/? I L received STATE OF OHIO BEFORE THE BOARD OF TAX APPEALS \ jAN 1 0 2020 1 STATE OF OHIO Cavaliers Holdings. LLC 1 Center Court Cle\-eland. Ohio 44115 Case No: (Commercial Activity Tax) Appellant. \'S. Amount in Contro\ ers\': approx. $110,315.00 .feffrey A. McClain Tax Commissioner of Ohio State Office Tower, 22nd Floor 30 East Broad Street Columbus. Ohio 43215. ■Appellee. NOTICE OF APPEAL Pursuant to Section 5717.02 of the Ohio Revised Code (■'Il.C.'') and section 5717-1-05 of the Ohio Administrati\’e Code (■■O..A.CT‘). Ca\’aliers Holdings. LLC ("Holdings" or ".Appellant") hereby gi\ es notice of appeal to the Ohio Board of Tax Appeals from a Final Determination of Ohio Commercial .Actix'itv Tax ("C.AT") issued b\' .!effre\' .A. McClain. Tax Commissioner of the State of Ohio (the "Tax Commissionef). with respect to tax periods October 1.2009 through September 30. 2011. A true copy of said Final Determination ("Determination"), in the form of a Journal entry dated October 31. 2019. is attached hereto as Exhibit .A and is incorporated herein by reference to the same deuree as if fulh' rewritten, Holdiims received the Tax Commissioner's Determination on No\'ember 12. 2019. See. Exhibit B. 1 STATEMENT OF FACTS A. General Overview Holdings was formed under the laws of Delaware on December 14. 2004. Holdings files its commercial acthdtv tax returns on a consolidated basis. Holdiims ser\es as the "reporting person" for the consolidated group. See. R.C. 5751.01(R). One member of Holdings' consolidated group is Ca\’aliers Operating Company. LLC ("Opco"). Opco was formed under the laws of Delaware on December 14. 2004. Holdings owns 100% of Opco. Opco owns and operates Quicken Loans Arena ("Arena”). The .Arena is located in Cleveland. Ohio. Opco also owns various professional sports teams (e.g.. the Cle\'eland Ca\ aliers of the National Basketball .Association, the Cleveland Monsters of the .American Hockey League, etc...). Such teams use the Arena for their "home” games. B. The .Arena The Arena opened in 1994. 'fhe .Arena's seating capacit}' \'aries depending on the e\'ent taking place. For basketball games the Arena can seat 19.463 people, which is the .Arena's maximum seating capacity. C. Events/Performanecs When Opco's sports teams are not using the .Arena Opco rents the Arena to unrelated parties ("Entertainment Producers'') so such Entertainment Producers can provide their "entertainment services” to the ticket buying public. In this regard, the .Arena Ruictions much like Nationwide .Arena here in Columbus. Entertainment Producers consist of solo artists (e.g.. Taylor Swift. Miley Cyrus, etc.), musical groups (e.g.. Metallica. Pearl .lam. etc.), athletic contests (NC.A.A college basketball games), ice shows (e.g.. Disney on Ice), and On April 9, 2019 Opco changed the name of the Arena to Rocket Mortgage Fieldhouse. 9 general entertainment (e.g., Cirque dii Soleil, professional wrestling, monster truck racing. etc.). D. Opco’s Services to Entertainment Producers Opco provides \'arious ancillary and necessary ser\ ices to Entertainment Producers in connection with renting the Arena to them. While each of Opco's contracts with the various Entertainment Producers list all the services specifically the services consist broadh' of the followintz. 1. Ticket sellins and ticket takinu as well as ushers, watchmen, stauehands. etc. to service the event. Included herein is collectiinz Cit\' of Clev eland admissions tax and remittiim same to the Citv. 2. Telephone service through the Arena's switchboard. 3. Staging.'labor and materials required to fit the premises for the Entertainment Producer's event including anv plumbing, carpentry or electrical work required. 4. Operating scoreboards and/or electronic boards. D. Utilities, excluding special effects, lighting and spotlights specific to the Entertainment Producer's event. 6. Restoration of the .Arena to its pre-event condition. E. Rental Formula Opco and Entertainment Producers execute one of two tvpes of rental contracts - - either a fixed fee rental contract or a formula based rental contract. In a fixed fee rental contract. Opco's rental fee is set in advance and is not impacted by the Entertainment Producer's ticket sale proceeds. In a formula based rental contract. OpcoT fee is calculated based on a percentage of the total ticket sale proceeds (less certain amounts set forth in the contract such as the Cleveland admissions tax). In some instances the formula based rental contract sets forth a j minimum fixed rental fee., Reeardless of whether the rental contract is fixed fee or formula based. Opco does not separately charge the Entertainment Producer for the services described abo\'e; nor does Opco itemize its invoice to show the fees for the services and the fees for the use of the Arena. In other words. Opco's serx ices are embedded in the cost of the rental fee that Opco charges Entertainment Producer. PROCEDURAL OVERVIEW A. Timeline On .lanuar}' 27. 