CRI- 10611 Establishment, Organization, and Proced- 99-256, and CRI-93-630, denied the petitions. Of- ure fenders appealed, and the appeals were consolid- 106II(G) Rules of Decision ated. The Court of Appeals, Handwork, J., 2008 106k88 Previous Decisions as Controlling WL 5148003, affirmed. Offenders requested review or as Precedents which was granted. 106k89 k. In General. Most Cited Cases Stare decisis is not inflexibly applicable to constitu- Holdings: The Supreme Court, O'Connor, J., held tional interpretation. that: (1) provisions of statute that required Attorney [3] Courts 106 E>^89 General to reclassify sex offenders who were already classified by judges violated the separation- 106 Courts of-powers doctrine, and 1061I Establishment, Organization, and Proced- (2) provisions were severable. ure 10611(G) Rules of Decision Reversed. 106k88 Previous Decisions as Controlling or as Precedents 106k89 k. In General. Most Cited Cases Pfeifer, J., concurred in the syllabus and judgment. Stare decisis remains a controlling doctrine in cases presenting questions on the law of contracts, prop- erty, and torts, but it is not controlling in cases O'Donnell, J., concurred in part, dissented in part, presenting a constitutional question. and filed opinion. [4] Constitutional Law 92 €=2330

Cupp, J., dissented and filed opinion. 92 Constitutional Law 92XX Separation of Powers West Headnotes

[1] Courts 106 ^89

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92XX(A) In General opted constitutions, completely distributing it to ap- 92k2330 k. In General. Most Cited Cases propriate departments; they vested the legislative First, and defining, principle of a free constitutional power in the General Assembly, the executive government is the separation of powers. power in the Governor, and the judicial power in the courts. Const. Art. 2, § 1, Art. 3, § 5, Art. 4, § 1. [5] Constitutional Law 92 ^2330 [8] Constitutional Law 92 (&----^2332 92 Constitutional Law 92XX Separation of Powers 92 Constitutional Law 92XX(A) In General 92XX Separation of Powers 92k2330 k. In General. Most Cited Cases 92XX(A) In General While Ohio, unlike other jurisdictions, does not 92k2332 k. Encroachment in General. have a constitutional provision specifying the Most Cited Cases concept of separation of powers, this doctrine is im- Essential principle underlying the policy of the di- plicitly embedded in the entire framework of those vision of powers of government into three depart- sections of the Ohio Constitution that define the ments is that powers properly belonging to one of substance and scope of powers granted to the three the departments ought not to be directly and com- branches of state government. pletely administered by either of the other depart- ments, and further that none of them ought to pos- [6] Constitutional Law 92 Cz^2330 sess directly or indirectly an overruling influence over the others. 92 Constitutional Law 92XX Separation of Powers [9] Constitutional Law 92 H=2453 92XX(A) In General 92k2330 k. In General. Most Cited Cases 92 Constitutional Law 92XX Separation of Powers Constitutional Law 92 C=2331 92XX(C) Judicial Powers and Functions 92XX(C)1 In General 92 Constitutional Law 92k2453 k. Determination of Constitu- 92XX Separation of Powers tionality of Actions of Other Branches in General. 92XX(A) In General Most Cited Cases 92k2331 k. Purposes of Separation of Powers. Most Cited Cases Constitutional Law 92 C';--^2455 Separation of powers doctrine represents the consti- tutional diffusion of power within tripartite govern- 92 Constitutional Law ment; it was a deliberate design to secure liberty by 92XX Separation of Powers simultaneously fostering autonomy and comity, as 92XX(C) Judicial Powers and Functions well as interdependence and independence, among 92XX(C)1 In General the three branches. 92k2455 k. Protection of Constitution- al Rights. Most Cited Cases [7] Constitutional Law 92 C;;P2330 Judiciary has both the power and the solemn duty to determine the constitutionality and validity of acts 92 Constitutional Law by other branches of the government and to ensure 92XX Separation of Powers that the boundaries between branches remain intact. 92XX(A) In General 92k2330 k. In General. Most Cited Cases [10] Constitutional Law 92 C=2455 The people, possessing all governmental power, ad-

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92 Constitutional Law which case the fundamental principles of a free 92XX Separation of Powers constitution are subverted. 92XX(C) Judicial Powers and Functions 92XX(C)1 In General 1131 Constitutional Law 92 C=2330 92k2455 k. Protection of Constitution- al Rights. Most Cited Cases 92 Constitutional Law Judiciary protects the borders separating the three 92XX Separation of Powers branches of government, not for self-reverence, but 92XX(A) In General in order to ensure the security and harmony of the 92k2330 k. In General. Most Cited Cases government, and to avoid the evils that would flow Constitutional system imposes upon the three from legislative encroachment on judicial inde- branches of govemment a degree of overlapping re- pendence. sponsibility, a duty of interdependence as well as independence. [Il] Constitutional LawA2 $=2330 [14] Constitutional Law 92 C=2331 92 Constitutional Law 92XX Separation of Powers 92 Constitutional Law 92XX(A) In General 92XX Separation of Powers 92k2330 k. In General. Most Cited Cases 92XX(A) In General Separation of powers doctrine recognizes that gov- 92k2331 k. Purposes of Separation of ernment is comprised of equal branches that must Powers. Most Cited Cases work collectively toward a common cause; and in Design of the tripartite model of government was doing so, the Constitution permits each branch to intended to serve as a self-executing safeguard have some influence over the other branches in the against the encroachment or aggrandizement of one development of the law. branch at the expense of the other.

[12] Constitutional Law 92

92 Constitutional Law 92 Constitutional Law 92XX Separation of Powers 92XX Separation of Powers 92XX(A) In General 92XX(B) Legislative Powers and Functions 92k2330 k. In General. Most Cited Cases 92XX(B)2 Encroachment on Judiciary 92k2350 k. In General. Most Cited Constitutional Law 92 C=,2331 Cases General Assembly cannot require the courts to treat 92 Constitutional Law as valid laws those wbich are unconstitutional; if 92XX Separation of Powers this could be permitted, the whole power of the 92XX(A) In General government would at once become absorbed and 92k2331 k. Purposes of Separation of taken into itself by the Legislature. Powers. Most Cited Cases Separation of powers does not contemplate three 1161 Constitutional Law 92 C=2350 branches operating in isolation, each without influ- ence over the others; rather, the doctrine is de- 92 Constitutional Law signed to protect against whole power of one de- 92XX Separation of Powers partment being exercised by the same hands which 92XX(B) Legislative Powers and Functions possess the whole power of another department, in 92XX(B)2 Encroachment on Judiciary 92k2350 k. In General. Most Cited

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Cases through statutory conditions not in effect when the Courts must be wary that the Legislature, in dis- judicial branch gave its last word in the particular charging its own duties, does not accrete power and case, regardless of the policy behind the legislation. encroach on the province of the judiciary. [19] Constitutional Law 92 C=^2384 [17] Constitutional Law 92 f^2625(1)°.^ 92 Constitutional Law 92 Constitutional Law 92XX Separation of Powers 92XX Separation of Powers 92XX(B) Legislative Powers and Functions 92XX(D) Executive Powers and Functions 92XX(B)2 Encroachment on Judiciary 92k2622 Encroachment on Judiciary 92k2381 Imposition of Legislative 92k2625 Executive Exercise of Stat- Preference in Particular Proceedings utory Authority as Encroaching on Judiciary 92k2384 k. Overtutning Judgment. 921C2625(1) k. In General. Most Most Cited Cases Cited Cases Judgment which is final by the laws existing when it is rendered cannot constitutionally be made sub- Mental Health 257A C=433(2) ject to review by a statute subsequently enacted.

257A Mental Health [20] Constitutional Law 92

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92k2622 Encroachment on Judiciary sex offenders, and the remainder of the statute, 92k2625 Executive Exercise of Stat- which was capable of being read and of standing utory Authority as Encroaching on Judiciary alone, was left in place. R.C. §§ 2950.031, 2950.032. 92112625(1) k. In General. Most Cited Cases [25] Statutes 361 G=,64(1) Congress cannot vest review of the decisions of Article III courts in officials of the executive 361 Statutes branch or interfere with the judiciary by command- 3611 Enactment, Requisites, and Validity in ing the federal courts to open final judgments. General 361164 Effect of Partial Invalidity [22] Constitutional Law 92 C=12450 361k64(1) k. In General. Most Cited Cases Severance is suitable when: (1) constitutional and 92 Constitutional Law the unconstitutional parts are capable of separation 92XX Separation of Powers so that each may be read and may stand by itself, 92XX(C) Judicial Powers and Functions (2) unconstitutional part is not so connected with 92XX(C)1 In General the general scope of the whole as to make it im- 92k2450 k. Nature and Scope in Gen- possible to give effect to the apparent intention of eral. Most Cited Cases the Legislature if the clause or part is stricken out, Judicial power resides exclusively in the judicial and (3) insertion of words or terms is necessary in branch. Const. Art. 4, §§ 1, 3(B)(2). order to separate the constitutional part from the unconstitutional part, and to give effect to the [23] Courts 106 <>^240 former only.

106 Courts West Codenotes 106VI Courts of Appellate Jurisdiction Held UnconstitutionalR.C. 2950.031, 2950.032 106VI(B) Courts of Particular States APPEAL from the Court of Appeals for Huron 106k240 k. Ohio. Most Cited Cases County, Nos. H-07-040, H-07-041, and H-07-042, Power to review and affirm, modify, or reverse oth- 2008-Ohio-6387. er courts' judgments is strictly limited to appellate SYLLABUS OF THE COURT courts. Const. Art. 4, § 3(B)(2). *1 1. The power to review and affu-m, modify, or [24] Statutes 361 "=64(6) reverse other courts' judgments is strictly limited to appellate courts. (Section 3(B)(2), Article IV, Ohio 361 Statutes Constitution, applied.) 3611 Enactment, Requisites, and Validity in General 2. R.C. 2950.031 and 2950.032, which require the 361k64 Effect of Partial Invalidity attorney general to reclassify sex offenders who 361k64(6) k. Public Offenses, Prosecu- have already been classified by court order under tions, and Punishments. Most Cited Cases former law, impermissibly instruct the executive Provisions in statute which were unconstitutional branch to review past decisions of the judicial because they required Attorney General to reclassi- branch and thereby violate the separation-of-powers fy sex offenders who were already classified by doctrine. judges were severable; by excising the unconstitu- tional component, court did not detract from the 3. R.C. 2950.031 and 2950.032, which require the overriding objectives of the General Assembly, i.e., to better protect the public from the recidivism of

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attorney general to reclassify sex offenders whose Richard Cordray, Attorney General, Benjamin C. classifications have already been adjudicated by a Mizer, Solicitor General, Alexandra T. Schimmer, court and made the subject of a final order, violate Chief Deputy Solicitor General, David M. Lieber- the 'separation-of-powers doctrine by requiring the man, Deputy Solicitor, Christopher P. Conomy, As- opening of final judgments. sistant Solicitor, and James A. Hogan, urging af- Russell V. Leffler, Huron County Prosecuting At fuznance for amicus curiae Ohio Attorney General. torney, for appellee.

Gamso, Hehnick & Hoolahan and Jeffrey M. O'CONNOR, J. Gamso, Toledo; and Hiltz, Wiedemann, Allton & Koch Co., L.P.A., and John D. Allton, Norwalk, for *2 O'CONNOR, J. appellants. {¶ 1} In this appeal,rN' we decide the constitu- , Elizabetli C. Radigan, Columbus, and tionality of the current version of R.C. Chapter Louis A. Chaiten, Cleveland, urging reversal for 2950, as amended by 2007 Am.Sub.S.B. No. 10 amici curiae Iowa Coalition Against Sexual As- ("the Adam Walsh Act" or "the AWA"), as those sault, Association for the Treatment of Sexual Ab- provisions apply to sex offenders whose cases were users, Jacob Wetterling Resource Center, Detective adjudicated prior to its enactment. Robert A. Shilling, California Coalition Against Sexual Assault, Texas Association Against Sexual {¶ 2} Although we discharge our duty with great Assault, and National Alliance to End Sexual Viol- respect for the role of the legislature, Kennedy v. ence. Mendoza-Martinez (1963), 372 U.S. 144, 159, 83 S.Ct. 554, 9 L.Ed.2d 644, for the reasons that fol- Robert L. Tobik, Cuyahoga County Public Defend- low we are compelled to fmd that R.C. 2950.031 er, and John T. Martin and Cullen Sweeney, Assist- and 2950.032, the reclassification provisions in the ant Public Defenders, urging reversal for amicus AWA, are unconstitutional because they violate the curiae Cuyahoga County Public Defender. separation-of-powers doctrine. As a remedy, we strike R.C. 2950.031 and 2950.032, hold that the re- Ian N. Friedman & Assoc., L.L.C., and Ian N. classifications of sex offenders by the attorney gen- Friedman, Cleveland, urging reversal for amicus eral are invalid, and reinstate the prior judicial clas- curiae Ohio Association of Defense Lawyers. sifications of sex offenders.

Timothy Young, Ohio Public Defender, and Kelly K. Curtis and Katherine A. Szudy, Assistant Public 1. Relevant Background Defenders, urging reversal for amicus curiae Ohio Public Defender. A. R.C. Chapter 2950 William D. Mason, Cuyahoga County Prosecuting Attonrey, and Mary H. McGrath, Assistant Prosec- uting Attorney, urging affirmance for amicus curiae {¶ 3} R.C. Chapter 2950, Ohio's law goveming the Cuyahoga County Prosecuting Attorney. registration and classification of sex offenders and the ensuing community-notification requirements, Ron O'Brien, Franklin County Prosecuting Attor- has evolved substantially since its inception in ney, and Steven L. Taylor, Assistant Prosecuting 1963. See former R.C. Chapter 2950, 130 Ohio Attorney, urging affirmance for amicus curiae state Laws 669. The original version of the statute was of Ohio. seldom used, Sears v. State, Clermont App. No. CA2008-07-068, 2009-Ohio-3541, 2009 WL 2140032, Q 23, and it existed without amendment

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for three decades. hensive registration and classification system for sex offenders. 146 Ohio Laws, Part II, 2560. In or- {¶ 4} In 1994, however, a convicted sex offender in der to accomplish its goals, Ohio's Megan's Law New Jersey abducted, raped, and killed a neighbor's provided for offender registration, classification, young child, Megan Kanka. See State v. Williams and community notification. Cook, 83 Ohio St.3d at (2000), 88 Ohio St.3d 513, 516, 728 N.E.2d 342; 407, 700 N.E.2d 570. State v. Cook (1998), 83 Ohio St.3d 404, 405, 700 N.E.2d 570. In the wake of that notorious crime, {¶ 8) In 1997, we unanimously upheld the applica- New Jersey gained national recognition by enacting tion of Megan's Law over retroactivity and ex post a law requiring registration of sex offenders and no- facto claims?"' State v. Cook, 83 Ohio St3d 404, tification to the community of the offender's pres- 700 N.E.2d 570. ence. The law became known as "Megan's Law." Wallace v. State (Ind.2009), 905 N.E.2d 371, 374. {¶ 9} After Cook, we addressed constitutional chal- The constitutionality of the New Jersey legislation lenges to Megan's Law based on theories other than was upheld by the New Jersey Supreme Court in ex post facto and retroactivity. We rejected, unan- Doe v. Poritz (1995), 142 N.J. 1, 662 A.2d 367. imously, the suggestions that Megan's Law imper- missibly intruded on the individual's rights to main- {¶ 5} Federal legislation followed later that year tain privacy, to acquire property, to pursue an occu- when Congress enacted the Jacob Wetterling pation, and to maintain a favorable reputation. Wil- Crimes Against Children and Sexually Violent Of- liams, 88 Ohio St.3d at 524-527, 728 N.E.2d 342. fender Registration Act, Section 14071, Title 42, We also rejected arguments based on double jeop- U.S.Code ("the Jacob Wetterling Act"). The Jacob ardy, bill of attainder, equal protection, and vague- Wetterling Act focused on requiring states to imple- ness. Id. at 528-534, 728 N.E.2d 342. ment a registry of sex offenders and those who commit crimes against children. People v. Cintron {¶ 10} The following year, we were confronted (2006), 13 Misc.3d 833, 836, 827 N.Y.S.2d 445, fn. with a separation-of-powers argument in State v. 6. Two years after its enactment, the Act was Thompson (2001), 92 Ohio St.3d 584, 752 N.E.2d amended to require that states add community-noti- 276. We rejected it unanimously. fication provisions. Id. The Jacob Wetterling Act then became better known as the federal "Megan's {¶ 11} Thompson addressed whether former R.C. Law." Id. 2950.09(B)(2) violated "the separation-of-powers doctrine because it encroaches upon the judiciary's {¶ 6} The federal Megan's Law mandates that the fact-fmding authority." Id. at 585, 752 N.E.2d 276. states adopt registration and community-notifica- More specifically, we addressed the language in tion provisions goveming sex offenders or face the former R.C. 2950.09(B)(2) that required a judge to loss of federal crime-control funds. Section 14071, consider certain factors before determining whether Title 42, U.S.Code. The General Assembly enacted an offender was a sexual predator. Ohio's version of Megan's Law in 1996. Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, {¶ 12) Our conclusion that the separation- 2560, 2601 t"2 of-powers doctrine was not violated turned on our view that the statute did not divest the court of its fact-finding powers. ld., 92 Ohio St.3d at 587-588, 1. Ohio's Megan's Law 752 N.E.2d 276. We observed that the statutory factors provided an important framework that as- *3 {q 7} Megan's Law repealed prior versions of sisted judges in making the sexual-predator determ- R.C. Chapter 2950 and created Ohio's first compre- ination and that the factors, as guidelines, "provide

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consistency in the reasoning process." Id. at 587, er-classification hearing under the civil manifest- 752 N.E.2d 276. But more importantly, we recog- weight-of-the-evidence standard). nized that the guidelines did not control the judge's discretion or require a judge to assign a particular {¶ 16) The dissent in Ferguson criticized the ma- weight to certain factors. Thus, we found no im- jority's reliance on Cook :"R.C. Chapter 2950 has proper interference with the judge's fact-finding been amended [since Cook ]. The simple registra- powers. tion process and notification procedures are now different from those considered in Cook and in [ {¶ 13} We f'urther held that the factors themselves Williams, 88 Ohio St.3d 513, 2000-Ohio-428, 728 were nonexhaustive, because the statute directed N.E.2d 342]. R.C. Chapter 2950 has been trans- the judge to "consider all relevant factors, including formed from remedial to punitive ** *.°' Ferguson, but not limited to" the statutory factors. Id. at 588, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 752 N.E.2d 276. Thus, we concluded, the statute 110, ¶ 45 (Lanzinger, J., dissenting). More specific- did not violate the separation-of-powers doctrine, ally, the dissent explained that, since Cook, the because the judge retained discretion to consider "sexual predator" label became permanent, the re- any relevant evidence and to determine what gistration requirements were made more demand- weight, if any, to assign to that evidence. Id. at 588, ing, the conununity-notification and residency-re- 752 N.E.2d 276. striction provisions were made more extensive, and sheriffs' authority was expanded to include the *4 {¶ 14) Ten years after our decision in Cook, we power to obtain landlord verification that the of- again addressed Megan's Law in State v. Ferguson, fender lived at a registered address. Ferguson at ¶ 46. 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110. In that case, a convicted rapist classified as a {¶ 17} Even as debate over the S.B. 5 amendments sexual predator challenged the constitutionality of was taking place here, however, the General As- the amendments enacted in Am.Sub.S.B. No. 5 sembly was reviewing the law and enacting a new ("S.B. 5"), 150 Obio Laws, Part IV, 6558, scheme, the "Adam Walsh Act," R.C. Chapter 6687-6702 (eff. July 31, 2003). The claims in Fer- 2950. That act, not Megan's Law and its amend- guson renewed the challenge against the retroactive ments, forms the basis of this appeal. application of the amended requirements.

