dissenting.
{¶ 22} I believe that Mahoning County has a right to intervene in the tax appeal pending before the BTA. Therefore, I respectfully dissent.
{¶ 23} The majority holds that neither the tax laws nor privity justifies Mahoning County in intervening in the tax appeal. The majority also holds that preventing Mahoning County from intervening is not fundamentally unfair.
R.C. 5717.02 and Privity
{¶ 24} As the majority recognizes, the tax statutes do not expressly prohibit intervention in a tax appeal. Instead, the majority holds that the tax exemption statutes imply a legislative intent to prevent a later owner, through its own litigation, from obtaining a tax benefit of exemption for a prior year, when it did not own the property on the lien date of that year. The majority relies in part upon R.C. 5713.08(B), which requires that an applicant for an exemption must own the property on the lien date of the prior year for which the tax benefit of an exempt use is claimed to support the conclusion that the purchaser of real property may not intervene in a pending appeal before the BTA to contest the denial of an exemption. The majority recognizes that R.C. 5713.08(B) applies only to remission, but nevertheless holds that it “reflects a broader legislative intent that a later owner may not, through its own litigation, obtain the tax benefit of exemption for a prior year, when it did not own the property on the lien date of that year.”
{¶ 25} The issue here is whether a property owner has standing to intervene in a pending tax appeal filed by the prior owner of the property. Therefore, the requirements for a property owner applying for an exemption are not persuasive in determining whether a property owner can intervene in a pending appeal.
Nancy Hardin Rogers, Attorney General, and Damion M. Clifford, Assistant Attorney General, for appellee Tax Commissioner of Ohio. Harrington, Hoppe & Mitchell, Ltd., and Carmen V. Codjoe, for appellant.{¶ 26} R.C. 5717.02 provides that a “taxpayer” may appeal a final determination by the Tax Commissioner to the BTA. Although the owner of real property is not personally responsible for any tax obligations on that land, the owner has a substantial interest, in that tax liens affect the property’s value and can ultimately result in a judicial sale to satisfy them. See S. Ohio Sav. Bank & Trust Co. v. Bolce (1956), 165 Ohio St. 201, 208, 59 O.O. 290, 135 N.E.2d 382 (obligations for real property tax are not personal but “run with the land”). In other words, the current owner of real property is the taxpayer. Thus, I would hold that for purposes of intervening in a pending tax appeal filed by the property’s prior owner, R.C. 5717.02 indicates that the owner of real property has standing to intervene and to litigate a pending appeal filed by the prior owner of the property.
{¶27} Common-law principles also support the notion that a buyer of real property has a right to join and litigate a pending tax appeal pertaining to the property. The buyer and seller of real property are in privity, and consequently, the buyer of real property “ ‘stands in the same shoes’ as to the rights of the prior owner in the same property, thereby giving the [buyer] the same rights and obligation as the original owner had in regard to the property.” Berardi v. Ohio Turnpike Comm. (1965), 1 Ohio App.2d 365, 370, 30 O.O.2d 385, 205 N.E.2d 23, see also Columbus v. Union Cemetery Assn. (1976), 45 Ohio St.2d 47, 74 O.O.2d 79, 341 N.E.2d 298. Thus, I would also hold that privity supports the proposition that a property owner should be allowed to intervene in a pending tax appeal filed by the prior owner.
Fundamental Fairness
{¶ 28} The majority holds that denying Mahoning County the right to intervene in the instant tax appeal does not violate fundamental fairness. I disagree. Even though Mahoning County knew or should have known of the potential tax obligation on the property, I believe that as the new owner of the property, it had an expectation that it could pursue the pending tax appeal by stepping into the shoes of Southside. Therefore, I believe that denying Mahoning County the right to intervene in the tax appeal violates fundamental fairness.
{¶ 29} Accordingly, I would hold that R.C. 5717.02, the common-law principle of privity, and fundamental fairness justify permitting Mahoning County to intervene in the pending tax appeal. Accordingly, I respectfully dissent.
Pfeifer and O’Connor, JJ., concur in the foregoing opinion.