Bill Text: OH HB138 | 2013-2014 | 130th General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: To make changes to the law governing the Board of Tax Appeals, including authorizing a small claims docket within the Board, requiring the Board to adopt rules to manage appeals and operate a mediation program, requiring the Board to receive notices of appeal and statutory transcripts electronically, providing pleading standards for appeals to the Board, and expressly authorizing the Board to consider motions.

Spectrum: Moderate Partisan Bill (Republican 46-15)

Status: (Passed) 2013-10-11 - Effective Date [HB138 Detail]

Download: Ohio-2013-HB138-Introduced.html

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As Introduced

130th General Assembly Regular Session 2013-2014

H. B. No. 138

Representatives McClain, Letson 

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A BILL

To amend sections 5703.02, 5717.01, 5717.011,

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5717.02, and 5717.04 and to enact sections

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5703.021 and 5717.031 of the Revised Code to make

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changes to the law governing the Board of Tax

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Appeals, including authorizing a small claims

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division within the Board, requiring the Board to

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institute measures to manage certain appeals,

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requiring the Board to receive notices of appeal

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and statutory transcripts electronically,

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providing pleading standards for appeals to the

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Board, granting the Board authority to grant

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summary judgments and consider motions, vesting

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hearing examiners with the authority to determine

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credibility of witnesses and issue statements of

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fact and conclusions of law separately, and

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authorizing the Board to require parties to engage

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in mediation, and to authorize the Tax

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Commissioner to expedite and issue a final

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determination for residential property value

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appeals with written consent of the parties.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 5703.02, 5717.01, 5717.011, 5717.02,	21
and 5717.04 be amended and sections 5703.021 and 5717.031 of the	22
Revised Code be enacted to read as follows:	23

Sec. 5703.02.  There is hereby created the board of tax	24
appeals, which shall exercise the following powers and perform the	25
following duties:	26

(A) Exercise the authority provided by law to hear and	27
determine all appeals of questions of law and fact arising under	28
the tax laws of this state in appeals from decisions, orders,	29
determinations, or actions of any tax administrative agency	30
established by the law of this state, including but not limited to	31
appeals from:	32

(1) Actions of county budget commissions;

33

(2) Decisions of county boards of revision;

34

(3) Actions of any assessing officer or other public official	35
under the tax laws of this state;	36

(4) Final determinations by the tax commissioner of any	37
preliminary, amended, or final tax assessments, reassessments,	38
valuations, determinations, findings, computations, or orders made	39
by himthe tax commissioner;	40

(5) Adoption and promulgation of rules of the tax	41
commissioner.	42

(B) Appoint a secretary of the board of tax appeals, who	43
shall serve in the unclassified civil service at the pleasure of	44
the board, and any other employees as are necessary in the	45
exercise of the powers and the performance of the duties and	46
functions that the board is by law authorized and required to	47
exercise, and prescribe the duties of all employees, and to fix	48
their compensation as provided by law;	49

(C) Maintain a journal, which shall be open to public	50
inspection and in which the secretary shall keep a record of all	51
of the proceedings and the vote of each of its members upon every	52
action taken by it;	53

(D) Adopt and promulgate, in the manner provided by section	54
5703.14 of the Revised Code, and enforce all rules relating to the	55
procedure of the board in hearing appeals it has the authority or	56
duty to hear, and to the procedure of officers or employees whom	57
the board may appoint; provided that section 5703.13 of the	58
Revised Code shall apply to and govern the procedure of the board.	59
Such rules shall include, but need not be limited to, the	60
following:	61

(1) Rules governing the creation and implementation of a	62
mediation program, including procedures for requesting, requiring	63
participation in, objecting to, and conducting a mediation;	64

(2) A requirement that the tax commissioner, county boards of	65
revision, and municipal boards of appeal created under section	66
718.11 of the Revised Code electronically file any transcript	67
required to be filed with the board of tax appeals, and	68
instructions and procedures for the electronic filing of such	69
transcripts.	70

Sec. 5703.021. (A) There is hereby established a small claims	71
division of the board of tax appeals.	72

(B) The small claims division shall have jurisdiction over	73
the following:	74

(1) Appeals commenced under section 5717.01 of the Revised	75
Code in which the property at issue qualifies for the partial tax	76
exemption described in section 319.302 of the Revised Code; or	77