{¶ 15} Despite the significant changes wrought by B. Ohio's Adam Walsh Act S.B. 5, we upheld the S.B. 5 amendments. In so do- ing, we rejected Ferguson's assertions that the *5 {¶ 18) In 2006, Congress passed the Adam amendments violated the Ex Post Facto Clause of Walsh Child Protection and Safety Act ("Adam the United States Constitution (Section 10, Article Walsh Act"), P.L. No. 109-248, 120 Stat. 587, codi- I) and the retroactivity provision in Section 28, Art- fied at Section 16901 et seq., Title 42, U.S.Code. icle lI of the Ohio Constitution. We relied on our The Act created national standards for sex-offender decision in Cook, the Supreme Court's decision in registration, community notification, and classifica- Smith v. Doe (2003), 538 U.S. 84, 123 S.Ct. 1140, tion. It divides sex offenders into three categories 155 L.Ed.2d 164, and other state courts' decisions or "tiers"-Tier I, Tier II, and Tier III-based solely to find that Megan's Law remained a remedial stat- on the crime committed. Section 16911. The dura- ute. Ferguson at ¶ 29-40. Ferguson, however, was tion of the offender's obligation to update his per- not unanimous. See also State v. Wilson, 113 Ohio sonal information for the registry depends on his St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264 tier classification. Section 16915. (holding that an appellate court must review a trial court's determination in a sex-offend-

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{¶ 191 Section 16912(a) directs every jurisdiction al and social history are no longer relevant PN5 to maintain a sex-offender registry conforming to the requirements of the Act. And to ensure compli- {¶ 23} After tier classification is completed, the of- ance, Congress directed that states that did not ad- fender is required to register according to the clas- opt the Adam Walsh Act risked losing ten percent sification. R.C. 2950.04(A)(1). The registration re- of certain federal crime-control funds that would quirements under the AWA vary depending on the otherwise be allocated to them. Section 16925(a). tier in which the offender is classified. R.C. 2950.06(B) (frequency of duty to verify personal {¶ 201 The following year, the General Assembly information differs depending on tier); R.C. enacted 2007 Am.Sub.S.B. No. 10 .^4 S.B. 10 re- 2950.07 (duration of duty to comply with registra- pealed Megan's Law and replaced it with a new, tion/verification requirements depends on tier). retroactive scheme that includes the tier system re- quired by Congress. R.C. Chapter 2950. *6 {¶ 24) Under Megan's Law, if an offender was classified at the lowest risk level, i.e., as a sexually {¶ 21} The former categories of sexually oriented oriented offender, he was required to register annu- offender, habitual sex offender, and sexual predator ally for a period of ten years. Former R.C. 2950.07 no longer exist, nor is the court required to hold (B)(3) and 2950.06(B)(2), 146 Ohio Laws, Part II, classification hearings as before. Instead, offenders 2617, 2613. No community notification followed. are classified as Tier I, Tier II, or Tier III sex of- Under the AWA, although there is still no com- fenders (or child-victim offenders) based solely on munity notification for the lowest risk offenders, the offender's offense. R.C. 2950.01. Specified offi- i.e., offenders classified into Tier I, those offenders cials are required to notify existing offenders of must verify their personal information annually for their duties and new tier classification. R.C. 15 years rather than the ten years required under 2950.03, .031, and.032. Megan's Law. R.C. 2950.07(B)(3).

{¶ 22} Significantly for our purposes here, under {¶ 25) Under Megan's Law, an offender who posed the AWA judges no longer have discretion to de- an intermediate risk, i.e., less than a sexual predator termine which classification best fits the offender. but more than a sexually oriented offender, was Id. Instead, a few months before the AWA's effect- labeled a habitual sexual offender. See former R.C. ive date, the General Assembly directed the attor- 2950.01(B), 146 Ohio Laws, Part II, 2601. Habitual ney general to reclassify existing offenders. R.C. sexual offenders were required to verify their per- 2950.031(A) and 2950.032(A)(1). Offenders who sonal information annually for 20 years, former had registered before December 1, 2007, were to be R.C. 2950.07(B)(2) and 2950.06(B)(2), 146 Ohio reclassified as Tier I, II, or III sex offenders accord- Laws, Part II, 2617, 2613, and community notifica- ing to the new statutes. Id. Tiers are assigned solely tion was required only if the judge deemed it appro- by reference to the offense. See R.C. 2950.01(E), priate. Former R.C. 2950.11(A) and (F), 146 Ohio (F), and (G). The entire reclassification process is Laws, Part II, 2627, 2630. In the AWA scheme, the administered by the attorney general, with no in- intermediate risk offender is placed in Tier II. Tier volvement by any court. There is no individualized II offenders must verify every 180 days for 25 assessment. No consideration is given to any of the years, R.C. 2950.07(B)(2) and 2950.06(B)(2), but other factors employed previously in classification community notification is not required. R.C. hearings held pursuant to Megan's Law. Id. As a 2950.11(F) (community notification limited to Tier result, the trial court is stripped of any power to en- III offenders). gage in independent fact-finding to determine an offender's likelihood of recidivism. Expert testi- {¶ 26) The sexual-predator classification was the mony is no longer presented; the offender's crimin- highest risk offender under Megan's Law. Sexual

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predators were required to register every 90 days /A\ FNb for life. Former R.C. 2950.06(B)(1) and 2950.07 (B)(1), 146 Ohio Laws, Part II, 2613 and 2616. Community notification was required. Former R.C. B. The Appeal bejbre the Court 2950.11(A), 146 Ohio Laws, Part II, 2627. Under the AWA, Tier III offenders have the same obliga- *7 {¶ 29} On October 18, 1999, appellant Bodyke tion to verify their personal information as sexual entered an agreed plea of no contest to one count of predators, R.C. 2950.06(B)(3) (every 90 days); breaking and entering in violation of R.C. 2911.13 2950.07(B)(1) (for life), and community notifica- (A) and one count of sexual battery in violation of tion is required. R.C. 2950.11(A). However, the R.C. 2907.03(A)(3). Two months later, the trial scope of registration is expanded greatly. judge sentenced him to concurrent sentences of six months' imprisonment for breaking and entering {¶ 27) Megan's Law required an offender to re- and two years' imprisonment for sexual battery. In gister with the sheriff in the county in which he addition, relying on the version of R.C. 2950.01 resides. Former R.C. 2950.04(A), 146 Ohio Laws, that was in effect at that time, he was classified as a Part II, 2609. Pursuant to the AWA, the offender sexually oriented offender, the lowest level of of- must register with the sheriff in the county in which fender under Megan's Law. As a sexually oriented he lives, the county in which he attends school, the offender, Bodyke was required to register with the county in which he is employed, any county in county sheriff every year for ten years. He was not which he is domiciled temporarily for more than subject to the community-notification provisions, three days, and even a county in another state if he however. works or attends school there. R.C. 2950.04 (A)(2(a) through (e)). When he registers, he must {¶ 30} In November 2007, eight years after Bo- provide his full name and any aliases as well as his dyke's no-contest plea and almost five years after date of birth, social security number, address, the being released from prison, the attorney general, name and address of his employer and school, the acting pursuant to the reclassification provisions in license plate of any motor vehicle he owns or oper- the AWA, notified Bodyke that he would be reclas- ates as part of his employment, his driver's license sified. Bodyke was automatically labeled a Tier III number, any professional or occupational registra- offender, which requires him to personally register tion or license, any e-mail address, and all internet with the local sheriff every 90 days for the duration identifiers or telephone numbers registered to him. of his life. Further, Bodyke is now subject to com- R.C. 2950.04(C). munity-notification provisions.

{¶ 28} Similarly, the AWA expands community- {¶ 31} He appealed to the Sixth District Court of notification requirements. In the new scheme, the Appeals, which affumed unanimously. We accep- sheriff gives notice of a Tier III offender's name, ted his discretionary appeal, 121 Ohio St.3d 1438, address, and conviction to all residents within 1,000 2009-Ohio-1638, 903 N.E.2d 1222, and now re- feet of the offender's residence. R.C. 2950.11 verse. (A)(1)(a). If the offender lives in a multiple-unit building, all residents who share a common hallway with the offender must be notified. R.C. 2950.11 II. Analysis (A)(1)(b). The AWA also forbids all sex offenders, including those who have not offended against chil- dren, from living within 1,000 feet of a school, A. Stare Decisis preschool, or child day-care facility. R.C. 2950.034

{¶ 32) The parties and amici curiae repeatedly urge that Cook and Ferguson compel a particular result

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here, and some suggest that the doctrine of stare de- Galatis arose in the context of insurance and con- cisis controls the outcome. As we have described tract law, not constitutional law. That difference is here, this court has repeatedly upheld Megan's Law significant, as we made clear in our decision in as constitutional over an array of challenges. But Rocky River, 43 Ohio St.3d at 6-10, 539 N.E.2d those decisions compel no particular result in the 103. In that case, we acknowledged that stare decis- cases before us. is "does not apply with the same force and effect when constitutional interpretation is at issue. [1] {¶ 33} Initially, we reiterate an important but (Emphasis added.) Id. often overlooked aspect of our law on stare decisis. We have held that "stare decisis applies to rulings [2] {¶ 36} We concluded in Rocky River by noting rendered in regard to specific statutes, [but] it is that the reconsideration of past decisions in the con- limited to circumstances `where the facts of a sub- stitutional realm "is not some forbidden aberration. sequent case are substantially the same as a former It is, in fact, the fulfillment of our constitutional re- case.' " Arbino v. Johnson & Johnson, 116 Ohio sponsibilities ***." Id. at 7, 539 N.E.2d 103. St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 23, Nothing in our decision in Galatis suggests other- quoting Rocky River v. State Emp. Relations Bd. wise. Rocky River retains its vitality, at least insofar (1989), 43 Ohio St.3d 1, 5, 539 N.E.2d 103. Thus, as this principle is concerned: " Stare decisis is not as a threshold question, we must determine whether inflexibly applicable to constitutional interpreta- the statute and facts presented today are the same as tion." (Emphasis sic.) Id. at 10, 539 N.E.2d 103. those presented in precedent. We are persuaded that See also Lawrence v. Texas (2003), 539 U.S. 558, the AWA is substantially different from Megan's 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 ("The doc- Law. Cook and Ferguson, the cases cited as dispos- trine of stare decisis is essential to the respect ac- itive of this appeal, did not present a separation- corded to the judgments of the Court and the stabil- of-powers challenge. And Thompson, which did, in- ity of the law. It is not, however, an inexorable volved a statutory provision not implicated in this conunand"). appeal because Thonzpson was concemed only with former R.C. 2950.09(B)(2), the provision listing [3] {¶ 37} Stare decisis remains a controlling doc- factors a judge was required to consider in determ- trine in cases presenting questions on the law of ining whether an offender is a sexual predator. 92 contracts, property, and torts, but it is not con- Ohio St.3d at 584, 752 N.E.2d 276 ("The sole issue trolling in cases presenting a constitutional ques- before this court is whether R.C. 2950.09 violates tion. Thus, in the instant appeals, stare decisis does the separation-of-powers doctrine because it en- not compel us to reach the same result we reached croaches upon the judiciary's fact-finding authority. in past decisions, including Ferguson and Cook. We fmd that it does not"). Nothing like that provi- sion can be found in the AWA. {¶ 38} We now proceed with our analysis of the important constitutional questions before us. {¶ 34} On those bases alone, we would not be ob- liged to apply those decisions to this case. But more importantly for our purposes here, we believe that B. Separation-of-Powers Doctrine there is a more vital and compelling limitation on the doctrine as it has developed in Ohio: its inap- [4] {¶ 39} The first, and defining, principle of a plicability to constitutional claims. free constitutional government is the separation of powers. Evans v. State (Del.2005), 872 A.2d 539, *8 {¶ 35} Our decision in Galatis, 100 Ohio St.3d 543. In Kilbourn v. Thompson ( 1880), 103 U.S. 216, 2003-Ohio-5849, 797 N.E.2d 1256, estab- 168, 190-191, 26 L.Ed. 377, the United States Su- lished the test for departing from precedent. But preme Court stated:

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{¶ 401 "It is believed to be one of the chief merits Govemor (Section 5, Article III, Ohio Constitution) of the American system of written constitutional , and the judicial power in the courts (Section 1, law, that all the powers intrusted to government, Article IV, Ohio Constitution).' " Norwood at ¶ 115. whether State or national, are divided into the three grand deparhnents, the executive, the legislative, [8] {¶ 44} "The essential principle underlying the and the judicial. That the functions appropriate to policy of the division of powers of govemment into each of these branches of government shall be ves- three departments is that powers properly belonging ted in a separate body of public servants, and that to one of the departments ought not to be directly the perfection of the system requires that the lines and completely administered by either of the other which separate and divide these departments shall departments, and further that none of them ought to be broadly and clearly defined. It is also essential to possess directly or indirectly an overruling influ- the successful working of this system that the per- ence over the others." State ex rel. Bryant v. Akron sons intrusted with power in any one of these Metro. Park Dist. of Summit Cty. (1929), 120 Ohio branches shall not be permitted to encroach upon St. 464, 473, 166 N.E. 407. Thus, the people spe- the powers confided to the others, but that each cified in our Constitution that "[t]he general as- shall by the law of its creation be limited to the ex- sembly shall [not] * * * exercise any judicial ercise of the powers appropriate to its own depart- power, not herein expressly conferred." Section 32, ment and no other." Article 11, Ohio Constitution. Our decisions reflect these principles. {¶ 41) As this court has observed with regard to our own state system of government: {¶ 45) We have held that "[t]he administration of justice by the judicial branch of the government *9 [5] [6] {¶ 421 "While Ohio, unlike other jurisdic- cannot be impeded by the other branches of the tions, does not have a constitutional provision spe- government in the exercise of their respective (1981), cifying the concept of separation of powers, this powers." State ex rel. Johrrston v. Taulbee doctrine is implicitly embedded in the entire frame- 66 Ohio St.2d 417, 20 0.0.3d 361, 423 N.E.2d 80, work of those sections of the Ohio Constitution that paragraph one of the syllabus. define the substance and scope of powers granted to the three branches of state government." S. Cuclid [9] {¶ 46} The judiciary has both the power and the v. Jemison (1986), 28 Ohio St.3d 157, 158-159, 28 solemn duty to detennine the constitutionality and OBR 250, 503 N.E.2d 136. The doctrine validity of acts by other branches of the govem- "represents the constitutional diffusion of power ment and to ensure that the boundaries between within our tripartite government. [I]t was a deliber- branches remain intact. State ex rel. Ohio (1999), 86 ate design to secure liberty by simultaneously fos- Academy of Trial Lawyers v. Sheward tering autonomy and comity, as well as interde- Ohio St.3d 451, 462, 715 N.E.2d 1062. "[J]urists pendence and independence, among the three have long understood that they must be wary of any branches.°" Norwood v. Horney, 110 Ohio St.3d usurpation of the powers conferred on the judiciary 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 114. by constitutional mandate and any intrusion upon the courts' inherent powers * **." Norwood, 110 [7] {¶ 43) "'"[T]he people possessing all govem- Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, mental power, adopted constitutions, completely at ¶ 115. We therefore must "jealously guard the ju- distributing it to appropriate departments." Hale v. dicial power against encroachment from the other State (1896), 55 Ohio St. 210, 214, 45 N.E. 199, two branches of government and * * * conscien- 200. They vested the legislative power of the state tiously perform our constitutional duties and con- in the General Assembly (Section 1, Article 11, tinue our most precious legacy." Sheward at 467, Ohio Constitution), the executive power in the

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715 N.E.2d 1062. v. United States (1989), 488 U.S. 361, 380-382, 109 S.Ct. 647, 102 L.Ed.2d 714, quoting The Federalist [10] {¶ 47} Our vigilance is not born of self- No. 47 (J. Cooke ed.1961) 325-326. The court re- reverence. Rather, we protect the borders separating minds us of Madison's belief that "our constitution- the three branches in order to ensure the security al system imposes upon the Branches a degree of and hannony of the government, Weaver v. Lapsley overlapping responsibility, a duty of interdepend- (1869), 43 Ala. 224, 1869 WL 503, *5, and to avoid ence as well as independence * **." Mfstretta, id. the evils that would flow from legislative encroach- ment on our independence. Lawson v. Jeffries {¶ 50} Navigating the boundaries between interde- (1873), 47 Miss. 686, 1873 WL 4108, *8. As Mont- pendence and independence of the branches is not esquieu warned, "`[w]hen the legislative and exec- always easy. But we have guideposts to aid us. utive powers are united in the same person, or in the same body of magistracy, there can be then no [14] {¶ 51) Foremost in the analysis, we recognize liberty ***. [And] there is no liberty, if the power that the Founders' design of the tripartite model was of judging be not separated from the legislative and intended to serve as "`a self-executing safeguard executive powers.' " Evans v. State, 872 A.2d at against the encroachment or aggrandizement of one 544, quoting Baron de Montesquieu, The Spirit of branch at the expense of the other.' " Y/istretta at tbe Laws (Thomas Nugent trans., 1949), fh. 39. See 382, 109 S.Ct. 647, 102 L.Ed.2d 714, quoting also Clinton v. New York (1998), 524 U.S. 417, Buckley v. Valeo (1976), 424 U.S. 1, 122, 96 S.Ct. 450, 118 S.Ct. 2091, 141 L.Ed.2d 393 (the separa- 612, 46 L.Ed.2d 659. The Supreme Court counsels tion-of-powers doctrine guards against the threat to that "this conce7n of encroachment and aggrandize- liberty posed by the concentration of power in a ment" animates judicial decisions on the separation single branch of government). of powers and arouses vigilance against the " `hydraulic pressure inherent within each of the sep- *10 [11] {¶ 48} But the doctrine also recognizes arate Branches to exceed the outer limits of its that our government is comprised of equal branches power.' " Mistretta, 488 U.S. at 382, 109 S.Ct. 647, that must work collectively toward a common 102 L.Ed.2d 714, quoting Immigration & Natural- cause. And in doing so, the Constitution permits ization Serv. v. Chadha (1983), 462 U.S. 919, 951, each branch to have some influence over the other 103 S.Ct. 2764, 77 L.Ed.2d 317. The court has "not branches in the development of the law. For ex- hesitated to strike down provisions of law that ample, the legislative branch plays an important either accrete to a single Branch powers more ap- and meaningful role in the criminal law by defining propriately diffused among separate Branches or offenses and assigning punishment, while the judi- that undermine the authority and independence of cial branch has its equally important role in inter- one or another coordinate Branch." Mistretta, id. preting those laws. [15][16] (¶ 52) Thus, while we must respect the [l2][13] {¶ 49} As the Supreme Court has ex- fact that the authority to legislate is for the General plained, the Madisonian vision of the separation of Assembly alone, we must also ensure that its legis- powers did not contemplate three branches operat- lative prerogative is not unbridled. The General As- ing in isolation, each without influence over the sembly cannot require the courts "to treat as valid others. Rather, the doctrine was designed to protect laws those which are unconstitutional. If this could against " 'the whole power of one department be permitted, the whole power of the govermnent [being] exercised by the same hands which possess would at once become absorbed and taken into it- (1905), 73 the whole power of another department,' " in which self by the Legislature." Bartlett v. State case "`the fundamental principles of a free consti- Ohio St. 54, 58, 75 N.E. 939. We must be wary that tution, are subverted.' " (Emphases sic.) Mistretta the legislature, in discharging its own duties, does

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not accrete power and encroach on the province of *." Bartlett v. State, 73 Ohio St. at 58, 75 N.E. 939. the judiciary. See also United States v. O'Grady (1874), 89 U.S. (22 Wall.) 641, 647-648, 22 L.Fd. 772 ("Judicial *11 {¶ 53} In cases specifically involving the judi- jurisdiction implies the power to hear and determ- cial branch, the Supreme Court advises vigilance ine a cause, and * * * Congress cannot subject the against two dangers: "that the Judicial Branch judgments of the Supreme Court to the re- neither be assigned nor allowed `tasks that are more examination and revision of any other tribunal or properly accomplished by [other] branches,' Mor- any other department of the govermnent"). As the rison v. Olson [1988], 487 U.S. [654] 680-681, 108 Supreme Court of California recently explained, S,Ct. [2597, 101 L.Ed.2d 569], and, second, that no "judgments cannot be deprived of their 'finality' provision of law 'impermissibly threatens the insti- through statutory conditions not in effect when the tutional integrity of the Judicial Branch. ' Commod- judicial branch gave its `last word' in the particular ity Futures Trading Comm'n. v. Schor [1986], 478 case," regardless of the policy behind the legisla- U.S. [833], at 851, 106 S.Ct. [3245, 92 L.Ed.2d tion. People v. King (2002), 27 Cal.4th 29, 35, 115 514 675]. " Mistretta, 488 O.S. at 383, 109 S.Ct. 647, Cal.Rptr.2d 214, 37 P.3d 398, citing Plaut, 102 L.Ed.2d 714. Courts also condemn legislative U.S. at 227, 230, 115 S.Ct. 1447, 131 L.Ed.2d 328. encroachments that violate the separation of powers "A judgment which is final by the laws existing by vesting officials in the executive branch with the when it is rendered cannot constitutionally be made power to review judicial decisions or by command- subject to review by a statute subsequently enacted ing that the courts reopen final judgments. Plaut v. ***." Gompf v. Wodfinger (1902), 67 Ohio St. 144, Spendthrift Farm, Inc. (1995), 514 U.S. 211, 65 N.E. 878, at paragraph three of the syllabus. See 218-219, 115 S.Ct. 1447, 131 L.Ed.2d 328. also Plaut, 514 U.S. at 222, 115 S.Ct. 1447, 131 L.Ed.2d 328, quoting The Federalist No. 81 (J. {¶ 54} With these principles in mind, we tutn to a Cooke ed.1961) 545 (" `A legislature without ex- key aspect of the AWA-the reclassification scheme. ceeding its province cannot reverse a determination That scheme requires the attomey general to reclas- once made, in a particular case * * * ' "). The re- sify offenders who previously were classified by classification provisions violate these bedrock prin- Ohio judges according to the provisions in Megan's ciples. Law and its precursor. [20] {¶ 561 The reclassification scheme in the AWA works to "legislatively vacate[ ] the settled 1. The reclassification provisions violate the separ- and journalized fmal judgments of the judicial ation-of-powers doctrine branch of government" State v. Russell, Trumbull App. No. 2008-T-0074, 2009-Ohio-5213, 2009 WL [17][18][19] {¶ 55} The AWA's provisions govern- 3154898, ¶ 93 (Grendell, J., concurring in judgment ing the reclassification of sex offenders already only). The legislative attempt to reopen joumalized classified by judges under Megan's Law violate the fmal judgments imposing registration and com- separation-of-powers doctrine for two related reas- munity-notification requirements on offenders so ons: the reclassification scheme vests the executive that new requirements may be imposed suffers the branch with authority to review judicial decisions, same constitutional infirmity. "It does not matter and it interferes with the judicial power by requir- that the legislature has the authority to enact or ing the reopening of fmal judgments. It is well amend laws requiring sex offenders to register or settled that a legislature cannot enact laws that re- that the current Sex Offender Act does not order the visit a final judgment. We have held for over a cen- courts to reopen final judgments. The fact remains tury that "the Legislature cannot annul, reverse, or that the General Assembly `cannot annul, reverse, modify a judgment of a court already rendered * *