2012 the Ohio Department of Taxation's audit dix ision ("Department”) mailed its C.AT audit commencement letter to Holdinus. On or before April 5. 2012. Holdings responded to the Department's initial request for information. During the xxeek of May 21. 2012 the Department conducted its field audit at Opco's office. On Februarx' 25. 2014. the Department mailed its preliminary audit findings to Holdings. On June 3. 2014. the Department mailed its final audit findings to Holdings. On July 7, 2014. the Department issued its assessment. On September 5. 2014. Holdings filed its petition for reassessment. On Januarx’ 20. 2016. Holdings had its hearing before the Department's tax appeals dixision. On April 4. 2016 and June 30. 2016 Holdings filed post hearing documents xxith the Department's tax appeals division. On October 31. 2019. the Commissioner issued his final determination. On Nox’ember 12. 2019. Holdings receix ed the Commissioner’s final determination. B. The .Assessment 4 The Assessment was $114,769.00. This amount consisted of $102,126.00 of tax and $12,643.00 of interest. The Department did not assess a penalty. The Department assessed CAT on numerous sources of gross receipts. The largest source was Opco's rental fees from formula based contracts. The Department implied that it was not assessing Opco's rental fees from fixed fee contracts because the Department acknowledged that Opco self-reported the rental fees from fixed fee contracts on its originally filed CAT returns. See. the Department's final audit findings letter at pages 2-3. In actuality the Department assessed Opco on the re\'enue Opco collected from the sales of tickets to the public - - that Opco made on behalf of the Entertainment Producer - - whether the Linderlvintz rental contract with the Entertainment Producer was fixed fee or formula based. I'he Department then gave Opco credit for the rental fees from fixed fee contracts that Opco self- reported. 95.5% of the Assessment is attributable to these transactions. In terms of dollars $42,377 of the Assessment was for ticket proceeds that Opco sold on behalf of the Entertainment Producer pursuant to fixed fee rental contracts and $55,136 of the Assessment was for ticket proceeds that Opco sold on behalf of the Entertainment Producer pursuant to formula based rental contracts. Stated differentl}-. the Department assessed Opco on the total gross receipts from all tickets that Opco sold on behalf of the Entertainment Producer twen though the formula based contracts did not entitle Opco to 100% of the ticket rex’enue. and the fixed fee rental contracts did not entitle Opco to an\- portion of the ticket revenue. The Department asserted Opco did not rent the Arena to the Entertainment Producer. Instead. Opco purchased an entertainment ser\’ice from the Entertainment Producer and then Opco resold that entertainment ser\-ice when Opco sold a ticket to the public. The Department's assertion is contrar>' to the plain language of the fixed fee and formula based rental contracts. 5 C. The Final Determination The Final Determination reduced the assessment of tax to $98,136.00. Interest was reduced correspondingly to $12,179.00. The Tax Commissioner reduced the assessment because the Department made a math error in calculating the assessment as to certain fixed fee rental contracts. OPERATIVE OVERVIEW OF THE OHIO COMMERCIAL ACTIVITY TAX Ohio imposes its CAT "...on each person with taxable gross receipts for the privilege of doing business [in Ohio]." Emphasis added. See. R.C. 5751.02(A). "...’Doing business' means engaging in any activity...that is conducted for. or results in. gain, profit, or income, at any time during a calendar }'ear." Id. "Persons on which [the CAT] is le\ ied include, but are not limited to. persons with substantial nexus [with Ohio]." Id. Taxable gross receipts means gross receipts sitused to Ohio pursuant to R.C. 5751.033. See. R.C. 5751.01(G). .4 person's first one million dollars of taxable gross receipts is subject to a minimum C.4T that can range from SI 50 to $2,600 depending on the amount of the person's total taxable gross receipts. See. R.C. 5751.03(B) and (C). Each dollar of taxable gross receipts in excess of one million dollars is multiplied against the CAT rate of two and six-tenths mills (i.e.. .0026). See. R.C. 5751.03(.4). Gross receipts" means the total amount realized b\' a person, without deduction for the cost of goods sold or other expenses incurred, that contributes to the production of aross income of the person. See. R.C. 5751.01(F). .4 taxpayer's method of accounting for gross receipts for a tax period shall be the same as the taxpayer's method of accounting for federal income tax purposes for the taxpa>'er's federal taxable year that includes the tax period.