dissenting.
I.
I am unable to agree with the judgment of this court that the hoard’s decision, finding that taxpayer was not required to list the bottles and shells “in the field” in its per*104sonal property tax return, is lawful and reasonable. R. C. 5711.03 sets forth the property which taxpayer is required to list in its tax return, in relevant part, as follows:
“Except as provided in sections 5711.01 to 5711.36 of the Revised Code, all taxable property shall be listed as to ownership or control, valuation, and taxing districts as of the beginning of the first day of January, annually * * (Emphasis added.)
Personal property used in business is to be listed if it is subject to either (1) the “ownership” of the taxpayer or (2) the “control” of the taxpayer. Neither term is defined by statute. Accordingly, the accepted legal meaning applies. R. C. 1.42. “Ownership” is defined as follows:
“Collection of rights to use and enjoy property, including the right to transmit it to others. * * * The complete dominion, title, or property right in a thing or claim. * * * The entirety of the power of use and disposal allowed by law.” Black’s Law Dictionary (Rev. 4 Ed.).
“Control” has been held to mean the exercise of a restraining or directing influence over; to dominate; regulate. Trust Co. of New Jersey v. Greenwood Cemetery (1943), 21 N. J. Misc. 169, 32 A. 2d 519; Board of Ins. Commrs. v. Duncan (Tex. Civ. App., 1943), 174 S. W. 2d 326; Merchant’s Motor Freight v. State Highway Com. (1948), 239 Iowa 888, 32 N. W. 2d 773. Clearly, the two terms are not synonymous. Control is an incident of legal ownership, but ownership is not always dispositive of control.
The board’s decision ignored the incluson of both “ownership” and “control” in R. C. 5711.03. A perusal of its entry discloses that the basis for its decision was a finding that the taxpayer did not own the bottles and shells “in the field.” The board found that the taxpayer sells the bottles and shells to its customers. Relying upon the facts that the taxpayer can not legally compel the return of the bottles and that the customers may dispose of them as they will, the board concluded that “ownership” was in the customer. The preceding facts, while indicia of “ownership,”1 are not deter*105minative of the issue of “control,” also present under R. C. 5711.03.
Even assuming that title to the bottles and shells “in the field” did transfer to taxpayer’s customers,2 this transaction is clearly not a “sale” in the ordinary sense where customers buy for their own purposes. The utilization of a deposit fee that is less than taxpayer’s actual cost for the bottles and shells signifies that the taxpayer is not in the business of selling the bottles and shells, but merely using them to market its product. Similarly, this “cost-deposit” disparity indicates that taxpayer’s customers are not in the market of buying bottles and shells, but simply their fluid content. Although the taxpayer, because of this amorphic transaction, may thus claim not to possess legal title, the repository of control has yet to be determined.
An empirical investigation yields the conclusion that control ostensibly resides with the taxpayer. The taxpayer’s control is directed towards insuring the return of the bottles and shells “in the field.” The bottles used by the taxpayer are clearly limited in function by their distinctive shape and the trademark. Their configuration restrains their usage, and their optimum utilization, a container for soft drinks, is restricted by the trademark. To complete its control over the bottles and shells, the taxpayer has instituted a deposit policy. This policy creates a monetary inducement for the return of the bottles and shells. The deposit thus serves as a directing influence upon the customers to return the bottles'and shells, which are rendered in all practicality worthless to the consumer by taxpayer’s restraining influence. “Control,” which was previously de*106fined as “the exercise of a restraining or directing influence over,” is within the taxpayer and not the consumer.
The hoard’s decision extirpated the word “control” from R. C. 5711.03 and transported personal property taxation into the “never-never land” of legal hypertechnicality. The General Assembly’s mandate of reality in the imposition of the personal property tax upon the basis of either “ownership” or “control” is eminently logical. In the present cause, the taxpayer alone may utilize these containers for their designed function, i. e., the marketing of soft drinks; the taxpayer’s operation is dependent upon the return of these items, and the taxpayer directs their return by a policy of monetary inducement. I am, therefore, of the opinion that the bottles and shells “in the field” are controlled by the taxpayer and, in accordance with R. C. 5711.-03, are to be listed in taxpayer’s return.
11.
As to the valuation issue, I also am in discord with the majority’s judgment. The applicability of Red Top Brewing Co. v. Bowers (1953), 163 Ohio St. 18, is questionable. The facts of Bed Top Brewing, supra, do not reveal that the taxpayer had imposed similar restraining influences, i. e., a unique shape and a trademark, upon its bottles which negated their economic value in the hands of the customers. It is axiomatic that Red Top Brewing, supra, can not now be viewed as controlling upon an issue not present.
Moreover, in light of the anomalous nature of this alleged sale of the bottles and shells to the customers, the deposit should not be viewed as the best method of determining value. Cf. Grabler Mfg. Co. v. Kosydar (1975), 43 Ohio St. 2d 75.
Accordingly, I respectfully dissent.
P. Bbowit, J., concurs in the foregoing dissenting opinion.ge board erroneously prohibited an attempt by the Tax Commissioner to rebut taxpayer’s evidence as to the ownership of the bottles *105“in the field,” which sought to inquire as to taxpayer’s treatment of the original purchase of the bottles for federal tax purposes and its treatment of the deposit for the state franchise tax. This issue, although raised by the Tax Commissioner, has not been addressed in the majority opinion.
Ownership of the bottles and shells "in the field” has not always been viewed by the bottler as residing with the customer. Coca-Cola Bottling Co. of Baltimore v. United States (Ct. of Claims, 1973), 487 F. 2d 528; Red Top Brewing Co. v. Bowers (1953), 163 Ohio St. 18.