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or modify a judgment of a court already rendered.' ecutive branch the authority to revisit a judicial de- Bartlett, 73 Ohio St. at 58, 75 N.E. 939. termination. [Reclassification], as a practical matter, nullifies that part of the court's [initial classification] judg- {¶ 60) Thus, we conclude that R.C. 2950.031 and ment [in this case], ordering [the offender] to re- 2950.032, which require the attorney general to re- gister for a period of ten years as a sexually ori- classify sex offenders who have already been clas- ented offender. To assert that the General Assembly sified by court order under former law, impermiss- has authority to create a new system of classifica- ibly instruct the executive branch to review past de- tion does not solve the problem that [the] original cisions of the judicial branch and thereby violate classification constituted a final judgment. Tbere is the separation-of-powers doctrine. no exception to the rule that the final judgments may not be legislatively annuled in situations where *13 {¶ 61) We further conclude that R.C. 2950.031 the Legislature has enacted new legislation." State and 2950.032, which require the attotney general to v. Grate, Trumbull App. No. 2008-T-0058, reclassify sex offenders whose classifications have 2009-Ohio-4452, 2009 WL 2710100, ¶ 16. already been adjudicated by a court and made the subject of a fmal order, violate the separation- *12 [21] {¶ 57} Just as "Congress cannot vest re- of-powers doctrine by requiring the opening of fmal view of the decisions of Article III courts in offi- judgments. cials of the Executive Branch" or interfere with the judiciary by "command[ing] the federal courts to {¶ 621 In light of our conclusion that the reclassi- reopen final judgments," Plaut, 514 U.S. at 218, fication provision is unconstitutional, we decline to 219, 115 S.Ct. 1447, 131 L.Ed2d 328, the General address the remaining constitutional claims at this Assembly cannot vest authority in the attorttey gen- time. The sole remaining salient question is, Which eral to reopen and revise the final decision of a remedy to apply? See State v. Foster, 109 Ohio 84. judge classifying a sex offender. St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶

[22][23] {¶ 58) Our Constitution and case law make undeniably clear that the judicial power 2. Severance is the proper remedy resides exclusively in the judicial branch. Ex parte Logan Branch of State Bank qf Ohio (1853), 1 Ohio [24] {¶ 63) As we did in Foster, "[w]e presume St. 432, 434, 1853 WL 48. The judicial power of that compliance with the United States and Ohio the state is vested exclusively in the courts. Section Constitutions is intended and that an entire statute 1, Article IV, Ohio Constitution. The power to re- is intended to be effective. R.C. 1.47(A) and (B). view and afHrm, modify, or reverse other courts' Furthermore, R.C. 1.50 states, `If any provision of a judgments is strictly limited to appellate courts. section of the revised code or the application there- Section 3(B)(2), Article IV, Ohio Constitution. The of to any person or circumstance is held invalid, the AWA intrudes on that exclusive role and thus viol- invalidity does not affect other provisions or ap- ates the separation-of-powers doctrine. plications of the section or related sections which can be given effect without the invalid provision or {¶ 59) Moreover, once the final judgment has been application, and to this end the provisions are sev- opened, the AWA requires that the attorney general erable.' (Emphasis added.) "shall determine" the new classifications of offend- ers and delinquent children who were classified by {¶ 641 "When this court holds that a statute is un- judges under the former statutes. R.C. 2950.031 constitutional, severance may be appropriate. * * * (A)(1); 2950.032(A)(1)(a) and (b). In doing so, it Severance is suitable, however, only where it satis- violates a second prohibition by assigning to the ex- fies our well-established standard. * * *

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[25] {¶ 65} " * * * Three questions are to be In addition, R.C. 2950.031 and 2950.032 violate the answered before severance is appropriate. `"`(1) separation-of-powers doctrine by requiring the Are the constitutional and the unconstitutional parts opening of final judgments. capable of separation so that each may be read and may stand by itself? (2) Is the unconsfitutional part Judgments reversed. so connected with the general scope of the whole as to make it impossible to give effect to the apparent LUNDBERG STRATTON and LANZINGER, JJ., intention of the Legislature if the clause or part is concur. stricken out? (3) Is the insertion of words or terms PFEIFER, J., concurs in the syllabus andjudgment. necessary in order to separate the constitutional part O'DONNELL, J., concurs in part and dissents in part. from the unconstitutional part, and to give effect to CUPP, J., dissents. the former only?' "'" Foster, 109 Ohio St.3d 1, BROWN, C.J., not participating. 2006-Ohio-856, 845 N.E.2d 470, ¶ 93-95, quoting LUNDBERG STRATTON AND LANZINGER, Geiger v. Geiger (1927), 117 Ohio St. 451, 466, JJ., CONCUR.PFEIFER, J., CONCURS IN THE 160 N.E. 28, quoting State v. Bickford (1913), 28 SYLLABUS AND JUDGMENT. N.D. 36, 147 N.W. 407, paragraph 19 of the syl- O'DONNELL, J., CONCURS IN PART AND DIS- labus. SENTS IN PART.CUPP, J., DISSENTS.BROWN, C.J., NOT PARTICIPATING.O'DONNELL, J., {¶ 66} Applying these standards, we conclude that concurring in part and dissenting in part. severance of R.C. 2950.031 and 2950.032, the re- O'DONNELL, J., concurring in part and dis- classification provisions in the AWA, is the proper senting in part. remedy. By excising the unconstitutional compon- ent, we do not "detract from the overrid'mg object- {¶ 68} I agree with the majority that 2007 ives of the General Assembly," i.e., to better protect Am.Sub.S.B. No. 10 violates the separation- the public from the recidivism of sex offenders, and of-powers doctrine because the applicable statutes the remainder of the AWA, "which is capable of require the attorney general, a member of the exec- being read and of standing alone, is left in place." utive branch of government, to reclassify sexual of- Foster at ¶ 98. We therefore hold that R.C. fenders who have been previously classified as 2950.031 and 2950.032 are severed and, that after either sexually oriented offenders, habitual sexual severance, they may not be enforced. R.C. offenders, or sexual predators in accordance with a 2950.031 and 2950.032 may not be applied to of- determination by a member of the judicial branch fenders previously adjudicated by judges under of government. However, I dissent from that part of Megan's Law, and the classifications and com- the majority opinion discussing the doctrine of stare munity-notification and registration orders imposed decisis, because it is wholly dicta and superfluous previously by judges are reinstated. to the decision of the majority that the reclassifica- tion provisions of S.B. 10 are unconstitutional.

III. Conclusion Separation of Powers *14 {¶ 67} For the foregoing reasons, we hold that R.C. 2950.031 and 2950.032, which require the at- {¶ 69} In October 1999, Christian Bodyke entered torney general to reclassify sex offenders who have no contest pleas to breaking and entering and sexu- already been classified by court order under former al battery. The trial court sentenced him to an ag- law, impermissibly instruct the executive branch to gregate two-year term of imprisonment and de- review past decisions of the judicial branch and clared him a sexually oriented offender pursuant to thereby violate the separation-of-powers doctrine.

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statutes in effect at that time. As a sexually oriented tion, the court also determined if an offender was a offender, Bodyke had the duty to register every sexually oriented offender. See State v. Cook year for ten years and was not subject to com- (1998), 83 Ohio St.3d 404, 407, 700 N.E.2d 570 munity notification. See former R.C. 2950.07(B)(3) ("A sexually oriented offender is one who has com- and (B)(2), 146 Ohio Laws, Part II, 2617, 2613; mitted a`sexually oriented offense' as that term is former R.C. 2950.11(A) and (F), id. at 2626-2627, defined in R.C. 2950.01(D) but who does not fit the 2630. description of either habitual sex offender or sexual predator"). {¶ 70} In 2006, Congress passed the Adam Walsh Child Protection and Safety Act, Section 16901 et {¶ 74} In Bodyke's case, the trial court's judgment seq., Title 42, U.S.Code, and provided financial in- of conviction reflects that it "adjudicated" Bodyke centives to states for creating similar legislation. to be a sexually oriented offender. Therefore, when See Section 16925(a). Ohio became the first state in the General Assembly directed the attorney general the nation to follow suit and enacted S.B. 10. to reclassify him, it impennissibly invaded the province of the judiciary by mandating the reopen- {¶ 71} In November 2007, Attomey General Marc ing of a final judgment and by directing that a judi- Dann notified Bodyke that he had been reclassified cial function be performed by a member of the ex- as a Tier III sexual offender pursuant to newly en- ecutive branch of government. As we stated in acted S.B. 10. As a result of the Tier III reclassific- Bartlett v. State (1905), 73 Ohio St. 54, 58, 75 N.E. ation, Bodyke had new registration requirements in 939, "it is well settled that the Legislature cannot that he had to register every 90 days for life and annul, reverse, or modify a judgment of a court also became subject to community notification. already rendered ***." See also Gompf v. R.C. 2950.06(B)(3), 2950.07(B)(1), and 2950.71 (A). Wolfirager (1902), 67 Ohio St. 144, 65 N.E. 878, paragraph three of the syllabus ("A judgment which {¶ 72} Former R.C. 2950.09(B)(1) mandated that is fmal by the laws existing when it is rendered can- the trial court conduct a hearing and determine not constitutionally be made subject to review by a whether to adjudicate an offender to be a sexual statute subsequently enacted * * * "). predator or a habitual sexual offender. 146 Ohio Laws, Part II, 2618. Former R.C. 2950.09(B)(2) {¶ 75} Accordingly, I concur with the majority's and (3) required the court to weigh listed factors to holding that S.B. 10 is unconstitutional in that it re- "determine by clear and convincing evidence quires the attomey general, a member of the execut- whether the offender is a sexual predator." See 146 ive branch of government, to reclassify sex offend- Ohio Laws, Part II, 2618-2619. If the court found ers who had previously been adjudicated and classi- that the offender was not a sexual predator, the stat- fied pursuant to a final order of a court. ute directed it to "specify in the offender's sentence and the judgment of conviction * * * that the of- fender is not a sexual predator." Former R.C. Stare Decisis 2950.09(E) required the court to specify in its entry whether it had determined the offender to be an ha- {¶ 76} I dissent from the majority, however, re- bitual sexual offender. 146 Ohio Laws, Part II, 2624. garding its statements about the inapplicability of the doctrine of stare decisis to constitutional claims. *15 {¶ 73} This statute thus directed the trial court The majority in doing so reaches to decide a ques- to determine whether an offender was a sexual tion that does not need to be resolved at this time. predator or a habitual sexual offender; by implica- {¶ 77} Initially, it should be noted that neither party has specifically asserted or briefed the issue of what

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role stare decisis should play in ruling on constitu- 2008-Ohio-4082, 893 N.E.2d 1287, ¶ 3 (O'Connor, (1970), tional questions. We therefore should not raise this J., concurring). See also Fortner v. Thomas question on our own initiative, because as we ex- 22 Ohio St.2d 13, 14, 51 0.O.2d 35, 257 N.E.2d plained in Sizemore v. Smith (1983), 6 Ohio St.3d 371 ("It has been long and well established that it is 330, 333, 6 OBR 387, 453 N.E.2d 632, fh. 2, "[i]t the duty of every judicial tribunal to decide actual has long been the policy of this court not to address controversies between parties legitimately affected issues not raised by the parties. * * * This court by specific facts and to render judgments which can should be hesitant to decide such matters for the be carried into effect"). reason that justice is far better served when it has the benefit of briefing, arguing, and lower court {¶ 8l} Here, there is no actual controversy between consideration before making a final determination." the parties over how the doctrine of stare decisis should apply when the meaning of the Constitution {¶ 78} "The premise of our adversarial system is is at issue, and any attempt to unnecessarily decide that appellate courts do not sit as self-directed that question in this case contravenes well-settled boards of legal inquiry and research, but [preside] law that this court will not issue advisory opin- essentially as arbiters of legal questions presented ions. State ex rel. White v. Kilbane Koch, 96 Ohio and argued by the parties before them." Carduc•ci v. St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508, ¶ 18, Regan (C.A.D.C.1983), 714 F.2d 171, 177. Pro- citing State ex rel. Baldzicki v. Cuyahoga Cty. Bd ceeding to decide an issue not briefed by the parties of Elections (2000), 90 Ohio St.3d 238, 242, 736 creates "`the risk "of an improvident or ill-advised N.E.2d 893, and Egan v. Natl. Distillers & Chem. opinion, given [the court's] dependence * * * on the Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 adversarial process for sharpening the issues for de- N.E.2d 904, syllabus. cision." '" Carbino v. West (C.A.Fed.1999), 168 F.3d 32, 35, quoting Headrick v. Rockwell lnter- {¶ 82} To compound the problem, the majority natl. Corp. (C.A.10, 1994), 24 F.3d 1272, 1278, goes too far in concluding that the doctrine of stare quoting Herbert v. Natl. Academy of Sciences decisis is inapplicable to constitutional claims. We (C.A.D.C. 1992), 974 F.2d 192, 196. previously stated in Rocky River v. State Eenp. Re- lations Bd. (1989), 43 Ohio St.3d 1, 5, 539 N.E.2d *16 {¶ 79} As the majority admits, we have not be- 103, that stare decisis "does not apply with the fore had an opportunity to consider the constitu- same force and effect when constitutional interpret- tionality of the reclassification provisions of S.B. ation is at issue." (Emphasis added.) But stating 10. Thus, the majority's discussion of the role of that stare decisis applies with less force is a far cry stare decisis in constitutional interpretation is unne- from the proposition that it is wholly inapplicable, cessary to reach its holding that these reclassifica- and it is telling that the majority musters no direct tion provisions violate the separation-of-powers authority for this overbroad holding. doctrine. {¶ 83} Fidelity to precedent is "vital to the proper {¶ 80} We usually decline to rule on questions that exercise of the judicial function * * * [and] `is the are not necessary to a proper disposition of a case. preferred course because it promotes the evenhan- This restriction exists because °[a] hallmark of ju- ded, predictable, and consistent development of dicial restraint is to rule only on those cases that legal principles, fosters reliance on judicial de- present an actual controversy. To do otherwise-to cisions, and contributes to the actual and perceived simply answer a hypothetical question merely for integrity of the judicial process.' " Citizens United the sake of answering it-would make this court v. Fed Election Comm. (2010), --- U.S. ----, 130 nothing more than an advisory board.°' Ahmad v. S.Ct. 876, 920, --- L.Ed.2d ----, quoting Payne v. AK Steel Corp., 119 Ohio St.3d 1210, Tennessee (1991), 501 U.S. 808, 827, 111 S.Ct.

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2597, 115 L.Ed.2d 720. tional questions-that issue is not before the court. Rather, I only emphasize that it is by no means *17 (¶ 84) Thus, as the Supreme Court of the clear that the doctrine of stare decisis and the United States has acknowledged, " 'even in consti- Galatis test are wholly inapplicable to cases in- tutional cases, the doctrine [of stare decisis] carries volving constitutional issues. We should await a such persuasive force that we have always required case presenting concrete facts and parties actively a deparhve from precedent to be supported by some litigating and properly briefmg the question, which "special justification." ' " Dickerson v. United may reveal additional arguments for retaining or States (2000), 530 U.S. 428, 443, 120 S.Ct. 2326, modifying the Galatis framework in cases of con- 147 L.Ed.2d 405, quoting United States v. Internatl. sfitutional import. Business Machines Corp. (1996), 517 U.S. 843, 856, 116 S.Ct. 1793, 135 L.Ed.2d 124, quoting *18 {¶ 87} Lastly, it is ironic that the majority's Payne, at 842, 111 S.Ct. 2597, 115 L.Ed.2d 720 statement on the binding power of precedent is it- (Souter, J., concurring). See also Citizens United, - self obiter dictum that compels no obedience. A -- U.S. at ----, 130 S.Ct. at 921, --- L.Ed.2d ---- ("It court is not bound to follow its own dicta from a follows that in the unusual circumstance when fi- prior case in which the point at issue "was not fully delity to any particular precedent does more to debated." Cent. Virginia Community College v. damage this constitutional ideal than to advance it, Katz (2006), 546 U.S. 356, 363, 126 S.Ct. 990, 163 we must be more willing to depart from that pre- L.Ed.2d 945; see also Cosgrove v. Williamsburg oJ cedent"). Cincinnati Mgt. Co., Inc. (1994), 70 Ohio St.3d 281, 284, 638 N.E.2d 991 (explaining that dicta in a {¶ 85} Moreover, while the majority asserts that the prior case "has no binding effect on this court's de- tripartite test for departing from precedent that we cision in this case"). adopted in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, has {¶ 88} As Chief Justice Marshall explained long no application to constitutional questions, the court ago in Cohens v. Virginia (1821), 19 U.S. (6 in Galatis specifically recognized that "the United Wheat.) 264, 399, 5 L.Ed. 257, "It is a maxim not States Supreme Court utilized a similar trifold stare to be disregarded, that general expressions, in every decisis test in Lawrence v. Texas (2003), 539 U.S. opinion, are to be taken in connection with the case 558, [574-578] 123 S.Ct. 2472, 2482-2483, 156 in which those expressions are used. If they go bey- L.Ed.2d 508. " Galatis at ¶ 48, fn. 5. Lawrence in- ond the case, they may be respected, but ought not volved the question of whether to overrule Bowers to control the judgment in a subsequent suit when v. Hardwick (1986), 478 U.S. 186, 106 S.Ct. 2841, the very point is presented for decision." 92 L.Ed.2d 140, on the question of whether the constitution permits prosecution for private acts of {¶ 89} After all, "[t]he problem with dicta, and a homosexual sex. Further, the Supreme Court of the good reason that it should not have the force of pre- United States in Lawrence derived the test from cedent for later cases, is that when a holding is un- Planned Parenthood of Southeastern Pennsylvania necessary to the outcome of a case, it may be made v. Casey (1992), 505 U.S. 833, 855, 112 S.Ct. 2791, with less care and thoroughness than if it were cru- 120 L.Ed.2d 674, which itself dealt with the ques- cial to the outcome." Bauer v. Garden City (1987), tion of whether to overrule Roe v. Wade (1973), 163 Mich.App. 562, 571, 414 N.W.2d 891. 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, on a question of constitutional interpretation. {¶ 90) I am reminded of Chief Justice Roberts's statement in PDK Laboratories, Inc. v. United {¶ 86} My point is not to plot the precise boundar- States Drug Enforcement Adm. (C.A.D.C.2004), ies of the application of stare decisis to constitu- 362 F.3d 786, 799 (Roberts, J., concurring in part

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and concurring in the judgment), where he wrote overturn a final judgment at law by legislative man- that the "the cardinal principle of judicial restraint date. Plaut v. Spendthrift Farm, Inc. (1995), 514 [is that] if it is not necessary to decide more, it is U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328; GompJ necessary not to decide more ***" In Meyer v. v. Wolfznger (1902), 67 Ohio St. 144, 152, 65 N.E. United Parcel Serv., Inc., 122 Ohio St.3d 104, 878. But to characterize S.B. 10 as "reopening" a 2009-Ohio-2463, 909 N.E.2d 106, ¶ 53, we fol- final judgment is, I believe, inaccurate. S.B. 10 lowed this limitation, citing this very quotation. does not upend the original conviction and sen- tence. They remain in place. {¶ 91} For these reasons, while I agree with the majority that the reclassification provisions of S.B. {¶ 96} Instead, S.B. 10 applies a new, different sys- 10 violate the doctrine of the separation of powers, tem of sex-offender classification to the fact of the I cannot join the majority's unnecessary rumina- criminal conviction. What this court said in describ- tions on the docttnme of stare decisis. Accordingly, I ing the then new, different classification system in concur in the judgment that reclassification of sexu- the amended Megan's Law also holds true for S.B. al offenders who have previously been classified by 10. In State v. Ferguson, 120 Ohio St.3d 7, members of the judicial branch of government by 2008-Ohio-4824, 896 N.E.2d 110, ¶ 34, we ob- the Attorney General of Ohio, a member of the ex- served that "an offender's classification as a sexual ecutive branch of government, violates the separa- predator is a collateral consequence of the offend- tion-of-powers doctrine, but dissent from the re- er's criminal acts rather than a form of punishment mainder of the opinion. per se." (Emphasis added.)

