dissenting. Initially, I must take issue with the majority’s assertion that the commission designated the test year and set the date certain for valuation of the company’s property. In fact, the commission’s opinion and order of March 7, 1985 states that “* * * the company advised the Commission by letter of its decision to amend the prefiling notification to reflect a proposed date certain of March 31, 1984 and a test year ending December 31, 1984. * * *” The commission then journalized its entry fixing the above dates. Thus, the test year and date certain for property valuation were chosen by the company and merely approved by the commission.
*140Relative to the merits, two questions are presented in this appeal. The first is whether the company demonstrated its entitlement to recovery of excise taxes allegedly paid after November 15, 1981. As the majority correctly explains, this court held in Dayton Power & Light Co. v. Pub. Util. Comm. (1983), 4 Ohio St. 3d 91, that R.C. 4909.161 authorized recovery, in a rate case, of excise taxes paid after November 15, 1981. The legislative history contained in the majority opinion is illuminating, and I certainly agree that the company would be entitled to recover such taxes if the company had produced evidence to support its claim that it paid the excise taxes in 1982. The critical question before this court, however, is whether appellant met its burden of proof on this issue. R.C. 4909.19 provides that “[a]t any hearing involving rates or charges sought to be increased, the burden of proof to show that the increased rates or charges are just and reasonable shall be on the public utility.” The evidence cited by appellant in support of its contention that it paid all these excise taxes in 1982 is scanty and even contradictory.1 In view of the fact that concrete and specific evidence showing exactly when the taxes in question were paid was not produced by appellant, the commission was not required to take on faith (as the majority apparently has) the company’s unproven assertion that it actually paid the 1981 excise tax in 1982. Given the company’s failure to meet its statutory burden of showing when the taxes were actually paid, the commission’s determination that the company had not sufficiently demonstrated entitlement to recovery of the 1981 excise tax pursuant to our holding in Dayton Power & Light Co., supra, is neither contrary to law nor an abuse of discretion. Its order should have been affirmed by this court.
The second question in this appeal involves the propriety of the commission’s formula used in calculating the company’s property tax deduction. It is well-settled that this court will not reverse the commission’s order where there is sufficient probative evidence in the record to show that the commission’s determination is not against the manifest weight of the evidence and is not so clearly unsupported by the record as to show misapprehension, mistake or willful disregard of duty. Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1975), 42 Ohio St. 2d 403 [71 O.O.2d 393]; General Motors Corp. v. Pub. Util. Comm. (1976), 47 Ohio St. 2d 58 [1 *141O.O.3d 35]; Columbus v. Pub. Util. Comm. (1979), 58 Ohio St. 2d 103 [12 O.O.3d 112].
The particular formula in the instant case is necessarily flexible in order to accommodate the test-year concept, for a test year (chosen by the utility) does not always coincide with a calendar year. Indeed, in my opinion, the commission’s formula is superior to that proposed by appellant precisely because it is adaptable to all choices of test period. Instead of substituting its judgment (or rather, the utility’s) for that of the commission, this court should defer to the commission’s expertise and affirm its order pursuant to our holdings in Cleveland Elec. Illum. Co. v. Pub. Util. Comm., supra, General Motors Corp. v. Pub. Util. Comm., supra, and Columbus v. Pub. Util. Comm., supra.
For the foregoing reasons, I respectfully dissent.
C. Brown, J., concurs in the foregoing dissenting opinion.For example, the company claims its worksheets demonstrate when the amount in question was paid. However, the records relied on by appellant do not definitively establish when the surcharge for May-December 1981 was paid. Moreover, the company’s own witness at the hearing before the commission, David M. Blank, stated that he believed the first excise tax payment was actually paid in October 1981, contrary to the company’s assertion that all payments were made in 1982. Thus, there were apparently portions of the excise tax not paid in 1982, but the record is silent as to that amount. Even though Dayton Power & Light Co. v. Pub. Util. Comm., supra, holds that payment of excise tax made after November 15, 1981 can be recovered, it would be improper for the commission to speculate as to the time and amount of payment.