dissenting. The sole issue presented herein is whether the Board of Tax Appeals erred in its determination that it lacked jurisdiction to hear the auditor’s appeal of the commissioner’s apportionment order. The majority holds that it did. However, since I find no error, I dissent.
Basic to my dissent is the fact that the Board of Tax Appeals is a creature of statute—having been created by the General Assembly, the power and authority of the Board of Tax Appeals is limited to that conferred by statute. Cooke v. Kinney (1981), 65 Ohio St. 2d 7; Turner Constr. Co. v. Lindley (1980), 61 Ohio St. 2d 124; and Steward v. Evatt (1944), 143 Ohio St. 547. Therefore, absent an express grant of authority, the Board of Tax Appeals may not exercise jurisdiction in this matter.
While I agree with the majority that, for purposes of R. C. 5727.47, the words “order” and “apportionment” are used interchangeably, I do not believe that this finding is dispositive of the issue herein presented. The ultimate question remains: Does R. C. 5717.02 authorize an appeal to the Board of Tax Appeals of the commissioner’s apportionment order? I am of the opinion that it does not.
In pertinent part, R. C. 5717.02 states: “Appeals from final determinations by the tax commissioner* **of any preliminary, amended, or final tax assessments, reassessments, valuations, determinations, findings, computations, or orders* * *may be taken to the board of tax appeals* * *.” (Em*296phasis added.) The majority holds that the commissioner’s apportionment decision falls within the ambit of R. C. 5717.02 because the commissioner “is required to ‘compute’ or ‘determine’ the proportionate share of the value of property to be allocated to each county***.”
In reaching today’s decision, the majority effectively eradicates the modifying word “tax” from the statute. The General Assembly did not intend that all computations would be appealable; rather, it intended that only the commissioner’s “tax” computations are subject to appeal. In order to qualify as a “tax” computation, the commissioner’s action must relate to the taxable status of the property in question. See Pittsburgh Steel Co. v. Bowers (1961), 172 Ohio St. 14. Inherent in any determination affecting the taxable status of property is an exercise of some discretion or decision making on the part of the commissioner. Such discretion is clearly absent in this case. Here, the taxable status of the property had already been established, without objection. The commissioner’s action merely divided the value of the property among the appropriate counties.5
Because I do not believe that the computation involved herein was a “tax” computation, I would affirm the Board of Tax Appeals.
Celebrezze, C. J., and W. Brown, J., concur in the foregoing dissenting opinion.In R. C. 5727.21, the General Assembly has established a simple and direct formula for apportioning the value of utility property among the counties. In essence, the apportionment is made on a wire-mile basis. The gist of appellant’s complaint is that the commissioner has failed to properly apply the statutory apportionment formula.
There are no facts before us from which we can decide this issue; however, it appears, at least facially, that the appellant’s claim has merit. R. C. 5727.21 requires the apportionment to be based upon the “lines of wire” owned by the company in the county. In his apportionment order, the commissioner apparently distinguishes between “ordinary wire” and “coaxial cable.” I can see no statutory basis for this distinction—either something is a “line of wire” or it is not. To the extent the commissioner has deviated from the statutory formula, appellant may be entitled to relief. However, I remain firm in my conviction that such relief is by way of mandamus and not by appeal.