CUPP, J., dissenting. {¶ 97} In this case, the manner in which appellants' *19 CUPP, J., dissenting. sex-offender classifications were effected under the prior law does not support the majority's conclusion {¶ 92} I respectfully dissent. that they constituted a fmal judicial judgment. The trial court declared appellant Bodyke to be a {¶ 93} The majority errs, in my view, in holding "sexually oriented offender," which was reflected that the reclassification sections of 2007 in his sentencing judgment. Appellant Phillips was Am.Sub.S.B. No. 10, and the consequent change in convicted and sentenced before the effective date of registration and reporting requirements for offend- Megan's Law. After that law went into effect, the ers previously classified under prior law, violate the trial court notified Phillips that it would consider separation-of-powers doctrine and, therefore, whether to classify him as a sexual predator. No render new sections R.C. 2950.031 and 2950.032 hearing was held in Phillips's case to determine if unenforceable. he was a predator, because the state informed the trial court by motion that it did not seek to classify {¶ 94} The majority's premise is that because a sex- Phillips as a sexual predator. Phillips thus remained offender classification under Megan's Law is in- a°sexually oriented offender" by virtue of his crim- cluded within the defendant's criminal judgment inal conviction. See State v. Hayden, 96 Ohio St.3d (along with the conviction and sentence for the un- 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 16. Ap- derlying crime) or in a separate entry (e.g., when pellant Schwab was declared to be a habitual sexual the sex-offense conviction predated Megan's Law), offender without community notification require- the classification is a fmal judgment that the Gener- ments, which was memorialized in his sentencing al Assembly may not overturn or vacate by legislat- entry. The sentencing entry for Schwab states that ive mandate. "[t]he Defendant and the State jointly stipulated that the Defendant is an habitual Sexual Offender." {¶ 95} It is true that the General Assembly may not

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{¶ 98) As this court has noted, under Megan's Law e.g., Sewell v. State, 181 Ohio App.3d 280, State v. the conviction of a sexually oriented offense 2009-Ohio-872, 908 N.E.2d 995 (1st Dist.); "automatically conferred on [the offender] the Barker, 2d Dist. No. 22963, 2009-Ohio-2774, 2009 3d Dist. Nos. status of sexually oriented offender," and the regis- WL 1653013; Holcomb v. State, tration requirement "is mandated by law." State v. 8-08-23 to 8-08-26, 2009-Ohio-782, 2009 WL 427616; 4th Dist. No. 08CA3046, Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 State v. Randlelt, State v. Byers, N.E.2d 502, ¶ 16. In Hayden, we rejected the argu- 2009-Ohio-112, 2009 WL 81325; ment that a sexually oriented offender was entitled 7th Dist. No. 07 CO 39, 2008-Ohio-5051, 2008 WL 11th Dist. No. to a hearing to determine his status. As we said in 4416519; State v. Ettenger, 2008-L-054, 2009-Ohio-3525, 2009 WL 2136928; Hayden, in regard to a sexually oriented offender under Megan's Law, "`[t]he trial court cannot State v. Williams, 12th Dist. No. CA2008-02-029, "determine" anything. It merely engages in the 2008-Ohio-6195, 2008 WL 5052748. But see ( ministerial act of rubber-stamping the registration Ettenger, ¶ 86-96 Grendell, J., concurring in judg- requirement on the offender.' " Id. S.B. 10's classi- ment only) (opining that S.B. 10 violates separation fication of sex offenders into Tiers I, 11, and III, op- of powers by vacating fmal judgment orders). erates in the same way-the tiers are automatically assigned by operation of law based on the crime of {¶ 102} Rather than directing courts to reopen prior which the offender was convicted and not upon a judicial judgments and empowering an executive sex-offender registra- judicial determination. officer to rejudge defendants' tion, classification, and reporting requirements, *20 {¶ 99} Thus, for example, reclassification of S.B. 10 repealed the law that required the notice of Bodyke as a Tier III offender under S.B. 10 did not classification and registration to be inserted in the change a prior judicial determination that Bodyke sentence at sentencing. In the same bill, the General was a sexually oriented offender under prior law, Assembly enacted a new classification and registra- because that designation attached as a matter of tion framework to be applied both to future convic- law. Reflecting that designation in the sentencing tions and (as at issue here) to existing convictions. judgment entry merely served to give the offender As a consequence, the notices in the sentencing notice of the consequences of his conviction. See entries relate to classifications under the prior law that do not exist in the current law (e.g., habitual Smith v. Doe (2003), 538 U.S. 84, 96, 123 S.Ct. 1140, 155 L.Ed.2d 164 ("Although other methods offender, sexual predator), because the underlying another set of notification [of sex offender registration require- law has been repealed and replaced with ( ments] may be available, it is effective to make it of classifications Tiers I, II, and III) and accompa- part of the plea colloquy or the judgment of convic- nying requirements. tion"). *21 {¶ 103) Rather than burden the courts with {¶ 100} The offender's classification under prior sifting the hundreds or thousands of sex offenders law, which the majority extols as an inviolate fmal to which new and different requirements apply, the judgment, instead is in effect a statutorily mandated General Assembly assigned that administrative task notice, involving a matter collateral to the criminal to an executive officer, the attorney general. For the sentence, inserted by statutory direction into the reasons explained above, however, this task neither criminal sentence as a matter of convenience. requires nor permits the attotney general to open, overturn, or otherwise disturb the final judgments {¶ 101} It is for good reason, then, that nearly all of of conviction and sentence of any offender. Finally, the courts of appeals to have considered a separa- S.B. 10 makes the attorney general's determination tion-of-powers challenge like the one the majority subject to an appeal to a trial court by a reclassified sustains here have rejected such a challenge. See,

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offender to ensure that the reclassification accords Louis A. Chaiten, urging reversal for amici curiae with the new law. Iowa Coalition Against Sexual Assault, Association for the Treatment of Sexual Abusers, Jacob Wetter- {¶ 104} Thus, the majority opinion misapprehends ling Resource Center, Detective Robert A. Shilling, both the intent and effect of the re-classification California Coalition Against Sexual Assault, Texas mechanism employed by the General Assembly in Association Against Sexual Assault, and National S.B. 10. Because it does not work a legislatively Alliance to End Sexual Violence.Robert L. Tobik, mandated reopening of a final court decision, for Cuyahoga County Public Defender, and John T. the reasons set out above, it also does not offend Martin and Cullen Sweeney, Assistant Public De- the fundamental purpose and requirements of the fenders, urging reversal for amicus curiae separation-of-powers doctrine. Cuyahoga County Public Defender.Ian N. Friedman & Assoc., L.L.C., and Ian N. Friedman, urging re- {¶ 105} I also agree with Justice O'Donnell's point versal for amicus curiae Ohio Association of De- that the majority's disposition of this case on separ- fense Lawyers.Timothy Young, Ohio Public De- ation-of-powers grounds renders unnecessary any fender, and Kelly K. Curtis and Katherine A. consideration of the extent to which stare decisis Szudy, Assistant Public Defenders, urging reversal applies to constitutional claims. Because the major- for amicus curiae Ohio Public Defender.William D. ity does not address the constitutional claims raised Mason, Cuyahoga County Prosecuting Attorney, by appellants (other than separation of powers), and Mary H. McGrath, Assistant Prosecuting Attor- there is no need for the court to delve into whether ney, urging affirmance for amicus curiae Cuyahoga stare decisis requires us to reject the constitutional County Prosecuting Attorney.Ron O'Brien, Franklin challenges to S.B. 10 on the authority of State v. County Prosecuting Attorney, and Steven L. Cook (1998), 83 Ohio St.3d 404, 700 N.E.2d 570; Taylor, Assistant Prosecuting Attomey, urging af- State v. Williams (2000), 88 Ohio St.3d 513, 728 firmance for amicus curiae state of Ohio.Richard N.E.2d 342; and State v. Ferguson, 120 Ohio St.3d Cordray, Attomey General, Benjamin C. Mizer, So- 7, 2008-Ohio-4824, 896 N.E.2d 110. Those de- licitor General, Alexandra T. Schiininer, Chief cisions rejected constitutional challenges to Deputy Solicitor General, David M. Lieberman, Megan's Law (Cook and Williams ) and the S.B. 5 Deputy Solicitor, Christopher P. Conomy, Assistant amendments to that law (Ferguson ). Our prior Solicitor, and James A. Hogan, urging affinnance cases upholding Megan's Law and its amendments for amicus curiae Ohio Attorney General. did not address a separation-of-powers issue as has been presented in this case. Consequently, the ma- FNl. Christian N. Bodyke is an appellant jority's ruling in this case does not implicate the test in one of three appeals consolidated by the for overruling precedent contained in Westfield Ins. Sixth District. Bodyke was convicted of Co. v. Galatis, 100 Ohio St.3d 216, sexual battery in 1999. The others, David 2003-Ohio-5849, 797 N.E.2d 1256. Nor does its Schwab and Gerald Phillips, were found discussion, which is dicta, settle the issue. guilty of attempted rape in 1999 and gross sexual imposition and sexual battery in {¶ 106} Because the majority's decision does not 1993, respectively. All of the appellants rule on the remaining constitutional claims of ap- are individuals who were classified ini- pellants, I also decline to address them. tially under Megan's Law and reclassified Russell V. Leffler, Huron County Prosecuting At- according to the AWA. Bodyke, Schwab, tomey, for appellee.Gamso, Helmick & Hoolahan and Phillips assert six propositions of law. and Jeffrey M. Gamso; and Hiltz, Wiedemann, All- Those propositions aver that the applica- ton & Koch Co., L.P.A., and John D. Allton, for ap- tion of the AWA to offenders whose pellants.Jones Day, Elizabeth C. Radigan, and

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crimes were committed before the AWA's Bluestein (December 1, 2009), "Ohio lone effective dates violates (1) the Ex Post state to adopt sex-offender rules," in Can- Facto Clause of the federal Constitution, ton Rep.com, available at http:// (2) the Retroactivity Clause of the Ohio www.cantonrep.com/ohio/x2072228737/0 Constitution, (3) the separation-of-powers hio-lone-state-to-adopt-sex-offender-rules doctrine embodied in the Ohio Constitu- (last visited Mar. 22, 2010). The deadline tion, and (4) the Double Jeopardy Clause for compliance has been extended from Ju- of the state and federal Constitutions. They ly 2009 to July 2010, but it appears that also assert that the AWA, as applied to sex many states will still be unable, or unwill- offenders whose cases were adjudicated ing, to comply. Id. For many states, the under the provisions of Megan's Law, viol- costs of compliance with the act will far ates due process and constitutional protec- outweigh the ten percent reduction in fund- tions against cruel and unusual punishment ing. The cost for Illinois, for example, has and against impairment of contracts. been estimated at nearly $21,000,000 to comply with the Act in the first year, but FN2. Although all of the states enacted that it will lose less than $1,000,000 if it some form of sex-offender legislation in does not. See Liz Winiarski, Facing the order to comply with the federal Megan's Compliance Deadline for the Adam Walsh Law, the breadth of the registration and Child Protection and Safety Act, States are notification provisions varied from state to Weighing all the Costs (2009), 14 Pub. In- state. Sex Offender Treatment in the terest L.Rep. 192, 193. United States: The Current Climate and an (2001), 91 Unexpected Opportunity for Change FN5. {¶ a}In State v. Eppinger (2010), 84 Tulane L.Rev. 729, 731. Ohio St.3d 158, 743 N.E.2d 881, we em- phasized the importance of the classifica- FN3. In 2003, the United States Supreme tion hearing in assessing each offender on Court confronted an Alaskan statutory an individualized basis, avoiding whole- scheme very similar to Megan's Law. The sale labeling of offenders as sexual predat- high court concluded that the Alaskan law ors based only on a conviction, and advan- did not violate the Ex Post Facto Clause. cing the purpose of the legislation, which Smith v. Doe (2003), 538 U.S. 84, 123 was to protect the public: S.Ct. 1140, 155 L.Ed.2d 164. In so hold- ing, the court applied the factors from {¶ b}"If we were to adjudicate all sexual Kennedy v. Mendoza-Martinez, 372 U.S. at offenders as sexual predators, we run the 159, 83 S.Ct. 554, 9 L.Ed.2d 644, as we risk of `being flooded with a number of did in Cook, and drew the same conclu- persons who may or may not deserve to sion-that the Ex Post Facto Clause does not be classified as high-risk individuals, prohibit states from retroactively requiring witb the consequence of diluting both sex offenders to register periodically witb the purpose behind and the credibility of local law enforcement or from disseminat- the law.' " Id. at 165, 743 N.E.2d 881, (1999), 140 ing to the community the offenders' name, quoting State v. Thompson address, photograph, and other personal in- Ohio App.3d 638, 647, 748 N.E.2d 1144. formation. {q c}We fmther opined that "[o]ne sexu- FN4. Ohio is the only state to have com- ally oriented offense is not a clear pre- plied wit"h the mandate, however. Greg dictor of whether that person is likely to

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engage in the future in one or more sexu- ally oriented offenses, particularly if the offender is not a pedophile. Thus, we re- cognize that one sexually oriented con- viction, without more, may not predict future behavior." Id. at 162, 743 N.E.2d 881.

FN6. This court held that this prohibition cannot constitutionally be applied to an of- fender who bought his home and commit- ted his offense before the effective date of the statute. Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, syl- labus.

Ohio,2010. State v. Bodyke --- N.E.2d ----, 2010 WL 2219064 (Ohio), 2010 - Ohio- 2424

END OF DOCUMENT

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http://web2.westlaw.com/print/printstream.aspx?vr=2.0&mt=0hio&destination=atp&prft=... 7/14/2010 AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES

1,111endntent V

\n hersuu shall br held to ansver fmr u cnpit.d, or athrmise infhiuun,s criwe. unless ou a fxeseutmeut or iii(lictrnent of a Crmul Jurv, rxcept in cases arising in the Lmd or naxal forces, ur in the blilitia, Wlten in act'nal servic•e in time 4W ar or public dant;er; nor shuLl .urv person be snhject fitr thr same offence to he twice put in jeupardv of lile or limh; nor shatl br compelletl inanv ciiniiual case to he a svitness against hiurself, nor be deprived ol' life, libertv, or Irrnfrettv, without due process of law; nur sh:dl private property he takeu for public use, Nvithout just c•outpeusation. (Effective 1791)

Atnendment XIV

SECTION 1. All persons boru ot- naturalized in thr United States. and subject to the jurisdiction thereo(, are citizeus of the United States and of the Stalv wherein thev reside. No State shall make or eufnrer atn° lnw which shall abridge the privdleges or imnnini ties of citizens of the LJnited States; nor shall anv Statr deprive any person of life, Iiberty or property, witlwtft due process of law; nor deny to any personwithiu ita jurisdiction the equal protecfion of the laws.

Ohio Constitution Due process. O(]onst art 1, § 16

§ 16 Redress in courts. All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputa- tlon, shall have remedy by due course of law, and shall have justice administered without denial or delay. [Suits against the state.] Suits may be brouGht ugainst the state, in such courts and in such rnanner, as may be provided by law. ( HISTORY: AS amended Septem6er 3, 1912.)

A-Yy CHAPTER 5711; LISTING PERSONAL PROPERTY

§ 5711.01 Defnitions.

As used in this chapter: (A)(1) "Taxable property" includes all the kinds of for or on behalf of another. For tar vear 2007 and propertv nientioned in division (B) of section 5709.01 ancl thereafter, "tazpaver" Includes telephone companies, tele- section 5709.02 of the Revised Code, and also the amount graph c•ompanies, and interexchange telecommunications or value as of the date of conversion of all taxable properh company as def3ned in section 5727.01 of the Revised eonverted into bottds or other seeurities not taxed on or Code- The tax commissioner may by rule define and after the first dcn of November in tlce year preceding the designate the taxpayer, as to any taxable propertv whicb date of listing, and of all other taxable property converted would not othenvise be required by this section to be into deposits after the date as of which deposits are retunted; aud any such rule shall be considered supple- required to be listed in such year, exc•ept in the usual mentarv to the emmiieration of kinds of taxpavers follow- crntrse of the taxpayer s business, to the extent ttce tax- ing: payer may hold or control such bonds, securities, or (1) Individuals of full age and sound mind residing in deposits on such day, without dednction for indebtedness this state; creat'ed in the purchase of such bonds or securities from (2) Partnerships, corporations, associations, and joint- the taxpayer's credits. "Taxable properh^" does not include stock companies, under whatever laws organized or exist- such investments and deposits as are taxable at the source ing, doing business or having taxable property in this state; as provided in sections 5725.01 to 5725.26 of the Rewised and corporations incorporated l^y or organized under the Code, surrender values under policies of insuranc.e, or anr laws of this state, wherever their actual business is wn- tangible personal property acquired from a pnblic ntility or ducted; inte.rexchange telecontmunications cocnpany as defined in (3) Fiduciaries appointed by any court in this state or section 5727.01 of the Revised Code and leased back to having title, possession, or custody of taxable personal the public utility or interexchange teleeommunications property in this state or engaged in business in this state: company pursuant to a sale and leaseback transaction as (4) Unincorporated tnutual funds. deflned in division (I) of section 5727.01. of the Revised "Taxpayer" excludes all individuals, partnersltips, cor- Code. For tax year 2007 and thereafter, "taxable property" porations, associations, and joint-stock companies, their of a telephone, telegraph, or interexchange telecommuni- execntors, administrators, and receivers who are defined cations company, as defined in section 5727.01 of the in Title LVII [57] of the Revised Code as financial Revised Code, includes propertv subject to such a sale and institutions, dealers in intangibles, dotnestic lusttrance leaseback tran.sactiou. companies, or public utilities, except to tbe extent they (2) For tax year 2007 and thereafter, taxable property may be required by sections 571.1.01 to 5711.36 of the leased to a telephone, telegraph, or interexchange tele- Revised Code, to make retunts as fiduciaries, or by sectiou eotnmunications company, as defined in section 5727.01 5725.26 of the Revised Code, to tnake returns of propert } of the Revised Code, other than pursuant to a sale and leased, or held for the purpose of Ieasing, to others if thc leasebac•k transaction, shall be listed and assessed by the owner or lessor of the property acquired it for the sole owner of the property as follows: pnrpose of leasing it to others or to the extent that (a) If the property leased to such a crompany is not property is taxable tinder sectlon 5725.25 of the Revised governed by division (C) of section 5711.22 of the Revised Code. Code in tax years 2007 and 2008, it shall be listed and (C) "IRetuni" means the taxpayer's annual report of assessed at tlte percentage of true value in money required taxable propert). under division (G) of section 5711.22 of the ReNdsed Code. (D) "List" means the designation, in a return, of the (b) All property leased to such a company in tax years description of taxable propertv, the valuation or amowtt 2009 and 2010 shall be listed and assessed at the percent- thereof, the name of the owner, and the taxiug district age of tnte value in tnoney reqnired under division (H) of where assessable, section 5711.22 of the Revised Code. (E) "Taxing distriet" means, in the cuse ofpropertv (3) For tax years 2009 and 2010, the lessor of properh assessable on the classified tax list and duplicate, a ntunic- subject to divlsion (A)(2) of this section sltall have the tnre ipal corporatiou or the territory in a counhoutside the value of the properh, the lessor leases to a telephone, limits of all municipal corporations thereiu; in the case of telegraph, or interexchange teleconununications company propertv assessable on the general tax list and duplicate, a determined under divisions (A)(5) and (E) of seetion municipal corporation or toumship, or patt tbereof, iu 5727.06 of the Rewised Code. which the aggregate rate of'taxation is unifortn. (B) "Taxpayer° means anp ovmer of taxable propertv, (F) "Assessor" includes the tax commissioner and tlie including property exempt under division (C) of sectioil eounh auditor as deputv of the comnmissioner- 5709.01 of the Revised Code. and inclades every person (G) 'Tiduc•iary'' inc[udes executors, administrators, residing in, or incorporated or organized by or under the parents, guardians, receivers, assignees, ofPicial custodWns, lavvs of this state, or doing business in this state, or owning factors, bailees, lessees, agents, attornevs, and employee.s, or having a beneficial interest in taxable personal properh but cloes not include tntsta•es unle•ss tl'te sense so requires. in this state and evenftducian- required bc sections 5711.01 to 571.1.36 of the Revised Code, toa-Ys make a retuni (H) "Geueral tax list and duplicate" means the books or records containing the assesstnents of properh subjec•t to local tax lesies. (I) "Classified tax list and duplicate" means the books § 5 711.03 Listing of taxable property. or records containing the assessments of propertq° not subject to local tar levies. Except as provided in sections 5711.01 to 5711,36 of tbe Revised Code, all taxable properh, shall be listed us to (J) "Investntent cotnpanv" means amcorporatlon, the sbares of which are regtdarly ol}'ered for sale to the public. owuership or control, valuation, and taxing districts as of the beginning of the first dav of )anuan, annuallv, exc•ept engaged solelq in the business of im-esting atrd reinvesting that taxable person.d propertv and credits used in busine.s.s funds in real property or iuvestments, or holding or selling sltall be listed as of the close of business of the la,st d;tyef real propertv or investtnents for the purpose of realizing December, annualls•, and deposits riot taxed at the source income or profit which is distributed to its sliarelrolder.s. shall be listed as of the dav fixed by the tax commissioner Investment companv does not include anc dealer in for the listing of deposits taxed at the sonrce pursuant to intangibles, as defined in section 5725.01 of the Revised section 5725.05 of the Revised Code. The subsequent Code, transfer of anv taxable propertv shall not authorize anv (K) "Onincorporated mutual fund" means any partner- taxpaver to omit the smne f?om [tis return nor the assessor ship, each partner of which is a corporation, engaged to fail to assess the same in the manner required, ailthough solely in the business of investing and reinvesting ftmds irt such return or assessment is not tnade until aRer such imlestments, or holding or selling investments fi'rr the transf, er. When a person or taxpayer engages in business in purpose of realizing income or profit whic•h is distributed this state on or after the first dav of )amarv. in any vear, to its partners and which is subject to Chapter 1707. of the he shall list all his tarable property, except inventorv, as to value. oaatership and taxing districts as of the (late lie Revised Code, An unincorporated mutual fnnd does not engages in business. In listing inventonns to ownersbip include any dealer in intangibles as defined in sec•tion and taxing distticts lie shall list the probable average value 5725,01 of the Revised Code. intended to be used in bttsiness from the date he engages iu bttsines.s until the first day of Januarv next thereafter, The valuation of all propertv, inclurling average inventorv, to be returned for taxation 'shall be determined bv ntulti- § 5711.02 Annual returns; supplying of plying the value, or average value of snch propertv bv a blanks. fraetion whose mtmerator is the mmnber of fidl months Except as otlterwise provided by section 5711.13 of the engaged iu btisiness during the year of engagiug in Revised Code, each year, beginning in tax year 2t104, each business, and whose denominator is twelve, unless lie taxpayer having taxable personal property with an aggre- shows the assessor, undet- oath, and by prodncing a copv of gate taxable value in excess of ten thousand dollars shall the return or assessment, that the same property Iws been make a return to the cotrntv atrditor of each countv in listed or assessed for taxation for said vear in this state. which any taxable property the t:ixpayer mn,st retnrn is required bv this chapter to be listed . The taapayer shall trulv and correetlc list on the return all taxable propertv so required to br listed, iucluding property exempt rmder division (C)(3) of section 5709.01 of the Revised Code. Such returns shall be made on the blanks prescribed bv the tax commissioner, which the county auditor shall .supplv at thc auditor s of'fice along srith blanks of the kind reqnired for the c•ounty stipplencented return required bv section 5i11.131 [5711,13.1] of the Revised Code . The county° auditor ,sltall tnail or distcibute such blanks prior to tbe fifteenth dac of Febrttan to all persons knoUn to tlic auditor to be tcczpavers and to all persons to whom fbe commissioner niac direct blanks of either trypc to be utailed or distributed . The countc auditor mmplace listin}; and countv supplentental blanks at conneuieul places iu the comtk. Thr failure of a t;ixpayer to receive or procure blanks sh;dl not excu.se the tavpaver from rnakiuK anv return or c•ounhsupplemmntal return. The indkidual required to make thc return shall licruish all statements and docoment,c, giva ull inforinatioii required, ausver cdl questions asked on the reqnired blank.s, and .subsciilre to the tntth and correctness of all inatters contained therein.

