In the present case the taxpayer's position was, in effect, that the figures on the cash register tapes were merely proof ofreceipts and did not represent sales — or at least did not accurately reflect the sales. Testimony to support this was given. No evidence whatsoever was offered by the department on how these figures could be modified. Cf. Bloch v. Glander, TaxCommr. (1949), 151 Ohio St. 381, paragraph four of the syllabus; Youngstown Sheet Tube Co. v. Bowers, Tax Commr. (1957), 166 Ohio St. 122, paragraph five of the syllabus. We therefore held that the reassessment was unsupportable on the evidence. Cf. The Hippodrome Building Co. v. Cuyahoga CountyBoard of Revision (1962), 117 Ohio App. 102.
As I understand appellee's new contention, it starts on the premise that the board has no authority or "jurisdiction" toincrease an assessment as made by the Tax Commissioner. From this premise, appellee contends that in affirming the commissioner without opinion, the board might have rejected *Page 449 all the taxpayer's evidence, i. e., disbelieved it in its entirety. Although the board would thereby be holding the reassessment to be wrong on the facts, yet the error would be against the state, and if the board could not increase the assessment, it would affirm the commissioner. From this it follows that since the board gave no findings or opinion as to the basis of its action, it does not appear of record that it acted unreasonably and, ergo, we must presume it acted reasonably. As an illustration, if the board found sales taxable at $100, appellee contends that the board could not increase an assessment of $50 by the commissioner. Rather, the board would have to simply affirm it at $50 regardless of the fact that the proper assessment under the law and evidence would be $100.
As a rule of law, such a "one-way street" would vest great authority in the Tax Commissioner. It would also deprive the state of Ohio of protection against human errors in handling the massive amount of claims and disputes before the department. Of course, there is no such limitation in the federal tax system.
In support of its position, appellee discusses at length the procedure before the commissioner's staff, and refers to the "sales, excise and highway use tax hearing board." Such a "board" is merely a matter of office organization somewhat similar to the Attorney General's "office court." While no doubt an excellent system, such a body has no legal authority or standing as such. It is an intra-office advisory group, but the authority and duties are those of the Tax Commissioner.
Appellee's view of the commissioner's authority is stated in its brief at page two.
"* * * It should be noted that under Section 5739.10, Revised Code, if the Tax Commissioner elects to refuse to accept the taxpayer's return, he is authorized to determine the ratio of taxable sales to all retail sales on the basis of test checks and other information relative to sales made by such vendor. We submit that this also permits, in the exercise of good conscience, the consideration of such other information as may be within his knowledge for the purpose of granting relief. We submit that the action of the Tax Commissioner is entitled to a presumption of validity under such circumstances. * * *" *Page 450
Section 5717.02, Revised Code, provides that the commissioner shall certify to the board "all evidence considered by him." The board, in passing upon a reassessment, must act upon the transcript certified by the Tax Commissioner and such other evidence as may be submitted to the board. Thus, whether or not the Tax Commissioner can use some private source of knowledge in determining an assessment, that would be totally irrelevant to the validity of the board's determination.
With respect to a presumption of validity, the Supreme Court has specifically held that the commissioner's action or order isnot entitled to any presumption. In Bloch v. Glander, TaxCommr. (1949), 151 Ohio St. 381, paragraphs two and three of the syllabus state:
"2. The rule generally applied by the courts, that the action of a public officer or board within the limits of the jurisdiction conferred by law is presumed to be valid, in good faith and in the exercise of sound judgment, is not applicable in an appeal from the Tax Commissioner to the Board of Tax Appeals pursuant to Sections 5611 and 5611-1, General Code, which require such board to grant the appellant a full hearing on his complaint.
"3. Where the record on appeal to the Board of Tax Appeals from an order of the Tax Commissioner contains substantial evidence supporting the claim of the appellant, the order of the commissioner, to be sustained, must be supported by something more than a mere presumption in its behalf."
See, also, Youngstown Sheet Tube Co. v. Bowers, Tax Commr. (1957), 166 Ohio St. 122.
We are dealing with an administrative body, and the board's function and authority are those provided by statute. Appellee thinks of the proceedings before the Tax Department as if they were a hearing. The commissioner may use his broad powers to gather evidence, and he may accept evidence from the taxpayer. Any such evidence which is properly included in the transcript will come before the board. However, the taxpayer has no legal right under the statutes to a hearing at the commissioner level, nor is such a right created by the fact that for intra-departmental reasons the commissioner has developed a procedure comparable to a hearing. The constitutional *Page 451 right to a hearing arises and is provided for the taxpayer in the proceedings before the board, and only before the board. In view of the fact that the taxpayer, the commissioner, or the board itself may cause additional evidence to be produced, it is apparent that the board must make de novo findings of fact. It is the board which fulfills the quasi-judicial function of providing a hearing and making fact determinations. The so-called "appeal" is not a judicial appeal or review. In the words of the court in Bloch, it is rather a "fulladministrative appeal," and this requires the board to grant a "full hearing."
I find no statutory basis or anything in this administrative structure which requires that the reassessment determination be considered a limitation of the board's authority. The reassessment is not analogous to the judicial doctrine that a plaintiff's prayer limits recovery, nor is the determination analogous to a judgment. It is the board's determination which is in the nature of a judgment and entitled to a presumption of reasonableness and regularity.
The statutory authority of the board is granted in sweeping terms. Section 5717.03, Revised Code, provides that the board may "affirm, reverse, vacate, or modify the tax assessments, valuations, determinations, findings, computations, or orders complained of * * *." (Emphasis added.) Of course, it seems clear that the board could not act upon an order of which the taxpayer did not complain or specify in his notice of "appeal." Thus, here the taxpayer has not complained of the determinations or findings relating to food sales. The scope of the proceedings before the board was thus limited to the taxable liquor sales. However, as to the order or finding which is brought to the board, I find nothing that limits the board's authority to consider all the evidence on that matter and substitute its determination for that of the commissioner, whether the board's determination thereby results in a lower or higher assessment.