concurring in judgment.
In this case the majority arrives at the correct conclusion, even though in so doing it traveled the wrong path and applied an unreasonable interpretation of the statute at issue.
It is my view that the Court of Appeals correctly interpreted R. C. 5739.03, but incorrectly applied its appellate review jurisdiction of the decision of the Board of Tax Appeals.
The Court of Appeals, in my view, applied a reasonable interpretation to R. C. 5739.03. That court held, and I agree, that the presumption established by the section is that the sales of the taxpayer are presumed to be taxable if the certificates of exemption are not obtained as required or letters of usage procured after the 60-day letter. The section requires the vendor to obtain the necessary certificates; it does not require that the vendor must maintain the specific certificates against any contingencies at its peril.
The obvious intent of the section is that there is proof that the state will be assured it will receive the appropriate tax. As stated, the presumption of taxability arises in the absence of the physical presence of the certificates or letters of usage, but certainly it is the reasonable intent of the statute that such presumption may be rebutted and overcome by probative evidence of the original issuance of such certificates.
It is readily apparent that the Board of Tax Appeals followed just such a reasonable interpretation and application of this section. The board, in its review, correctly proceeded upon the basis that the burden of maintaining the required records for examination by the tax agents or timely obtaining letters of usage rests with the taxpayer; in the absence of such proof, the presumption of the taxable nature of the transaction arises. That the presumption may be rebutted by evidence adduced was shown to be acceptable practice under the applicable law by the board, in that it proceeded to review all the evidence presented by the taxpayer in support of its claim that the appropriate tax exemption forms had been *39filed. The board’s opinion accordingly reviewed the evidence, as follows:
“ * * * Appellant’s Treasurer, Mr. Shankel, testified that he heard the employees give this explanation to the tax agent. What specific exemption certificates were involved, what particular customers were involved, and what dates or transactions might have been involved was not established.
“While Mr. Shankel testified that upon his review of the files he found many certificates dated January 1, 1976, he was not personally involved maintaining the files and did not personally know what particular certificates were on file during the assessment period. Although Appellant had apparently maintained a customer card file indicating ‘exempt, not exempt, taxable, not taxable’ status, such cards were not dated or indicated when such card had been added to the file. Such customer card file was not made available for examination at the hearing nor introduced into evidence. Mr. Shankel had no personal knowledge of any preexisting exemption certificate specifically obtained from Ashland Oil, Inc., or that such an exemption certificate had in fact been one of those discarded by Appellant’s clerks.
“In support of Appellant’s claim that it had previously obtained and maintained an exemption certificate from Ashland Oil, Inc., prior to January 1, 1976, Appellant offered the deposition of Mr. Booten, Manager of Excise Taxes for Ashland Oil, Inc. Mr. Booten, testified that he could not specifically recall issuing an exemption certificate to this particular Appellant for a period prior to 1976 covering the years 1973, 1974 and 1975. U * * *
“Mr. Booten testified, in effect, that Ashland’s records did not contain a copy of an exemption certificate issued during the period from 1973 through 1975, that the fact that Canton Structural Steel did not charge Ashland sales tax was enough proof to him to say that Ashland did issue or should have issued an exemption certificate. He had no personal knowledge as to whether such an exemption certificate had in fact been issued pertaining to the period here in question.
“While the record considered as a whole indicates a liklihood [sic] that Ashland Oil, Inc., may have issued an exemp*40tion certificate to the Appellant pertaining to its purchases here involved, the fact remains that Appellant has failed to establish if and when such an exemption certificate may have been issued that would be applicable to the specific sales transactions here involved. The evidence adduced is primarily of a speculative nature based upon primarily hearsay information. * * * ”
The Board of Tax Appeals, after reviewing the totality of the evidence presented on behalf of the taxpayer, concluded that, “the maintenance of adequate documentation, as specified by law, rather than reliance upon the testimony of the taxpayer or taxpayer’s personnel, is required. Appellant's [taxpayer’s] evidence fails to meet Appellant’s burden of proof in this instance.” This was a finding by the board as the trier of the facts that the taxpayer had not, based upon the facts presented, overcome the statutory presumption.
The finding of the Board of Tax Appeals, based upon the evidence adduced, was a proper exercise of its judgment, and a Court of Appeals exceeds the scope of its review by substituting its judgment for that of the Board of Tax Appeals. As this court expressed in PPG Industries v. Kosydar (1981), 65 Ohio St. 2d 80, at page 81:
“R. C. 5717.04 limits the revisory jurisdiction of the Court of Appeals to determining whether the decision of the Board of Tax Appeals was reasonable and lawful. Wheeling Steel Corp. v. Evatt (1944), 143 Ohio St. 71, 77.”
Accordingly, the issue before the Court of Appeals here was not whether that court believed certain testimony or evidence, but rather whether given such evidence, the Board of Tax Appeals could reasonably have made its determination of the facts.
The Court of Appeals, rather than applying the proper standard of review, substituted its own judgment for that of the Board of Tax Appeals which had properly rejected certain testimony as being unreliable hearsay and speculation. Doing such, the Court of Appeals exceeded its review authority and, therefore, its decision was error and should be reversed.
C. Brown and Krupansky, JJ., concur in the foregoing concurring opinion.