A-I6 § 5711.04 Time for making returns. (A) Except as otherwise proNided in division (B) of the (C:) That of an e.vtate of a deceasecl person, by the section, returns sliall be tnade, annually, between the deceasecl persons executor, administrator, or personal fifteentli day of Febniary and the thirtieth day of April. representative; Upon verified application of any taxpayer, and for good (D) That of persons whose assets are in the hands of cause shown, the county auditor may extend the time rec•eizer.s, assignees for the benefit of creditors, trustees in within which sucb taxpayer may make a return to the bankruptc\. or official custotlians, bv sucl'i receivers, as- fif'teenth day of June. If the conntv auditor fails to allow, iri signees. tnistees in bankruptcy, or official etestodians. whole, a tirnely application of the taxpayer for an extension Personal propertv used in business and taxable property of time for filing a return, the taxpayer, irpon payment on of a nonresideut used in aud arising out of a business or before the thirtieth day of April of an amoont equal to transacted for the uonresident or on the nonresidenfs one-half of the taxpayer's tax for the next preceding year, behalf in anv of the cases tnentioned in sectiou 5709.03 of shall make a return on or before the fifteenth dav of Jnne. the Revised Code, in the possession or custodv of anc (B) When a taxpayer first engages in business in this agent, factor, bailee, or other similar fiduciarv,^shall be state after the first day of January in any year, the taxpayer returned by such fiduciary, except as is provided by shall make a return within ninety days of cornrnencing regulation of the eommissioner; but as to such property in such business. Upon verified application of the taxpayer, the posse.ssion, ctistodv, or legal owqersl7ip of a trnstee the and for good cause shown, the countv auditor may extend next succeeding paragraph of this sec•tion shall be exeln- the time within wliich the taxpayer may niake the return sive; provided that a warehouseperson shall not be rc- for a further specified period not exceeding forty-five days. quired to return fbr taxation personal properhconsigned (C) The countv auditor shall certify any extension of to the warehouseperson for the sole purpose of being tirne acquired by the taxpayer to the tax commissioner, stored or forwarded, if such warehouseperson has no and the eommissioner shall have the same power as to a interest in such property other than a warehouseperson s taxpayer who is required to make return to the comrnis- lien, or any prolit to be derived from its sale. sioner. All the taxable propertv, except investments and other taxable intangible property yielding inc•ome, of a person for whose benefit propertv is held in trust shall he returned by the trustee, an<1 if auy beneficiary of such a trust is a pei'son under a legal disability residing in this § 5711.05 Returns of taxable property; Fidu- state, and for whorn there is no other fiducian, in this state, ciary returns. the commissioner mav require sucJr a trustee to return also As used in this seetion, "legal disability' has the saine the investnients and otlter taxable intangible propert) meaning as in section 2131.02 of the Revised Code. yielding income held for the beiefit of an_v such henefi- Each person slrall return all the taxable property of cian, and not taxed at the source. whicli the person is the owner, except property required All returns made as ficluciarie.s' returus shall be separate by this section or the regtdations of the tax commissioner frotn the frducian"s return as an individual, firin, associa- to be returned for the person by a fiduciary; but this tion, or corporatiat anc'1 shall set forth the name.s of all section does not authorize any person to omit from the persons toward whoni tbe• relation of fiduciary is borne or person's return of taxable property the person's interest in on whose behalf the returns are made, together with thr investments and other taxable intangible property pielding capacihin which the fiducian° so ucts for each of sucb incrome owned or held for the person's benefit bv a persons. fiduciary and not taxed at the source, or other taxable The conuni.ssioner mac adopt and promulgate reguln- property so owned or held by a nonresiderit fiduciarv. The tiorns covering the making of returns not iuconsistent witli retunr of all the taxable property of a corporation shall be this section or sections 5717.01 to 5711.36 of the Rexis'ed made by the president, a vice-president, or the secretary Code, s-o that all propertv taxable in this state shall be and bv the principal accounting officer, that of a partner- returned for taxation. ship, by a partner, and that of an association, bv the managing agent in this state. All taxable property belonging to the persons nanied or indicated shall be returned bv the fiduciaries named, as follows: (A) That of a ward, by the ward's guardian; (B) That of a person under a legal disabflity having no guardian, by the person's father, if living, if not, by the person's mother, if living, and if neither father nor mother is living, bv the person lraving such property in charge;

A-B? § 5711 .06 Listing of transferred invest- ments.

A taxpayer wlio during the caleudar vear has transferred § 5711.08 Repealed, 126 v 66, § 1 f RS investments to the tnistee of a tnist futtd shall list the 2735a; 94 v 162; GC §§ 5373, 5374; 114 v 714(739), investments transferred a.s to ownership and taxing district 3; Bureau of Code Revision, 10-1-53]. Eff 7-7-55. as of the date of such transfer, and as to valuation or This section coneemed residence for taxation purposes. income yield as of such first day of January; in listing such inconte yield, such taxpayers mav deduct therefronr such portion of the inc:ome yield of the equitable interest in § 5711.09 Powers and duties of tax commis- such trust fiond as is represented by the income received sioner; contents of return. during such year by such tnrsteefroin the investments transferred. The tax comrnissioner sttall adrninister sections 5711.01 to 5711.36 of the Revised Code, which are laws which he is required to administer witltin the tneaning of sections 5703.19 to 5703.37, 5703.39, 5703.41, and 5703.45 ofthe Revised Code. He may adopt and pronmlgate niles not incorisistent with sections 5711.01 to 5711.36 of the Revised Code, so that all taxable property shall be listed § 5711.07 Proper taa9ng-distriet for listing and assessed for taxation. The commissioner shall pre- property. scribe the fornrs of all blank returns consistentlv with such Personal property used in business shall be listed and sections, and no return shall be rnade or accepted except assessed in the taxing district in wdrich such business is on the proper prescrfbed fonn. Snch nrles and the forms carried on. If such business is carried on in niore than one prescribed may be varied to meet differing local condi- taxing district in the same county, the return shall set forth tions in the connties, but in prescribing such forms the the atnount of the property used therein which is situated coinmissioner sliall be govenied by the folloxving require- in each taxing district in such county, and the value of all ments: the personal property used in business shall be appor- (A) No taxpayer shall be required to make more thari tioned to and assessed in each of such taxing districts in one retnrn in the same capacity in any one county, but the proportion to the value of the personal property situated commissioner may authorize any taxpayer or class of therein. Domestic animals not used in business shall be taxpayers to make separate returns for each taxing district listed aud assessed in the taxing district where kept. Ships, within the county-. vessels, boats, ancl aircraft, and shares and interests (B) The listing shall be so arranged as to exhibit clearlv therein, shall be listed and assessed in the taxing district in the property assessable in each taxing district, and the which the owner resides. All other taxable property shall property assessable on the general tax list and duplicate be listed and assessed in the municipal corporation in and on the classified tax list and duplicate. which the owner resides, or, if the owner resides outside a (C) Qnestions shall be included which shall elicit a full municipal corporation, then in tlte countv in wbich the disclosure of all taxable property of the taxpayer and owner resides except as provided in sections 5711.01 to infonnation relevant to changes in the value of any real 5711.36 of the Revised Code. Whenever, under such estute owmed or occupied bv hitn. sections, taxable property required by this section to be (D) All forms of returns reqnired to be made to the listed and assessed in the tadng dishict or county in which counh' auditor shall have printed, statnped, or written , the owner resides is required to be listed by a fiduciary thereon the rates of taxation of property on the general tax such property shall be listed and assessed by such fiducian• list and duplicate in each taxing clistriet in tbe county, and in the taxing district or county in which such Rduciarv the day of listing deposits as fixed bv the comnrissioner resides, or, in the case of joint fiduciaries, in which either pursuant to section 572.5.05 of the Revised Code. sueh fiduciarv resides; but such property belonging to the The enumeration in sections 5711.01 to 5711.36 of the estate of a deceased resident of this state shall be listed Revised Codc. of facts requfred to be stated in a retuni, and assessed in the taxing district or countv in which the and questions required to be asked. is not exclusive, bid deceased resident resided at the time of death, regardless the cotmnfssfoner mav propound anv other question in the of the residence of the deceasecl resident's executors, forms of returns prescribed hv hfui, the answer to which is administrators, or personal representatives, and suc•h relevant and niaterial for the prirpose of enabliug the property belonging to a ward, minor, incompetent persou, c•ommissioner, pursuant to Title LVII (57] of tiie Revised or beneficiary of a tnist residing in this state, title, custodN, Code, to assess the taxable propertv of the tupayer or possession of whicb is vested in a nonresident fiduciar), ntaking the retinn, or that of anv other taxpavcr, or to shall be listed and assessed in the taxing district or connh adininister amof the laws relating to taxation. Each inwhich such ward, minor, incompetent person, or ben- question so propounded sball be answered speeificalk, eficiarv resides. and no retuni shall be accepted bv the crounhauditor until As trsed in this sectiott, "incotnpetent person" means a full disclosure has been made as required bv such blanks. person wlro is so mentally impaired as a result of a mental or physical illness or disabilih. or mental retardation, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person's self or property or fails to provide for the person's family or other persons for whom the person is charged by law to provide. A- 8'8' § 5711.10 Option to file verified 1'ederal income tex return. [§ 5711.10.11 § 5711.101 7'a, com- missioner mac require financial statements; substi- II a taxpayer so elects, he nwv. under unifbrm regulations tute IistinK date. prescribed bv the tax commissioner. in lien of listing his investments vieldiug income as prescribed in sections The t:a cummissiclucr mac t'equire that scith ererv 5711.01 to 5711.36, inclnsisc, of the Retised Code, file wdth retmu listinq penonal propertnsed in business or credits. his retuni a verified sutnmanof his federal income tax the taxpacer .sh:dl filr a fiuxncial statenicnt or hulancc sheet ofsnch busiuess as ci( tbo close of bnsinrss on thc retnni for tlte last nrecedinH taxable vear. if sueh taxable vel,r was a full vear of hvelve months, iternized and analvzed in dav next prcceding the date of listiuq. such mamter as the c•ominissioner rnmbr sueli rep,nlations A taxptser who is required to filc e liuancial statcment prescrilre. together with a statement as to the ai;Gregatc or balmtcfsheet of his basiness pnr,snunt to this section arnount of income received hx- hitn during such taxable vear tnac hc audiorized or required bN the coniunissiouer to list his taxaLlo propcrtc as ofthc- elose of hirsiness ut die ond derived from investments taxable under suclt sectious, the of his fiscul cear, insteud of us of the dur otherndse income &om whic•h is not required to bc reported for federal prescribed bs,section 5711.03 of the Resisec[ (;ode. The income tax purposes. For pntposes of this sectlon, incomc coinmissioncr nwtadopt rct,odations to govorn thc usc of does not include distributions bxan investment conipamof the basis of listing authorized br this section. bnt a a gain it realizes on the sale of real propertx or investtnents, taxpaxor who is authurized or permitted tn list taxablcc In ,snch case the aggregate atnomit of iucome of thc taxpayer propertc us of a dux other than that prescribrd hx sectiou front investments of the classes t:ixable under suc:h sectlons 5711.03 of the Reisecl Code. shall thereafter uso tLe sauic rnav he included iu the taxpaeer's rettini xcitliout specifica- basis mdess the cummissinner. for guod cause shoNrn, tion as to the sources thereof, and shall be taken as the authorizes the substitution of anotlier fisc:d \ear. or- unless assessinent of Itis investments yieldinK inconie, in Ilen of the the conuni.ssiunor reqnires or. upon application of the assessment thereof as otheiwise presc•ribed, uuless thc tap¢ser, anthorizc,s. tlie snbstihition of .mnther listing eotnmissioner finds that snch federal incnme tax retuni or date to insuro that propertY subject to tavation under thci stunman' thereof has been improperhniade out, in which prcroisions of section 5709.111 or 5709.02 of the Re0sed event the coni-rnissioner sltxll assess such investntents ou Code, and acquirecl b, nteans olpm-chuse. mery;or. or the basis on wltich the inconte tlierefruin should hare beeu reorganizationc invohing nn entire plant, a ftuilih- or a reported fbr federal incotnc purposes, and set forth oo the divi.sinn. shall not be excluded from taxatiou for a vemor sumnurv thereof, or on the basis on which sueh investinents ta,xed more thcm ouce in a veeu. fn the cuse of such would be required to be listed and assessed under such acquisitiun the conimissinner shall reqnire or authorize a sec•tlons if the election authorized by this section were not substitntc listitig date onk_ fiusuch acqnire•d propertc tmd made, If a taxpaver nmking the ele,c•tion provided in this oulr for ouc vear. section is required under section 5711.22 of the Revised Nu dncunient authurized or requircd bc this section to Code to list as tmprodactive investments share,s which were be Oled with returns of taxable properh- shall be decmed not outstanding for the full ealenciar vear next preceding the a public docnment nr record, hut sh:Jl be a confidential listing date. he shall deduct f}oni the aggregate amount of docimncnt Inr the u.se of the depmtinent of taxatiou onhin his incotne from investtnents am' incnme received bshim assessing taxablrc propcrh during such calendar vear on such shares and on anc investments exchanged for or converted to such shares, The eommissioner rnav require that with even return listing § 5711.11 Certain returns shall he made in investments, the taxpaver shull file a coptof his federal duplicate; eountv auditor to assess property; returns income tax return for the next preceding taxablc vear, or are confidential. portions thereof, shoxving income received bv him from investments of the classes taxable tmder such sections during Retnrns listing personal propettN,- used in businr,ss or such year either direc•tk or through Oducianes. No docu- credits .shal bc made iu duplieate. Onc cY>pN of each ment authoriz.ed or required bv this section to be' filed with return su utade shall be retaiued bv the countv auditor aud retnnms of taxable property shall be cleemed a public docu- the other copt-slndl he for the usv of the t,cx c•onnnissioner. ment or record, but shall he a confidential document for thc As to all taxable properts- shmn^i iu all other rettirns use of the departrnent of taxation onlv in assessing taxable required hv sections 5711 01 to 5711.36 of the ReNised properrv: and tn t6at end all sucli docnments Oled bsa Code, to bo made to dhr .utditor, the auditur shall- as taxl>ayer shall be enelosed in a sealed emelope or other depuh-of the coinmissioner, act as assrssur of suc6 tttsable sealed package addressed to the commissioner which shall propcrhtior the puipose ctf the prc•liminarc as.sessinent not be opened by anperson other than the comnmis.sioner or thu;renf- hut the conimi.ssioner niar byorder reqnire the hts authorized agent, assistant, or emplocee. The counh nuditur to make and trausmit to him a copc of a particu- auditor shall on demand fumish suc•h envelopes or packages larlxdesignctled retnru. Tho andltor shall stainp the date ol of ditnensions prescribed bt' the comoiis.sioner. the inaking of' the retmu upuiu eacb retunn und copN- The conmiis.sioner mar adopt regtdatious to goveru thc Neither the retinns nor the cnp e,v of returns shall be upeu use of the basis of listing authorized ba this section- but a to public iuspection. The conunissiouer inaxrequire au- taxparer who, after )ammtv 1, 196f), avails hiniself of the ditors tu liiruisli such et;ttistics and othrr iufbrnmtion as the cumniissinner nlac urder. option mtthotized bv this seetion shall thereafter nse that basis for a period of`not less tltarn tliree eears in listino his investntents vielding income. Thereafter, for good causr § 5711.12 Rcpoalod. 126 c 314. ^ I [CC shown, the c•omn».ssioner tnaiuuthodze the snbstitution 5:372-5; 1 I d c7Id173A1. §:3: 124 \ 4-19, ^ 3: Ruremt of of the basis othensise prescribed bc sectious 5711.01 to Coda Rexision. 10-1-03j- 1':ff 9-30-o'n. 5711.36, inclusive, of the Revised Codc. Thi> >rvtiou hru^9dcJ th.it frdortl iucomo tacpa'crs filr an ULiu propern' rehiru uhen su nnlc•rrd h, the txx c'ommiasioner. ^^^'9 § 5711.13 Taxpaver shall make combined return; assessment; certification to treasurer of stale. § 5711.14 Consolidated reluros for curl>ora- tions; joint rcturns for husband and wifc. Rellinnink in tu, cear 3004, ricb tnspacer liminrT tccxable propertv rtitli an at~Grekate t.reable safne in exces.s of ten A coiporttinn which ossrns ur controls ut least fifh-one tboasund dollars and reynirecl tn be listed in nrore thau perernl of the crnmoou stock ofanothercorlmi,itiun mur, one counhshall m;ike a comhinecl retnrn to thr taN midor unifnrm re>;idatiou. prr•scribr(1 bc tbe tas coinmis- cnmmissioner listin^ all its tasahle propertxin this state, in sioner, innkt= a c_onsrrlidated retnrn firr tlic pnrpusc of ccmfirrmiK with sections .5711.01 to 5711.36 of the Re- sections 571 I.01 l0 5711 3(i, inclusicn• of the lievised visecl C:ude includhi;,> prroperhexempt nuder dM . sion C:odc In such cuyr all thr-taxahle propcrtv nicuCioncd In (C1(:3) of sectiun 5709.t11 of the Rerised Code. bnt the sectiou 57(19.01 of the Revisecl Codc belonqin,f; to the taxp;ner shall not assi;!n properhof the kinds njentionecl corpoiirtiou makinw the retura aad to each of its sub>idi- in sectinn 57119.02 of thc Resised Code to anv purtleidar aries shall be listed xud asses,sed in tlie uame of tbe taxhi^ district or cnnnh- The tax commissiuner shull assess sep,tratc uwuvrs tbrrcof: bnt thc parc'nl corlwration nr.tk- the pesonxl properh^ otssich t.cxpaver in tht sereral taxing inl; ,auch return shall rnnt bc requiird to list anv of its districts iu rchicli it is reyaired to be assessed uncler investmouts in the.stocks,.secnritirs, uudother obligaions seetions 57I1.01 to 5; 11.3fi of the Reeised (:ode, and shall ofits subsidiarics, aud in coniputin;; the unwmd of taxable issue assessment eertifieates therefor to the proper eoantc credita inlercumpmrNacromits sh:dl br cliuiimderl. "1'he auditnrs:d the time and in tbe mauner required brsectioii connninsioner innr aclopl re^ulutious to goveru the nse of 5711.25 of' the Retised Code. All other properhof such cousolidatcd retuns uathorized bstllis section, bnt a taxpayor rctpiired to he so li,stecl shall be entered on thr curporatiun rvhich mails itself of the option permitted or intangible- propertq tax list in the office of tbe treasiuer of authorized Iw this sectiou sliall theresdler contiuue to file state, tmd shall bc subjret to ttuatiou undcr scction cconsoliclated returus nntil the parent corporation notifies 5707.11:3 of tho Iic,isctl (:otlc. -I'he coInmissiuncr shall the cummissioner In writiag, oa or beforc• the hventieth assess all other properh of each such taxparer :mtl, on or dac of April of thr srnr In whicb the returu is due, that it dor.s uut iutentl to file a con,sofidated retnni for nuch oear, before the sec•oud Alonctamof August annnallv. shall ecrtiF tlie tot:tl Nahre or amonnt of each kind therenf to the A husb:uid ;md rsife lisiu;; together muc. uucler mrifornl trettmrer of state, s+ho shall enter the suhic or anronnt ou ref!itlatious prexcrihwd bsthe cunmrissioaei; make a joint thc fntnugiblo properhtcx list in thc treasurt,r of stat<^s rehun fbr tho pmpuse of see•tions 5711.01 to 5711.38, offiee in the numner pruricled in sec•tiuns 5725.(II to inclusiva•, ofthc Recised Codo. In snc•li case investnient.sof either ,sponsr iu the obligations of tbe other shall aot be 5725,26 of the Revisal Code. Sections 5711.111 to 5711.3 (i of the Revised Code .shall apphto aucl nu'eru ,snch rerlidrtvl tu hc Ifsteil tLorcin, aatl tu computiqt; thr t.up:n'er, its proper ofNcers nnd rrprexrutrdires. tbe com- umoiwt of ttuable credits snch obliGutionx shall be eliini- uatr.tl. wissioner, uncl tho cnunh' auditur as to ull prucevclin^s iu the assessnieut of the proht^rhof sucb tarpatrr

