Appellants assert that, since the Tax Commissioner recognized an overpayment of the April 30, 1975, assessment for the 1972 report year, the commissioner has a mandatory duty to refund the entire overpayment of the franchise tax for the 1972 report year, pursuant to R.C.
5733.11, regardless of the date of payment. In essence, appellants contend that the $94,852.16 overpayment made in 1972 should be refunded because of the $9,349.57 assessment in 1975, even though the application for review and correction as to that amount was filed February 6, 1976.
The Tax Commissioner is authorized to refund corporate franchise taxes in two instances. He may order a refund of taxes in a final determination issued on an application for review and correction of a franchise tax assessment in accordance with R.C. 5733.11 and an application for refund of corporate franchise taxes filed in accordance with R.C. 5733.12.
R.C. 5733.11 provides, in pertinent part, that:
“If upon final determination of the application * * * so filed * * * so that the amount due from such corporation * * * is less than the amount of the taxes paid, there shall be issued to the corporation * * * a refund in the amount of such overpayment as provided by section 5733.12 of the Revised Code * * * .”
Appellants incorrectly assert that the Tax Commissioner has a mandatory duty to issue a refund of the entire overpayment, pursuant to R.C. 5733.11. Rather, the mandates as to the amount and procedure of a refund are determined pursuant to R.C. 5733.12.
R.C. 5733.12, in pertinent part, provides:
“The treasurer of state shall refund to the corporation the amount of taxes paid illegally or erroneously, or paid on any illegal or erroneous assessment * * * provided that in any event such application for refund must be filed with the commissioner within three years from the date of the illegal or erroneous payment of the tax. * * * . ” (Emphasis added.)
Appellants contend that they are entitled to an entire refund for all overpayments for the 1972 report year, because they paid an assessment in 1975 and filed their application for refund within three years. Appellee contends that the three *271years run separately from each remittance. Accordingly, since the 1972 remittances were made more than three years prior to the application for a refund, the application for the refund of $94,852.16 is not timely, whereas the application for the refund of the 1975 assessment of $9,349.57 is timely.
We find merit in appellee’s contention.
R.C. 5733.12 does not address itself to when the entire tax liability is extinguished, but rather it concerns itself with the date of the “illegal or erroneous payment.” Further, R.C. 5733.12 specifically makes reference to refunds sought due to illegal or erroneous payments, as well as to refunds on illegal or erroneous assessments. The statute makes a clear distinction as to assessments. In 1972, appellants remitted money to the state in excess of their actual franchise tax liability. Those 1972 payments were illegal and erroneous when made. So, too, the payment of the 1975 assessment was a separate and distinct remittance and also illegal and erroneous when made.
The statute requires that an application for a refund be made within three years of the illegal or erroneous payment. Thus, the payments made in 1972 can not be refunded, pursuant to an application filed in 1976.
In Pelton v. Bemis (1886), 44 Ohio St. 51, this court held, in the second paragraph of the syllabus, that:
“When, for the purpose of collection, an assessment is divided into two or more installments, payable annually or otherwise, the limitation of time in which the action can be brought, as provided in said section, begins to run against such installment from the time of its collection, and not from the collection of the last installment.”
This court, finding the above rationale applicable to the instant cause, determines that the three-year limitation of R.C. 5733.12 begins to run anew against each illegal and erroneous payment.
Accordingly, the decision of the Board of Tax Appeals is affirmed.
Decision affirmed.
Celebrezze, C. J., Herbert, W. Brown, P. Brown, Sweeney and Locher, JJ., concur.