dissenting. I respectfully dissent because the majority opinion contradicts the holding of Lancaster Colony v. Lindley (1980), 61 Ohio St. 2d 268 [15 O.O.3d 270], and because it ignores the plain language of R.C. 5733.12, as that statute existed at the time appellant paid its tax, and sought its tax refund.
The issue in this case is whether an application for a corporate franchise tax refund must be filed within three years from the date the tax was paid, or whether it may be filed within three years from whichever of the following is earlier: (1) the date the annual corporate franchise tax report was filed, or (2) the date it should have been filed.
At the time appellant paid its corporate franchise tax and sought its refund, R.C. 5733.12, dealing with corporate franchise tax refunds, stated:
*7“* * * Applications [for tax refunds] shall be filed with the tax commissioner * * * within ninety days from the date it is ascertained that the assessment or payment was illegal or erroneous, 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.)
The majority, for reasons that are manifestly insufficient, finds that this statute “is particularly ambiguous” and causes “inequitable, if not illogical,” results. The majority then concludes that the plain statutory language must be interpreted to mean something that it does not say, i.e., that the refund application must be filed within three years from the date the annual corporate franchise tax report was filed, or should have been filed, whichever is earlier. Since the statute says the refund application must be filed within three years “* * * from the date of the illegal or erroneous payment * * *,” I cannot agree with the majority’s statutory interpretation.
In addition to disregarding the clear expression of legislative intent embodied in R.C. 5733.12, the majority has provided no acceptable basis for distinguishing Lancaster Colony v. Lindley, supra, from this case. In Lancaster Colony, the taxpayers made estimated corporate franchise tax payments in January and March 1972. In May 1972, they filed their corporate franchise tax report. On April 30, 1975, the Tax Commissioner issued an assessment, for tax year 1972, of $9,349.57. The taxpayers paid the assessment on May 29, 1975, and immediately filed a refund application. On February 6, 1976, the taxpayers filed an amended refund application for taxes they had remitted in 1972. The Lancaster Colony court held the refund application for the 1972 payments was not timely filed but that the refund application for the 1975 assessment was timely filed. The court stated at 270-271:
“Appellants [the taxpayers] 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 [the Tax Commissioner] contends that the three years 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 [paid in 1972] 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 [Tax Commissioner’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.’ * * *
“This court * * * determines that the three-year limitation of R.C. 5733.12 begins to run anew against each illegal and erroneous payment" (Emphasis added.)
*8For the foregoing reasons, I would hold that, pursuant to R.C. 5733.12, as it existed at the time the refund herein was sought by appellant, applications for corporate franchise tax refunds must be filed with the Tax Commissioner within three years from the illegal or erroneous payment of the tax. Accordingly, I would affirm the decision of the Board of Tax Appeals.
Celebrezze, C.J., concurs in the foregoing dissenting opinion.