§ 5711•15 Valuation of inerchandise offered [§ 5711.13.1] § 5711.131 Taxpayer for s:de. to file comit" supplemental return. A nierch.art in estimatin^ the valne of the personal A taxlmver r'cynired twtlcr soctiou 5il1.1:3 olthr property held finsale in thacourse of his bnsiness slrall Rerisecl Code to file a cumbiuvd rohvii sritb thr t:u take as tlre eriterioa the arrrakJe valu of auc6 pmperh, as c•ommi.ssioner shall, at the tirnw ,sncli rctiun i,< filvd, blc, a provided fn this sectiou of the lievise ed Cude_ which he has counv supplewcutal retiuii with tbc couuhnuditor of had lu his possession or under Iris cnntro) drning, the vear eac•h comrtr ill trhich: endiu;; on the dav snch properhi.s listed for t;txatiou, or (A) The taxable ralne oft6at t:apmers taupiblr- pe- the part of such veur duriug which he w;a eut;aged in sonal properhsvitlriu :wr tasiu" dishict of tho uouuhhaa bu.siness. Sac6 avcragc shall bo ascertaiucd bv tnkinQ tho incrc.ued ur devreased iu excriss o( fise bundred thonsand amonnt iu cnh^c on hand, as nr,n'ly as pus.sijilc, ln each dolluca frnni that rrported b\ Ihat tacpawr in suc6 tacini( rnontb of such rear- iu which be bus been engu.,qed iu di.strict for tlie precedimr tas eem; or busine.as, addiug to;?ether snch mnoimts, auel clicidiu;; the (B) The tx.xpaser, witb its returu, filed a claiin for aggrc;;atc amomit bv the mm^ber nf inouths th:rt he htcs deduetian from book calne us prusiclrd bc,seetion 5T 1 1.19 beeu in busiuvss Juriu", sncb sear of tbe Resised Code that sr'oidd redueo the tacable calurr iu As used ill this section a"niorc-0raut is n persnn a,ho auv tasiu,G di.strict in thc crmnhbv Ihc hundred thousawd oscvs or h:rs in possession or snbject tu Ilis uontrol personal dollars or nroro. propr•rh Ncithiu tbis vtatc sritli :wlhorihtu sell it, whicli The.snpplemenlal retmn nball contuiu suclr sununw,, oi Itn,e Ircen purchusevl either in or oid of diis state, svitb e ta.cable vulues as tlre cnnunissiuner btrnle reiluirea tu view to beiqq sold at an udvanced Inicc or prolit, or which euable the counhanditor to deteruiiue bt the first dar of has beeu consiguetl to fhPni tinni ;t plaao ont of thlsstate for Juk, thc iuereast- ordeerease iu tacablc culue iu eaeh sucli the purfwsc of beiu,t^ sold ut a place witbin this st:dr. txxink district in the counhIbr the cuneut t:u cew. Uu or beforc• the tenth duc of jok uf eacli ccar. the cuunh au(litor shall eertifl- to the fiscal officer of each t:uing rlistrict fi>r ssbicL a supplenr•nt.J 1et1111) is filecl, tbr chanhe iu tvable <

b^nrn un the snpplemental rrtnrns filed under this section /q - q0 § 5711.16 Listing of personal propert y bc manufacturer; average value of manufacturing in- ventorv; list of ntanufacturing equipmenl. §5711.1 ^ ^ Separate listing of property by manufacturer. (A) As used in this section lll "Mauufachlrer me;tns a persuu %cbo pmrhases_ All personal property used in business and belonging to rec•eives. or hol(Is perso0al pruperh for the purpose of a manufacturer, except that required to be listed on the adding to its vtdnr I)x' mmutfaotting. refinint(. rectihin". average basis bv section 5711.16 of the Revised Code, and or contbiniug dilir'rc•nt matcritds vvith avicw of maklut; a that specifically mentioned in sttch section, shall be listed gain ur profit It\ so doiug. separately from the propertv of such manufacturer men- (2) "M.uutfacturing eqnipment` mcans nwchiut•nand tioned in said section. eqnipmcut. aud fools and implcinenLs. iucluding am tiISTORI': GC 4 5387; 115 v 503; Burean of Code 6evision. Eff associated pcttterus, jig.e, dies, draxviugs. and business 10-1-53. Iixtturs. uscd at a mauufacturing f;tcilih bc a nianuf;a- tnrer, and includes aux such pruperhIeased to tLe mmuuLicouer. "bumfacturiny, eluipwrnt exclnde. § 5711.18 Valuatlon of accounts and per- prol>ertti' nsed fur gcueral ofTice purposes. Nothiug in tlds sonal property; procedure; income yield. divisiou is to be coustnied tu cltaugr the definitiuu of In the case of accounts receivable, the book value persunal pruperh', as defined in sectiou 5701.0:3 uf, the thereof less book reserves shall be listed and slhall be taken Revised Code. as the tnte value thereof unless the assessor finds that sucb (3) "Maunlucturing facilih-me.ms a Pacilihor purtion net book value is greater or less thau the then tnte value of of u facilih used for manufacturing- miniug, ref)ning, such accounts receivable in money. In the case of pe.rsonal rectif ving , ur aombining different ntaterials with a ciewof property used in business, the book value tltereof less book makiug n gain or profit hv so cloiug. "Mauulacturiug depreciation at such time shall be listeth and such depre- fac•ili' inclndes tbat portion of a facilihuscd to store or ciated book value shall be taken as tlhe tnre value of sucli transporl r:nv nwteri;ds, work-iu-proeess, or fiuished goods proper[y, unless the assessor finds that such depreciated iuventon. for packaging, for resexch, or to test fur qualitv book value is greater or less than the then tnte value of control, as long as ntannfacturing. miuing. refining, recti- snch propertv in money. Claim for any deduction from net fying. or combining is alsu perforined at the Iacihh book value of acc•ounts receivable or depreciated book "Mmrniactiuing facilihdoes not include .my portiou of a value of personal property must be made in writing by the facilitv used primar9bfor muking retuil sales. taxpayer at the time of making the taxpayer's return; and (4)"Manufacturing inventot^" nteaus all articles pur- when such retuni is made to the county auditor who is c•hased, received, or othervvise Iield for tite purpose of required bv sections 5711.01 to 5711.36, inclnsive, of the being used, in whole or in part, in manufaeturing, mining, Revised Code, to transmit it to the tax commissioner for eombining, rect3fying, or refining, and of all articles that assessment, the auditor sball, as deputy of the commis- were at any time tnanufactured or changed in ana way bx sioner, investigate suc•lr claini and shall enter thereon, or a manufacturer, either by rnining, eotnbining, rectifying, attach thereto, in suc•h form as the comniissioner pre- refining, or adding thereto. scribes, the anditor's findings and recotninendatlons with (B) Wlien a tnanufacturer is required to return a respect thereto; when suc6 retunr is tnade to the comntis- statetnent of tlre atnount of' the tnanufactnrer's personal sioner, such claim for deduction from depreciatec] book property used in business, the maruufacturer shall include value of personal property sliall be referred to the auditor, the average vahte, estimated as provided in this section, of as such deputy. of each county in which the properh^ manufaeturiug inventory that the manufacturer has had on affected thereby is listed for investigation and repott. hand during the vear ending on the day the property is Any change in the metbod of determining tnte value, as listed for taxation annuallv, or the part of such year during prescribed by the tax commissioner on a prospective basis, which-the manufac•turer was engaged in business. The shall not be adrnissible in any judicial or administrative nianufacturer shall separatelv list finished products not action or proceeding as evidence of value witlt regard to kept or stored at the place of manufacture or at a pnor years' taxes. Infornration about the busiuess, prop- warehouse in the sante eounh. erty, or transactions of anc taxpayer obtained by the The average value of such propekv shall be ascertained cornmissioner for the puriSose of adoptlng or tnodifyittg be taking tlte value of all property subject to be listed on am- sucli metliod shall not be subject to diseovenor the average basis, owmed by the manufacturer on the last disclosure. business day of each month the manufacturer was engaged in business during the year, adding the monthlv values together, and dividing the result by the number ot` nionths the manufacturer was engaged in suchi business during the year. The result shall be the average value to be listecl. (C) A manufactttrer also shall list all manufacturing equipment owned or used by the manufacturer.

A.# I! § 5711.19 Determination of trust income; (1) The tnte value of tbe properth as it would be cash distribution. determined under this chapter if none of the electricih were distributed to otliers multiplied bv the per cent of the The net income received bv a tntstee from the sources electricity getlerated in tl'ie preceding calendar year that mentioned in section 5701.10 of the Revised Code shall be wa.s used bv the person who getrerated it; plus determined bc deducting all expenses attributable solek (2) The trve value of the I>roperty that is production to particular sources of gross non-taxable ineorne from the equipment as it would be determined for an electric income from such sources, and ckarging the excess of such companc under section 572t.11 of the Revised Code expenses over the income from such sources, together multiplied bv the per cent of the electricitv generated in with all other expenses and charges, to the taxable gross the preceding calendar vear that was not used bv the inc•onie from the sources mentioned in sucb section, person who generated it; plus provided that tntstee fees shall be apportioned between (3) The tnie value of the propert r that is not production gross taxable and non-taxxble sources and charged thereto equiptnent as it would he determined for art electric If net incotne is accunmlated othenndse thml ttnder the company uncler section 5727.11 of the Reised Code circumstances tnentionecl in section 5711.29 of the Re- multiplied by the per cent of the electricity generated in vised Code, such accumulation, and the cash distnbution the precediug calendar year tbat was not used by the of the remainder of such net income, shall be considered person who generated it. as made pro rata from each source of net income, (C) For tax vears before tax vear 2(l)9, the tnre value of ascertained as required bv this section. Inc•ome shall be personal propert), leased to a public trtilih' or considered to be distributed in cash if it is withheld by the interexchange telecommunications company as deffned in trustee contrarv to the terms of a trust instniment or ttill section 5727.01 of the Revised Code and used by the or if it is applied bv the tntstee to the use of the taxpaper, utility or interexchange telecomnrunicalions company di- or used bv the trustee in paying preniiunrs on policies of rectly in the rendition of a public utility service as defined insurance on the taxpayer's life, or of which the taxpayer is in division (P) of section 5739.01 of the Revised Code shall a beneficiary. Inconie shall be considered to be di.stributed be determined in the same manner that the tnre value of in cash, whether such pavment or distribution is in cash, such property is detertnined under sectiort 5727.11 of the notes, debenture,s, bonds, or other properh. ReN4sed Code if owned by the pttblic utility or HISTORY: GC § 5389-1; 115 v 566; Buresu uf Code Revieion. interexchange telecommunicatfons companc. 10-1-53; 126 v 67. Eff 10-4-55.

Ohio Administrative Code § 5711 .22 Listing and rates of personal Intan6oble personal properhuix: repeal; effect of unrepealed property tax. sections. OAC 5703-3-23- (A) Deposits not taxed at the source shall be listed and assessed at their amount in dollars on the dav thev are § 5711.20 Repealed. 128 v 244, § 2 [CC required to be listed. Monevs shall be listed and assessed § 5389-2; 115 v 566; Bureau of Code Revision, 10-1$31. at the arnount thereof in dollars on hancl on the day that Eff 6-18-59. they are required to be listed. Irt listing investments, the amount of tlre incotne vield of each for the calendar year This section concerned income vield of shares when corpor:o- next preceding the date of listing shall, except as otherwise tlon merged. con.solidated. dissolved, or its amount of .stoc•k changecl. provided in this chapter, be stated in dollars and cents and the assessment thereof shall be at the amount of such income vield; but any propertv defined as investments in either division (A) or (B) of secfion 5701.06 of the Revised § 5711.2i 1 Rules governing assessments. Code that has not been outstancling for the full calendar (A) In assessing taxable property the assessor shall be year next preceding the date of listing, except shares of governed bv the nrles of assessnient prescribed bv sections stock of like kind as other shares of the swne corporation 5711.01 to 5711.36 of the Revised Code. Wherever anp outstanding for the full calendar year next preceding the taxable propertv is required to be assessed at its tnte talue date of listing, or which has yielded no incotne during such in monev or at anv percentage of trne value, the assessor calendar year shall be listed and assessed as unproductive shall be guided bv the statements c•ontainecl in the taxpav- er's retunr and such other rules and eidence as will Investments, at their tnie value in money on the day that suc•h investments are required to be listed. enable the assessor to arrive at suclt tnre vahte. Wherever the income vield of taxable properh- is required to be Credits and other taxable intangibles shall be listed and assessed, and the method of detertnining between income assessed at their true value in moneton the dav as of and return or distrihution of ptinciptil, or that of allocating which the same are required to be listed. Shares of stock of a bank holding companv, as defined in expenses in determining net income, or that of ascertain- Title 12 U.S.C.A., section 1841, that are required to be ing the sourcr from which partial distributions of income have been niade is not expressly prescribed btsections listed for taxation under this division and upon which 5711.01 to 5711.36 of the Resdsed Code, the assessor shall dividends were paid during the vear of tlteir issuance, be guided bv the statements contained in the taxpayer's which dividends are subject to taxation under the provi- retuni and such geueral niles as the tax commissioner sions of Chapter 5747. of the Revised Code, shall be adopts to enable the assessor to make .such deterntina8on. exempt from the intangibles tax for the year immediately (B) For tax years before tax vear 2009, the true value of succeeding their issuance. If such shares bear dividends the boilers, machinep-, equfpment, and any personal the first calendar vear after their issuance, which dividends properth-used to generate or clistiibute the eleetricitvshall are subject to taxation under the provisions of Chapter be the sum of the following: 5747. of the Revised Code, it shall be deemed that the A- 9 z. (E) Persou.J propertv ^-alued pnrsuant to sec•tiun nondelinquent intangible property tax pursuant to division 5711.15 of the Revised Code and pers-onal propertv (A) of section 5707.04 of the Revised Code was paid on required to he listed on the averaKe basis bv division (B) of those dividends paid that first calendar year after the section 5711.16 of the Revised Code, except property issuance of the shares. described in divi.siou (D) of this section, basiness fixtiires, (B) For ta.x years before tax year 2009, boilers, tnachin- and hni6ure not held fin' sale in the conrse of business, ery, equipment, and personal propertv the true value of which is determined under division (B) of section 5711.21 shall be listecl aud assessed at twentv-three per cent of its of the Revised Code stiall be listed and assessed at an tnte valae in monev for tax year 2()05 an(I at tbe percent- amount eqttal to the sum of the products determined age of such true xalue specified in division (G) o( this under divisions (B)(1), (2), and (3) of this section: section for tax vear 2006 and each tax vear thereafter. (1) Multiply the portion of the true value deterinined (F) A11 manufactnring equipntent as defined in secticm under division (B)(1) of section 5711.21 of the Revised 5711.16 of the Revised Code shall be listed and assessed at Code by the assessment rate for the tax year in division (G) tite folloxving percentage of its true value in moncv: of this section; (1) For all sucli propertv not previouslv used in bnsi- (2) Multipfy the portion of the tnte value determined ness in this state bv the owner thereof, or br related under division (B)(2) of section 5711.21 of the Revised member or predecessor of the owner, other than as Code by the assessment rate in section 5727.111 inventory, before ]anuan1, 2005, zero per cent oftwe (572711.11 of the Revised Code that is applicable to the valne; production equipment of an electric company; (2) For all other such property, at the percentage of (3) Multiply the portion of the true value determined tnte value specified in division (C) of this sectiou for tax under division (B)(3) of section 5711.21 of the Revised year 201.5 und each tax yeai' tliereafter. Code by the assessment rate in section 5727.111 (C) Unless othenvise provided bY lew, all other per- [5727.1.1.1] of the Revised Code that is applicable to the soual propert y nsed in business that has not been legalll- property of an electric company that is not production regarded as an improvement on land aud considered iu equipment. arriving at the value of the real property assessed fix (C) For tav years before tax vear 2009, personal prop- tmatfou shall be listed aud assessed at the following erty leased to a public utility or interexchange telecom- percentages of true value in money: munications company as defined in section 5727.01 of the (1) For tax year 2005, twenty-five per ceut of true Revised Code and used directly in the rendition of a public value: utilitv service as defined in division (P) of section 5739.01 (2) For ta year 2006, eighteeu aud three-fourths per of the Revised Code shall be listed and assessed at the cent of tnie value; same percentage of true value in money that such property (3) For tax year 2(H)7, twelve and one-lialf per eent of is required to be assessed by section 5727.111 [5727.11.1] true valae; of the Revised Code if owned by the public utility or (4) For tax year 2008, six and one-fonrth per c•ent of interexcliange telecotnrnunications company. trae value; (D)(1) Merchandise or an agricultural product shipped (5) For tax year 2009 and eac•h tax year thereafter, zero from outside this state and held in this state in a warehouse per cent of tnte value. or a place of storage without fitrther manufacturing or (H)(1) For tax year 2007 and thereafter, all personal prucessing and for storage only and for shiptnent outside propertv use(I bta telephone company, telegraph c•oni- this state, but that does not qualifv as "not used in business pan), or interexchange telecommunications company shall in this state" under division (B)(1) or (2) of section 5701.08 be listed as provided in this chapter and assessed at the of the Revised Code, is nevertheless not used in business following percentages of true value in monec: in this state for property tax purposes. (a) For tax vear 2007, tWenh' per cent of true value; (2) Merchandise or an agricultural product owned by a (b) For tax vear 2008, fif- teeu per cent of tnie valuc; qualified out-of-state person sliipped from outside this (c) For tax year 2009, ten per cent of tnre value: state and held in this state in a public warehouse without (d) For tax vear 2010, fiee per cent of tnte value; fitrther manufacturing or processing ancl for teniporaty (e) For tax vear 2011 and eac}h tLLx year thereafter, zero storage only and for shipment insicle this state, but that per cent of tnie value. does not qualifp as "not used in business in this state" uncfer (Iivision (B)(l) or (2) of section 5701.08 of the (2) The property owned by a telephone. telegraph, or Rcviseci Code, is nevertheless nbt used in business in this telecommnnications cornpanv shall be apportioned to each state for properhtax purposes. appropiiate taxing district as prosdded in .section 5727.15 (3) As used in dixision (D)(2) of this secflon: of the Rexdsed Code- (a) "Qtialifieci out-ol-state person' means a person tlmt (1) During and after the tax vear in which the assess- does rnot owu, lease, or use property, otlier than merchmr meut rate equals zero per cent, the propCm- described in disdsiou (E). (F), (G), or (H) of tbis section shall not b( dise or an agricidtural product described in this division. in this state, an(I etoes not have eniployees, agents. or listed for taxation. (J) I)ixisions (P:1, (F), (G), ancl (H) of thi.s section appk representatives in tlus state; to the propert c of a person dcscribed in chvisiuns (F)(3) to (b) "Public warehouse" ntean.s a warehouse in this state ( 1(1) of section 5751..01 of the Recised Gode. Diaision (]) of that is not subject to the cootrol of or under tlie supeni- thi.s section cloes not prevent the application of the sion of the uwner of tbe merchandllse or agricaltural esemption of propertv froin taxation under sectiou product stored in it. or staffed b_c the owner s emploeees, 6725.25 or 5725.26 of the Bexised C:ocle. and from whieh the propertc is to be shipped inside thfs state. A-q3 [§ 5711.22.1] § 5711.221 Trastee § 5711.25 Preliminary assessment certifi- may report investrnent income on a fiscal or calendar cates; final certificates. year basis. In listing investments of tlie kind defined in division (D ) On or before the second Monday of August, annually, of sectlon 5701.06 of the Revised Code, as of the date the tax commissioner shall transmit to the countc auditor prescribed by section 5711.63 of the Revised Code, the of eac•h eountv the prelitninanassessment certificates amountof income yield of each sueh investment, during pertaining to the auditor's counh' ©f taxpayers having the fiscal or calendar year used by the tnistee or 6dueiary taxable property irt more than orte eounty. The conimis- of each such investment shall be stated in dollars and cents sioner shall transmit to the auditor any atnended assess- and the assessment thereof shall be at the amount of such ment certificate issued by the cmnmissioner, and the income yield. The tax conunissioner may adopt and auditor shall transtnit to the commissioner copies of all promtdgate niles and regtilations to govern the use of the amended assessment certificates made and issued by the basis of listing anthorized bv this section. auditor. Each preliminan, assessment certificate, and if HISTORY: 129 v 206. Eff 7-21-81. amended such preliminarv assessment certificate as last amended, shall become final on the second Monday of' [§ 5711.22.2] § 5711.222 Repealed, Augnst of the seeond year after the filing of a rettrni Hdth 136 v H 1, § 2 [132 v}I 486]. Eff 6-1.3-75. the county auditor or after the certificafion of the prelim- inary assessment certificate, or sixty days after the certifi- This section provided for rates of assessmeut of personal cation of an amended assessrnent certificate which has property used in agriculture for the years 1968 through 1972. been issued less than sixty da,vs prior to such secortd Monday of August; unless prior to the expiration of said § 5711.23 Reclassified property assessable. period or extendeci period one of the following occurred: (A) A final assessnient certificate as to the taxpayer When it lms been determined by a board of revision, the represerited thereby has been issued pursuant to section tax commissioner, the board of'tax appeals, or a court that 5711.26 of the Revised Code; taxable propertv which has been listed and ossessed for the (B) Such taxpayer in writing has waived such time purpose of taxation as real propertv for any year should not limitation and consented to the issuance of the taxpayer's Irave been assessed as suc•lr, or when any taxable property assessment certificate after the expiration of sacti time previously listed and assessed as real property has been Ifmitation, in which case the assessment certificate issued retnoved from the auditor's list of taable real property or after the expiration of such time Iirnitation, if an amended the real property tax list and duplieate, such property shall preliniinary assesstnent certificate, shall becorne final sixty not be listed and assessed as personal property until the days after the mailing of the notice of such assessment if year sueceeding that for which such deterinination was no petition for reassessment of the assessrnent has been made, or the year succeeding that in which such removal filed pursuant to section 5711.31 of the Revised Code; occurred. (C) A petition for reassessment of tbe assessment rep- resented thereby has been filed pursuant to section 5711.31 of the Revised Code, in which event the filing of such petition shall waive such time lirnitation and he a § 5711.24 Power of tax commissioner to consent to the issuance of the petitioner's final assessment assess; preliminary assessment. certificate at the tltne, under the circumstances, and bv the authority provided by any law rela6ng to further The tax c•otnmis.sioner shall assess all taxable property, admiuistrative or judicial review of the assessrnent repre- except propert y listed in returns which the countv auditor sented thereby; provided that in the event of the dismissal is required to assess as his depuh, and shail list and assess of suclr petition by the petitioner, the assessment shall all such property whieh is not returned for taxation, and beconie final as provided in this section as though no for that purpose shall have and exercise all powers vested petition for reassessment had been filed. This section does in hiiu by law for the purpose of adniinistering any law not deprive any taxpayer wlro has not received the notice which he is required to administer. The action of the prescribed by section 5711.31 of the Revised Code at least assessor in assessing taxable property under sections sixty days prior to the expiration of sueh period of 5771.01 to 5711.36, inclusive, of the Revised Code, sltall limitation of the right to file such petition for reassess- be taken as to taxable property required to be listed in a ment. This section shall apply to all assessments made and return, whether listed or not, and whether such return has certified tinder sections 5711.01 to 5711.36, 5725.08, and been made or not. 6uc•h action sh,dl be evidenced by a 5725.1.6 of the Revised Code. preliminary or final asse.ssment certificate in such form as The assesstnent certificates and copies thereof inen- the commissioner prescribes, and when is.sued bv the tioned in this section shall rtot be open to public inspec- eommissioner it shall be ttnder his official seal. The Rling tion. of a return with the countv auditor pursuant to section.s 5711.01 to 5711.36. inclusive, of the Revised Code, shall be deemed to be the prelitninarv assessment of the taxable property contained therein when entered on the proper duplicate bN- the county auditor. F.ach such c•ertificate shall show in what taxing district in the counhsuch property i.s assessable, as provided in sections 57I1.01 to 5711.36, inclusive, of the Re

Except for taxable properhcouceniing the assessment A cops- ofthe final ussessntcut certificvte shall be of which an appeal has beert filed under section 5717.02 of tratismitted to the trea.snrer of state or the proper cumth the Revised Code, the tax commissioner niae, within the auditor, who shall niake auc corrections to his records mid time litnitation in section 5711.25 of the Revised Code. tax lists and dnplicates re(luirod iu aocurdauce theremth and shall, upon application filed wfthin such tlme liinita- atid proceed as prescribed be seetiou 5711.32 or 5725.22 tlon in accordance ssdth the requirements of this section, of the Rerised Codc. finally assess the taxable propertv required to be returned Au appeal tnmbe take n from uur a.ssessineut authorized bv any taxpayer, financial institution, dealer in intangibles, bc this .section to the bow-cl of ta, appeals as pro'rided bv or domestic insurance companv as to which a preliminan sectiou 5717.02 of the lievised Codc ),l%hen such all or umencled acssessnlent has been tnacle bNor c•ettified tu appeal is fllecl aud the notice of appeal filed with the a eonnhtrea.surer of cettiliecl to the auditor of state or as c•ommissioner has attached thereto and incorporated to ^t^hich the preliminana.ssessnient is evidenced bv u therein bsrelerenco a tnie copc of unv asst-ssment retum filed with a c•onutc auditor for auy, prior vear: and authorized bv this sectiou as required br section 5717.02 tho cummissioner nwc fluallv assess the ttixttble propert^ ofthe Rerised Code, the coumiissinner shtdl notifRr the of a taspayer, fimmciui institution, de:iler in intangibles, or treasurer of' state or the auditor and treasurer of'each domestic insnrtnce csmipanv who has failed to make a counhhusinf; anv part of such assessinent entered on the tac Iistnr duplicate. rehun to a counhauditor or to the department of taxation in amsuc•h vear.Applicvtion fbr final assessnient shall be Upon the final deteruiination ofaii appeal which mavbc filed with tltcc tax commi.ssioner in persou or hy certified taken frotn an assessment authorized bv this srction. the mail. If the application is filed bvi certified mail, Ihe date of commissioner shall notify the treastuer of state or the the United States postnwrk plac•ed on the sender's receipt proper countv auditor of' such final detenninat5on. The hythe postal emplovec to saliom the application is la-e- nntification mav be in the fonn of a eorrected asses.sment sented sh;tll be treated as lhe date of filing. 'I1te applica- eertifieate•. Upon rec•eipt of the notification, the treasurer tion shall harc attuched t4tereto and incorporated therein of state or the connts,aoditor shall ntake aw eorrections to bv reference u tnte copv oftlte most recent prelintinan, or his record,s and tax lists and duplicates requirecl in accor- amended assessment, s8hether esidencecl bvi certificate or dance thereivith and proceed as presctibed bv section return, to which correction is sought tlu-ough the issuance 5711.:32 or 5725.22 of the Revised Codc. of a final assessment ccrti6cate. 7'he application shap also 7'he assessment certificates mentioned in this section, have attac•hed thereto ancI incorporated tlterein Inrefi•r - and the c•opies thetreof, shall not he open to pablic inspection. euc•e evideuc•e establishing that tbe ttues, and any penal- ties and interest thereon, due on such prelitniuanor amended asse.ssment Itave been paid. BNfiling such application within the time prescribed hc sec•tion 5711.2.5 of the Reised Code, the taxp:n'er has waived sucli time limitation and cou.sented to the i.ssuance of his asse,zmient certificate after the espiration of such time liniitatiorn. For tlte purpose of issuing a final assessnient t6e cotnmis,sioner meqntilize trll fitc•ts or information ho possesses, and shull certifc in the tnauner laesctibed bc law a final asses.sment certificate in suclh fornt as the case• mas, requirc, giving notice thcrrof bv mail to thc• taxpaNrr, financial fnstitutiou, dealer in intauf!ibles, or dumestio insnranc•e company. Sur6 final asses,smeut certificate shall set forth, as to each vear cocered, the amonnt of the fim,d assessment as to each class of properh- and the amonnt of the correspondfng preliminan or Iast amencled assesz- ment. Iflio preliminanor wneuded assessnteut was madc- the amouid Ilsted in tlte taxpucers retuni for cach such class of propcrh^ sltall be shosni. If thc anwunt of amfiual assessmeut ofaussuch cl,tss tur amvear exceeds t6c amou ut of the preli minan- or ai uendecl tcssessment of suc6 class fbr .snch vear, thr dillcrruce shall be designated ,t ..deficirncv- and if iio preliminanor amended asseac- 111cnt Itas bern mude. each item ill the fiual assessinent certificate sltall he w desit,,natecl. lf the final assessmeut of amsuch chus for anc snch Ncar is le,ss iu amount than the pre.liwinanor amended tcssessnient thrreof for such cear, the difference shall he designated an "ezce.ss.T6c coiu- mis.sioner shall add to cach snch deficieucv assessmeut th, penalh, procided bc a.lw compnted on t6c anionnt of such cleficiencc. ^

A-R5 § 5711.28 Notice of penalh° assessment; pe- § 5711.27 Penalty assessment for failure to lition for abatement; amended assessment certiR- property; personal make retum or reporl all taxable catc. liability of flducian'. M'henever the assessor imposes a penalh' prescribed bc tio taxpavrr slwll fuil to makc a rrtuni wilhin the tiinr section 5511.27 or 5725.17 of the Revised Code, the prescribed bv hot'. or as evtrnded pnrsuaut to sectiuu asxrssurshall send uotice of such penalh assessineut to the 5711.114 of thc Re+iecdl,oile, no+ fail tn list iu a rctnrn or tu^pucer bc mall. If the notice also reflects the assessntent disclose un .m accontptuciqt; balanre sheet or in other of wm properhnnt listed in nr untitted lrom a retunt, or informatiort filvd snth the rehirn amitciu oltaxublr thc assessment of an< iteni or class oi tanble properh properhthe ta^pacer is reqnired tn list in the retunt mider listod in a returu httjte taxpWer in exccss of the evalue or sec'tionti 57 11.01 to 5711.36 ollhv Revised Code. anionnt thereol as so listed. or svithout .tllosving a claini Ifatq t tapiver f.olv to make a tlmeh rctnrn. or ILiLs to dnk made forn de•duction from die net book vtdue of list or disclo.c anv item the taxp twr is reynired to retnrn. accounts reccis uble, or depreciated book value of personal the asscssnt shall add to thv asscssment uf tach class or propertv nsed in bnsiness, so listetl, and the tetxpieer iteni of t.tsahlc propertc the taepat'er failed to return, list. objects to one or ntore of znch c•orrections in atldition to or disclose ;t penalhof up to fifth pcr ceut of the thc peualh. the tacpaver shall prcmeed as prescribed b\ as.sessmcnt but if snch htspwwr nrtkes. withm sixhdms sectron 5511.31 of the Rctised Code, but if no sucji after thc expiratiun ofthe tinu prescribed bs such sec- corree•tion is reflected in the nntice, or if the taxpas'er does tions, a rcturu or :m amended nr snpplemontarr, retm-u nnt object to anc such correction tnade, the taxpay'er shell and lists thcreiu or elisclnses on all uccvmpaming halauco proceed aa prescribetl hereiu. sheet or in other inforniatiml filed with the rcturn all items N'ithin sishdaYs after the nmilin}; of the notice of a of t.uable properhthe taxpaver is retpiiretl bv snclt peualhtcssessmeut presc•ribed bc this section, the t:upaver sections to list. and in all cases in sahich the t tep tcers onlc ma\file with the tax crtmmissioner, in person or b% defatdt is the lailtur tn pac the antomrts apecified in c•ertilred mail, a petition for abatement of such penaltv sectlon 5r19-1)$ of the Revistd Code within the thnc a,ssessnlent. If the pe6tion is filcxl be certified umil_ the therein sptcified. sncli penaltv rhall be fire per cent of lhe date of the United States postmark placed on the sender's assessmc'nt, and. if the assessmant crrtificate Ims been receipt bv tLe postal eniployee to whom the petition is isstted, au ameuaknl .nse.ssntent cc rtiiicato sh;dl be issoecl presented shall be treated as the (late of filin};. The and substitute•d therefor petition shtdl hnve attached thereto and incorporated Tlie penaltv provided in this section mac be abated in therein bNreference a true copv of the notice of assess- whole or in part bv the assessorwhen it is shown that such attach a copp of failure is duc to reasonablc c.ntse. The penalhasse+sment tnent complained of, but the failore to shall be entered on the proper tax list and duplictde, und snch notice and incorporate it b), reference does not taxes sball be Iov(od thercnu the satne as on the assessineut invalidate the petition. The petition shall also indicate that . the twrpayer s only objection is to the assessed penalty and itsel f . A lidnci trv .rgalnst w110111 a penalhassessntent is made die reason for such objection. shall be personalh h tble ibr the ainount oi taxes le\ied in Upon the filing of a petition for abatement of penalt}, respect to sucb putalh' tasessment aud mv additionul the commissioner shall notifv the treasurer of state or the charge. and in case of frand or intent tn evade taxes, such auditor arid treasurer of eacb county having any part of the fidaciarv shall have no right of reimbmsemcut ut;ainst thc• penalh' assessment entered on the tax list or duplicate. propertv held bv the fidnciarv as suc•h fiduc•imr,onor against The c•ommissioner sltall review the petition without the the person for whuse beneCit the sanre is held. nee.d for hearing. If it appears that the failure of tlte taxpayer to tintely return or list as required under this chapter, or to file a complying report and pay tux under Chapter 5725. of the Revised Code, whichever the case may be, was due to reasonable cause and not willful neglect, the cominissioner may abate in wlrole or in part the penalty assessment. The colninissioner shall transmit a certificate of the cotnmissioners dete.rmination to the taepaver, arnd if no appeal is taken therefrom as provided by' lasv, or upon the final determiuation of an appeal which may be taken, the commissioner shall nofifc the trea+vrer of state or the proper counte auditor of suclt final deter- mination. If the final determinatiort orders abatement of the penalh' assessment, the notification mae be in the iorm ol'an amended assessment certificate. Upon receipt of the notification, the treasurer of state or counh, anclitor shall make anv corrections to the treasurer's orauditor's records and tax lists and duplicates required in accordance there- with and proceed as prescribed bc seotiort 5711.32 or 5725.22 of the Revised Code. The decision of the commissioner slrall be final witli respect to tlte perceutage of penalh, if' any. the corninis- sioner finds appropriate, but neither the commissioner's decision nor a final jndgmernt of the board of tax appeals or amconrt to which suclt fina detenntnation mae be appealed sball finaliz.e the asses.sment of sueh property. A- 16 § 5711.29 Unreasonable accumulation of profits by corporation; accumulation of trust income; assessment by commissioner. If any corporation uses the rights and powers granted by its charter to prevent the assessmeut of the sbares of its resident shareholders on the basis of income yield,as provided in sections 5711.0] to 5711.36 of the Revised Code, b_spermittin-g its gains and profits to ac•c•uinulate instead of being distributed, or by paVing exorbitant salaries to its officers and einployees. the tau commis- sioner, upon finding such to be the fact, shall assess the amount representing the aggregate assessments of the shares of such resident shareholders in the names of such or tnist for such year, in which event any subsequent reside.nt shareliolders and certifv such assessments, to- distribution made bv sueh corporafion or tmst out of the gether with the penalty provided in such sections, to thc• eamings or profits of such year shall, if distributed to any proper counh• auditor wlto sltall place the smne on the shareholder or beneficiary who has so included in the classified taxlist and duplicate in the names of such income vield of his shares the distributive share thereof, shareholders, as investments assessed un the basis of be deducted from the income yield of such s6ares for the income yield for the year for which such a-ssessments are year in which the same is made. made; and taxes shail be collected thereon the same as on other like assessments. The coinmissioner shall give notice of such assessnient to the corporation by personal service or certified mail, and such assessment slrall be subject to a petition for reassessment and an appeal as provided in § 5711.30 Penalty assessment for declaring sections 5711.31 and 5717.02 of the Revised Code. a nominal dividend or to evade taxes. If any such corporation is a holding or investment company, or if the gains or profits are permitted tn If any corporation, incorporated tinder the laws of this acenmufate beyond the reasonable needs of the business, state or authorized to do business in this state, declares a such fact shall be prima-facic evidence of a purpose to nominal dividend or distiibrttion for the purpose of en- prevent the assessment of the shares of its resident abling its shareholders residing in this state to return its stockholders ou such basis. shares as productive investments, the tax cominissioner, If anv trust, under the terms of which the tnrstee is upon finding such to be the fact, shall assess against such required or authorized to withhold and accumulate all or corporation a penalty equal to a tax of two mills on the any part of the incotne, is created or used for the purpose dollar of the tme value in tnoney of its share of stock of preventing the assessinent of the equitable interests of owned by shareholders residing in this state. 9uch penalty the resident beneficiaries on the basis of income yield, as shall be collected and disttibuted in the saine inanner ac provided in sectious 5711.01 to 5711:36 of the Revised taxes levied bv section 5707.03 of the Revised Code. Code, the commissioner, upon finding such to be the fact, shall assess the amount representing the aggregate assess- ment of such equitable shares in the tnanner provided in this section. If the creator of such tnist reserved a power of revocation, or if the tnistee has discretion to pay and distribute the income of the tmst property to or for the benefit of such resident benefieiarv, such fact shall tv prinia-facie evidence of a purpose to prevent the assess- ment of the equitable shares of the resident benef'iciaries upon such basis. The assessment iinposed by this action shall not be made against any resident shareholder of such corporation or benefieimv of snch trust who in filing his return lists as t6e incorne }ield of Iiis shares or beneficial interest the entire distributive share or beneficial interest, whether distributed or not, of the net income of such corporation

^^^ 1 § 5711.31 Notice of assessment; petition for reassessment; final determination. Whenever the assessor assesses any properpnot listed The decision of the commissioner upon suc•h petition in or omitted from a retum. or whenever the assessor for reassessment shall be final Nvith respect to the assess- tnent of all taxable property listed in the retirnt of the assesses anv item or class of taxable property listed in a rettrrn by the taxpayer in excess of the value or amount taxpayer and sh.dl c(institute to that extent the final thereof as so listed, or without allowing a claim dnly made detertnination of the commissioner with respect to such for deduction from the net book value of accounts receiv- assessment. Neither this sectiou nor a final judgtnent of abie; or depreciated book value of personal property used the board of tax appeals or anv court to which such final in business, so listed, the aesessor shall give notice of such determination mav be appealed shall preclude the subse- assesstnetrt to the taxpayer bv mail. The tnailing of the quent assessment in the manner authorized bc law of anv notice of assessment shallbe prima-facie evidence of the taxable propertNwhich such taxpayer failed to list in suclt receipt of the same bv the person to whom such notice is return, or which the assessor has not theretofore assessed. As used in this sec8on, "taxpayer" includes financial addressed. With the notice, the assessor shall provide instmctions on how to petition for reassessment and institutions, dealers in intangibles, and domestic insurance cotnpanies as define,d in section 5725.01 of the Revised request a hearing on the petitiou. Within sixty days after the mailing of the nofice. of Code. assessment prescribed in this section, the party assessed may file with the tax commissioner, in person or bv certified mail, a written petition for reassessment, signed § 5711 .32 Countv auditor to compute tazes by the party assessed, or by that party's authorized agent upon wrrection of records and tax ►ists; collection having knowledge of the facts. If the petition is frle(i b) and payment of deficiency. certified rnail, the date of the United States postmark (A)(1) Upon receipt of a preliminary, atnended, cor- placed on the sender's receipt by the postal employee to rected, or frnal assessment certificate requiring a correc- whom the petition is presented shall be treated as the date tion to his records an(I tax lists and duplicates, the cotrnty of filing. The petition shall have attached thereto and auditor shall compute the aniount of taxes represented b)' incorporated therein bv referenee a tme copy of the notice each deficiency or excess itern therein contained at the of assessrnent complained of, but the faiiure to attach a rate of taxation in effect irt the year for which such copy of such notice and incorporate it by reference does assessment is ntude. He shall enter all deficiency items not invalidate the petition. The petition also shall indicate cotnprised in such assessment certificate on the proper tax the objections of the party assessed, but a(lditional objec- lists in his office, together with the atnount of taxes so tions may be raised in writing if received prior to the date computed thereon, and shall give a certificate of all sueh shown on the f}nal deterrnination bv the commissioner. atnounts to the esmntv treasurer, who shall proceed as Upon receipt of a properly filed petltion, the comrnis- prescribed by division (B) of this section. If the assessnrent sioner shall notif), the treasurer of state or the auditor an(i certificate compri ses any excess items, the auditor shall treasurer of each count) having anv part of the assessment acertain whethe,r the taxes, penalties, and interest for the eutered on the tax list or duplicate. year represented thereby have been paid; if so, he shall lf the petitioner requests a hearing on the petition, the proceed as prescribed by division (A)(2) of this section; if c•ommissioner shall assign a time and place for the headng not, he shall eorrect the proper tax lists and duplicates, and notify the petitioner of such time and place, but the corntnlssioner may continue the hearing from time to time adjusting any penalties thereon accerdingly. If the assess- ment certificate comprises both deficiency and excess as necessary. The comrnissioner mav rnake corrections to the assess- items, he may, after computing the amount of taxes ment, ac the cominissioner finds proper. The cotnmis- represented bv the deficiency and excess items, treat the sioner shall serve a copy of the conunissioner's final difference betwe,en such antounts as a deficiency or excess detertnination ott the petitioner in the tnanner provided in for purposes of this seetion; in such case, the countN section 5703.37 of the. Re-vised Code. The commissioner's auditor shall ntake any adjustment ac between the undi- decision in the matter is final, subject to appeal under vided tas funds as is necessarv. section 5717.02 of the Revised Code. The commicsioner (2) If he finds that the taxes, penalties, and interest for also shall transmit a copy of the cmntnissioner's final the year represented by an excess have been paid, the determination to the treasurer of state or applicable countv auditor sliall proceed as prescribed bv sections counhauditor. In the absence of anv further appeal, or 319.30 and 319:37 of the Revised Code. when a decision of the board of tax appeals or of anv court (R)(1) Upon receipt of a certificate frorn the cormrv to wlhich the decision has been appealed becomes final. auditor pursuant to division (A) of this section of the the eommissioner shall notlfi• the treasurer of state or tlie amount of a deficienec. the countv trea.surer shall proeeed proper eountv auditor ofsuch Rnal determinatiou. If the in the tnanner prescribed bv division (A) of section final determination orders correetion of the assessment, 5711.33 of the Revised Code totieollect the full amount the notification mmbe in the form of a corrected therenf. includinR interest thereon, as other like taxes, assessment cettificate. Upon receipt of the notification. penailties, ancl interest, subject to the following exceptions: the treasurer of state or the proper cotmt^auditor shall (a) If the deficiencv includes a penaltv assessment for make any corrections to the treasuret's or auditors recorcli and tax lists and duplicates required in accordance there- with and proceed as prescribed bssection 5711.32 or 5725.22 of the Revised Code. which a petition for abatement of peualtv has beett filed pursuant to section 5711.28 of the Revised Code, the (D) Notwithstanding division.s (A) to (C) of this section, penalty assessment shall not be collected unless the where the tax commissioner finds the sole reason for the taxpayer desires to pay it, but the balance of the deR- issuance of an assessment certificate with deficiency or ciency,including interest thereon, shall be collected; excess items is to correct ati error that occurred beeause (b) If the deficiency is based on an assessment fbr the taxpayer listed property in the wrong taxing district which a petition for reassessinent has been filed pursuant and the erroneous tax resulting from such error was timely to section 5711.31 of the Revised Code or an appeal has paid, the coniinissioner shall remit all interest otherwise been filed parsuant to section 5717.02 of the Revised reriuired to he cliarged on any tax arising from such Code, no part of the deficiency at issue in such petition or deficiency items if the full amottnt of the deficiency is paid appeal shall be collected unless the taxpaver desires to pav within sixty days after the date of the auditor's certification it. to the treasurer. If the fidl atnount of such deficiency is not (2) The taxpaver shall pav the full aniount of a defi- so paid, interest shall be assessed in tlie same manner and ciency required to be collected by the county treastner aniount as interest would have been char ged had this under division (B)(1) of this section, less anv amount division not been in effect. When refunding the aniount of specifically excepted therein, within the time prescribed any erroneous tax paid in connection with any excess itenis by division (A) of section 5711.33 of the Revisecl Code for incloded in such an assessment, no interest shall be paid the cvllection of like taxes, penalties, and interest. Failure on that amount, nohvithstanding provisions of this section, to pay such amount with interest thereon within the tinie or sectiori 319.36 or 5719.041. [5719.04.1] of the Revised prescribed shall subject such amount, exclusive of interest, Code to the contrary. The coinmissioner shall include on to the penalty prescribed by division (B) of section 5711.33 an assessment certificate to which this division a pplies of the Revised Code, and such amount, exclusive of such informatiou as is necessary to ensure the eflicient interest, sltall continue to accrue interest until paid as administradon of this division. prescribed by section 5719.041 [5719.04.11 of'the Revised Code. Any amount of the deficiency specifically excepted from colleetion under division (B)(1) of this section shall not be subject to the penalty prescribed by division (B) of' section 5711.33 of the Revised Code until sixty days after the date of certification bv the auditor to the treasurer pursuant to division (C) of this section of the final determination of the petition or appeal excepting such amount from collection under division (B)(1) of this seetion, bnt such amount, exclusive of interest, shall oontinue to accrue interest until paid as prescribed by section 5719.041 [5719.04.11 of the Revised Code. The taxpayer may make, and the treasurer shall accept, pay- ment of any part of' sueh excepted amount without prejudice to the claims oi'either the taxpayer, the state, or each counh. (C) Upon receipt of the notification by the tax commis- sioner pursuant to section 5711.26, 5711.28,or 5711.31 of the Revised Code of the final detertnination of a petition or an appeal, the county auditor shall make any correction required to his records and tax lists and duplicates and eompute the adjustment, if any, required to each defi- ciency or excess previously certified to the treasurer. He shall forthwith certify to the county treasurer that there has been a final determinafion and the resulGno correc- tlons, if any, to the amount of each deficiency or excess, and the treasurer shall thereupon proceed to collect anv unpaid balance. The taxpayer shall pay such unpaid balanee, inclttding interest thereon, within sixty days after the date of such certification, and if not so paid within such sixty-day period, the unpaid balance sha11 he snbject to the penalty prescribed bv division (B) ofseetion 5711.33 of the Revised Code and shall continue to acerue interest until paid as prescribed by section 5719.041 [5719.04.1] of the Revised Code.

^4 - 91 § 5711.33 T. bill as to deficiency assess- ment; additional penalty; delinquent taxes; renrission (C) When the taxes charged, as mentioned in division of penalty. (A) of this sectinn, remain unpaid after the final date for (A)(1) WIten a eountv treasurer receives a certificate payment prescribed bv such division, sach chiuges shall be from a county auditor pursuant to division (A) of section deemed to be delinqucnt taxes. The cnuntv auclitor sltall 5711.32 of the Revised Code charging the treasurer with cause stteh charges, including the penalty that has accntcd pursuant to this sectiort, to be added to the delinqaent tax the collection of an amount of taxes due as the result of a duplieate in accordance with sec•tion 5719.04 of the deficiency assessment, the treasnrer shall imnrediateh• Rex4sed Code. prepare and mail a tax bill to the taxpaver omug.sttch tax. (D) The countv auditor, upon consultation vcdth the The tax bill shall contain the name of the taxpaver; the county treasurer, shall remit a penalh. itnposed under taxable value, tax rate, and taxes charged for each year being assessed; the total atnount of taxes due; the final divis-ion (B) of this section or division (C) of se,ction date payment mav be tnade without additional penaltv; 5719.03 of the Revised Code for the late payment of taxe.s when: and any other infortnation the treasurer considers perti- nent or necessarc. Taxes due and payable as a result of a (1) 1'he taxpayer could not make tiinely payment of the deficiency assessment, less any amount specifieally ex- tax because of the negligence or error of the countv cepted fiom collectioii under division (B) of section auditor or countv treasurer in the performance of u 5711.32 of the Revised Cotle, shall be paid witlt interest stattrtory duty relating to the levy or c•ollection of such tax. thereon as prescribed by.sectlon 5719.041 [5719.04.1] of (2) In cases otlter than those described in division the Revised Code on or before the sixtieth day following (D)(1) of this section, the taxpayer failed to receive a tax the date of issuance of the certificate by the county bill or a correct tax bill, and the taxpayer made a good faith auditor. The balance of taes found due and payable after effort to obtain such bill within thirtv days after the last a final determination by the tax comniissioner or a fitial day for payment of the tax. ^ judgment of the board of tax appeals ottmy court to which (3) The tax was not timeJy paid because of the death or such final jndgrnent may be appealed shall be paid sndth serious injury of the taxpayer, or the taxpayer's confine- interest thereon as prescribed bv section 5719.041 ment in a hospital within sLxty days preceding the last day [5719.04.1] of the Revised Code on or before the sixtieth for payment of the tax if, in any case, the tax was day following the date of eettificatlon by the auditor to the subsequently paid within sixtv days after the last day for treasurer pursuant to division (C) of section 5711.32 of the payment of suclt tax. Revised Code of such final determination or judgment. (4) The taxpayer demonstrates that the full paymeut Such futal dates for payment shall be determined and was properly deposited in the tnail in sufficient tiine for exhibited on the tax bill by the treasurer. the envelope to be postmarked by the United States postal (2) If', on or before the sixtieth day following the date of service on or before the last day for payment of sueh tax. a c•ertification of a deficiency assessment under division A private nieter postmark oo au envelope is not a valid (A) of section 5711.32 of the Revised Code or of a postmark for purposes of establishing the date of payment of sttch tax. certification of a final deterrninatiou or judgrnent under division (C) of section 5711.32 of the Re«sed Code, the (5) ln cases other tltan those described in clivisions taxpayer pays the full ainount of tuxes aud interest due at (D)(1) to (4) of this seetion, the taxpayer's failure to make the thne of the receipt of certification toth respect to that tltnely payment of the tax is due to reasonable canse and assessment, detennination, or judgment, no interest shall not willfiil neglect. accrue or be charged with respect to that assessment, (E) The taxpayer, upon application within sixty days determination, or judgment for the period that begins on after tfre mailing of the county auditor's decision, may the first day of the month in which the certification is request the tax commissioner to review the denial of the made and that ends on the lastdav of the month preceding retnission of a penalty by the county auditor. The applica- the month in whfch sneh sixtleth day occurs. tion mtry be filed in person or bvi certified mail. If the (B) When the taxes charged, as tnenflonec] in division application is 81ed by certifiecf rnail, the date of the United (A) of this section, are not paid within the time prescribed States postmark placed on the sender's receipt bv the postal servic•e shall be treated as the date of filing. The by suclt division, a penaitv of ten per cent of the amouut due and unpaid and interest for the period described in commissioner sliall cousider the application, determine division (A)(2) of this section shall acrrue at the tiine the whetlter the penaltv should be remitted, and certify the treasurer closes the treasurer's office for business on the determination to tlle taxpave' and to the c•omttv treasurer last day so prescribed, but if the taxes are paid within ten and county auditor, who shall correct the tax list and days subsequent to the last dav prescribed, the treasurer duphcate accordinglv. The commissioner mav issue orders shall tvaive the cnllection of and the auditor shall remit and instructions for tlte uniform implementation of tltis one-half of the penalh. 1'he treasurer shall uot thereafter section bv all counb° auditors and coantv treasurers. and accept less thau the fiill ainonnt of taxes and penaltc such orders and instnictions shall be followed by suc•h oflic•ers, except as othencise authorized bv law. Such peualtv shall be distributed in the sanie tnanner and at the same tiine as the tax upon which it has accrued Tlie whole amount collected shall be included in the next succeeding settle- ment of appropriate taxes_

A- oof3 § 5711.34 List of investors in corporations to be filed. i.ist of in- Annuallc, on or before the fifteentb dav of ]anuarv, the [§ 5711.34.11 § 5711.341 following lists, verifled by the president, viee-president, vestors in money market investment to be filed. secretary, or the treasurer (of the corporation required to Each tntst or other unincorporated issuer of a money file such list, shall be filed with the department of taxation, market investment sold to residents of this state in the in such form as the tax commissioner prescribes: preceditig calendar year shall file a list of all its investors in (A) Each corporation incorporated under the laws of the same manner as required by section 5711.34 of the this state for profit shall ftle with the department a list of Revised Code. hether its shareholders- registered bondholders. No issuer of a mone\market investment, w debentureholdm's, noteholders, or otlter holders of invest- incorporated or unincorporated, that fails to eomply with ments in the corporation as defitted in section 5701.06 of the requirements of this section or section 5711.34 of the the Revised Code[,] residitfg in this state, showing their Revised Code may be authorized to register, or continue places of residence and the number of shares, registered the registration of, any security for sale in this state, from bonds, debentures, notes, or other unit-s of investments the time that the tax commissioner certifies to the division held by each suclt holder. (B) Eaeh corporation incorporated under the laws of of secudties that such issuer is not in eompliance with either of sueh sections. this state for profit shall file with the department a list of investtnent" the person.s residing in this state who are sharebolclers, As used in this section, "money rnarket registered bondholders, debentttreholders, noteholders, means any investtnent sold under that nanie or a variant or other holders of investments as defined in section thereof, and any pool of interest-bearing securities in 5701.06 of the Revised Code of its affiliated foreign wltich rights of participation in the distribution of such corporations, showing the resiclence and number of interest on a pro rata basis are sold by whatever nante is t,tsed with a promise that they will be repurchased or their shares, registered bonds, debentures, notes, or other mtits of investments held b9 each such holder in each such principal value otherwise redeemed, with or without t}re deduction of a fee, by the seller or a contractually specified affiliatecl corporation. (C) l:ach foreign corporation fbr profit doing business person, witl6out the requirement of a waiting period other in this state, owning or using a part or all of its capital or than a reasonable time for the transfer of such funds. property in this state, or authorized by the secretary of HISTORY: 134 v H 694. Eff 11-15-81. state to transact bttsiness io this state shall file witb the department a list of its shareholders, registered bondltold- Ohio AdministraNve Code Intanglble personal property tax: repe;d: effect of unrepealed ers, debentureholders, noteholders, or other holders of sections. OAC 5703-3-23. inveshnents in the corporation as defined in section 5701.06 of the Revised Code, residing in this state. showing their places of residence and the number of § 5711.35 aesident deputy county trea- shares, registered bonds, debentures, notes or other units surer. of investutents held by each such holder. (D) Each foreign corporation for profit doing business If necessan, , the board of county eommissioners may in this state- owning or using a part or all of its capital or provide for the appointment of a resident deputy county propertv in this state, or authorized by the secretary of treasurer and fix his compensation. state to transact business in this state shall fite with the H7STOR5': GC § 5386-3; 109 v 63, § 3; Bureau nf Code Revisiun, department a list of the persons residing in this state who 10.1-53; 125 v 903(1044). EH 10-1-53. are shareholders, registered bondholders, debentureholders. noteholders or other holders of invest- Filing and preservation of re- ments as de6ned in section 5701.06 of the Revised Code § 5711.36 of its affiliated foreign corporations, showing the residence ports. and number of shares, registered bonds, debentures- notes The tax commissioner or the county auditor shall place or other units of investtnents held by each such holder in on file in alphabetical or(ler all returns of taxable propert) each such affiliated corporation. and all assesstnent certificates, and shall carefullv preserve 1'itis section does not require a coqporation to file a list thcm unfil five years after the taxes represented therebe of the holders of the kinds of intangible property nicu- have been paid, or litigation concerning the satne has been tioned herein wltere the C)hio intangible tax upon such settled, wlien he shall destroNthem. intangible propertv in said corporation is assessed at its source and paid bv such corporat3on, or a list of holders of unmatured annulties issued by suc'h corporation.

A'lo ( § 5717.02 Appeals from final determina- Hons; procedure; hearing. Except as otherwise provided bv law, appeals froin final determinations bv the tax conimissioner of any prelinii- narv, ainended, or final tax assessments, reassessments, Upon the filing of a notice ol appeal, the tac cominis- valuations, determinations, findings, coinputatlons, or or- sioner or the director, as appropriate, slrall certify to the ders made b,v the commissioner may be taken to the board board a transctipt of the reeord of the proceedings before the eoininissiouer or director, togetlrer with all evidence of tax appeals by the taxpayer, by the person to whom considered by the commissioner or director in eonnection notice of the tax assessment, reassessment, valuation, therewith. Such appeals or applications ma' N• be heard by determination, finding, computation, or order bp the the board at its office in Columbus or in the coumty where commissioner is required by law to be given, by the the appellant resides, or it may cause its examiners to director of budget and 'management if the revenues conduct such hearings and to report to it their findings for affected bN- such decision would accnie primarily to the affirmation or rejection. The board may order the appeal state treasury', or by the county auditors of the counties to to be heard upon the record and the evidence certified to the undivided general tax funds of which the revenues it by the commissioner or director, but upon the applica- affected by such decision would primarily accnte. Appeals tion of any interested party the board shall order the froin the redetermination bv the director of development hearing of additional evidence, and it may make such under division (B) of section 5709.64 or division (A) of investigation concerning the appeal as it considers proper. 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 reqaired by law to be given. Appeals froni a decision of the tax commissioner wncern- ing an application for a property tax exemption may be taken to the board of tax appeals by a school district that filed a statement eonceniing such application under divi- sion (C) of section 5715.27 of the Revised Code. Appeals froni a redeterinination by the director of job and family services under section 5733.42 of tlte Revised Code may Irt; taken by the person to which the notice of the redetermination is reqnired by law to be giveu under that section. Such appeals slrall he taken by the filing of a notice of appeal witlr the board, and with the tax commissioner if the tax commissioner's action is the subject of the appeal, with the director of developtnent 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, reassess- nient, valuation, determination, finding, computation, or order b}' the commissioner or redeternrination bv the director lias been given a.c provided in section 5703.37, 5709.64, 5709.66, or 5733.42 of the Revised Code. The notice of such appeal may be filed in person or by certified mail, express mail, or aathorized delivery service. If the notice of such appeal is filed bvi certified inail, express mail, or autborized rlelivetyservice as provided in section 5703.056 [5703.05.6] 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. The notice of appeal shall have attached thereto and incorporated therein bv reference a tnie copy of the notice sent bv the commissioner or director to the ttixpayer, enterprise, or other person of the final determina6on or redeterinina8on complained of,dmd shall also speeifv the errors therein complained of, but faihjre to attacli a c:opy of such notice and incorporate it bv reference in the notice of appeal does riot invalidate the appeal.

A-, toz Appeals from decisions of the board upon nll other appeals or applications filed with and detemtined 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 § rj717.O4 Appeal from decision of hoardof from was by law required to be certified, or by any other tax appeals to supreme court; parties who may ap- person to whom the board certified the decision appealed peal; certification. from, as authorized by section 5717.03 of the Revised The proceeding to obtain a reversal, vacation, or niod- Code. Such appeals shall be taken within thirty days after the itication of a decision of the board of tax appeals shall be by appeal to the suprente court or the court of appeals for date of the entry of the decision of the board on the the county in which the property taxed is situate or in journal of its proceedings, as provided by such section, by the filing by appellant of a notice of appeal with the court which the taxpayer resides. if the taxpayer is a corporation, ely then the proceeding to obtain such reversal, vacation, or to which the appeal is taken and the board.^a timely modifieation shall be by appeal to the supreme court or to twtice of appeal is filed by a party, any other p tna file the court of appeals for the county in which the property a notice of appeal within ten days of the date on which the taxed is situate, or the county of residence of the agent for first notice of appeal was filed or within the time otherwise service of process, tax notices, or demands, or the eounty prescribed in this section, whichever is later. A notice of in which the corporation has its principal place of business. appeal shall set forth the decision of the board appealed In all other instances, the proceeding to obtain snch from and the errors therein complained of. Proof of the reversal, vacation, or tnoclifrcation shall be by appeal to the filing of such notice with the board shall be filed with the court of appeals for Fmnklin county. court to which the appeal is being taken. The court in Appeals from decisions of the board determining ap- which notice of appeal is first filed shall have exclusive peals from clecisions of county boards of revision may be jurisdiction of the appeal. instituted by any of the persons who were parties to the In all such appeals the tax commissioner or all persons appeal before the board of tax appeals, by the person In to whom the decision of the board appealed from is whose name the property involved in the appeal is listed or required by such section to be certified, other than the sought to be listed, if such person was not a party to the appellant, shall be made appellees. Unless waived, notice appeal before the board of tax appeals, or by the county of the uppeal shall be served upon all appellees by certified auditor of the county in which the property involved in the mail. The prosecuting nttorney shall represent the county appeal is located. auditor in any such appeal in which the auditor is a party. Appeals from decisions of the board of tax appeals The board, upon written demand filed by an appellant, determining appeals from final determinations by the tax shall within thirty days after the filing of such demand file commissioner of any preliminIIlry with the court to which the appeal is being taken a assessments, reassessments, a r,ation.st^^ leterm nationas certified transcript of the record of the proceedings of the findings, computations, or orders made by the commis- board pertaining to the decision complained of and the sioner may be instituted by any of the persons who were evidence considered b,v the board in making such deeision. parties to the appeal or application before the board, by Jf upon hearing and consideration of such record and the person in whose name the property is listed or sought evidence the court decides that the decision of the board to be listed, if the decision appealed frotn detemiines the appealed from is reasonable and lawfirl it shall afflrm the valuation or liability of property for taxation and if any same, but if the court decides that such decision of the such person was not a party to the appeal or applieation board is unreasonable or unlawful, the court shall reverse before the board, by the tavpayer or any other person to and vacate the decision or modify it and enter final whom the decision of the board appealed from was by law judgrnent in accordance with such modification. required to be certified, by the director of budget and The clerk of the cochrt hhahl`^'ec irt ths the management, if the revenue affected by the decision of the court to the board, ^' board appealed from would accrue primarily to the state such publie of'ficials or take srtc•h other action in connec- treasury, by the county auditor of the county to the tion therewith as is required to give effect to the decision. undivided general tax funds of which the revenues af- The "taxpayer' includes any person required to retum any fected by the decision of the board appealed from would property for taxation. primarily accme, or by the tax comrnissioner. Any party to the appeal shall have the right to appeal from the judgtnent of the court of appeals on questions of law, as in other c•ues.

A - 003