(2) Appeals commenced under section 5717.011 or 5717.02 of	78
the Revised Code when the amount in controversy claimed by the	79
taxpayer does not exceed ten thousand dollars exclusive of	80
interest and penalty. The board by rule may modify the	81
jurisdictional dollar threshold for cases qualifying for the small	82
claims division.	83

(C) Notwithstanding division (B) of this section, the board	84
shall reassign an appeal initially assigned to the small claims	85
division to the regular docket upon request of a party or when the	86
appeal presents an issue of public or great general interest or	87
presents a constitutional issue, or when the board determines that	88
the appeal does not meet the requirements of division (B) of this	89
section.	90

(D) The board may reassign to the small claims docket any	91
appeal originally assigned to the regular docket with the written	92
consent of all the parties.	93

(E) The board shall adopt rules to implement procedures to	94
provide informal review of the taxpayers' appeals in the small	95
claims division, which may include telephonic hearings.	96

(F) A decision or order of the small claims division shall be	97
conclusive as to all parties and may not be appealed, and shall be	98
recorded in the journal required by division (C) of section	99
5703.02 of the Revised Code, but such a decision or order shall	100
not be considered as precedent in any other case, hearing, or	101
proceeding.	102

(G) The appearance of an attorney at law licensed to practice	103
law in this state on behalf of any party to an appeal assigned to	104
the small claims docket is permitted but not required. A person	105
other than a natural person, which is a real party in interest as	106
taxpayer or claimant, or an entity that may participate by	107
statute, may commence such an appeal or appear through an attorney	108
at law licensed to practice law in this state. Such an	109
organization may, through any bona fide officer, partner, member,	110
trustee, or salaried employee, file and present its claim or	111
defense in any appeal in the small claims division, provided the	112
organization does not, in the absence of representation by an	113
attorney at law licensed to practice law in this state, engage in	114
cross-examination, argument, or other acts of advocacy. The board	115
may provide by rule for additional guidelines applicable to	116
practice before the board.	117

Sec. 5717.01.  An appeal from a decision of a county board of	118
revision may be taken to the board of tax appeals within thirty	119
days after notice of the decision of the county board of revision	120
is mailed as provided in division (A) of section 5715.20 of the	121
Revised Code. Such an appeal may be taken by the county auditor,	122
the tax commissioner, or any board, legislative authority, public	123
official, or taxpayer authorized by section 5715.19 of the Revised	124
Code to file complaints against valuations or assessments with the	125
auditor. Such appeal shall be taken by the filing of a notice of	126
appeal, in person or by certified mail, express mail, facsimile	127
transmission, electronic transmission using electronic mail, or	128
by authorized delivery service, with the board of tax appeals and	129
with the county board of revision. If notice of appeal is filed by	130
certified mail, express mail, or authorized delivery service as	131
provided in section 5703.056 of the Revised Code, the date of the	132
United States postmark placed on the sender's receipt by the	133
postal service or the date of receipt recorded by the authorized	134
delivery service shall be treated as the date of filing. If notice	135
of appeal is filed by facsimile transmission or electronic	136
transmission using electronic mail, the date and time of	137
transmission shall be treated as the date of filing. Upon receipt	138
of such notice of appeal such county board of revision shall by	139
certified mail notify all persons thereof who were parties to the	140
proceeding before such county board of revision, and shall file	141
proof of such notice with the board of tax appeals. The county	142
board of revision shall thereupon certify to the board of tax	143
appeals a transcript of the record of the proceedings of the	144
county board of revision pertaining to the original complaint, and	145
all evidence offered in connection therewith. Such appeal may be	146
heard by the board of tax appeals at its offices in Columbus or in	147
the county where the property is listed for taxation, or the board	148
of tax appeals may cause its examiners to conduct such hearing and	149
to report to it their findings for affirmation or rejection. An	150
appeal may proceed pursuant to section 5703.021 of the Revised	151
Code in the small claims division if the appeal qualifies under	152
that section.	153

The board of tax appeals may order the appeal to be heard on	154
the record and the evidence certified to it by the county board of	155
revision, or it may order the hearing of additional evidence, and	156
it may make such investigation concerning the appeal as it deems	157
proper.	158

Sec. 5717.011.  (A) As used in this chapter, "tax	159
administrator" has the same meaning as in section 718.01 of the	160
Revised Code and "Ohio business gateway" has the same meaning as	161
in section 718.051 of the Revised Code.	162

(B) Appeals from a municipal board of appeal created under	163
section 718.11 of the Revised Code may be taken by the taxpayer or	164
the tax administrator to the board of tax appeals or may be taken	165
by the taxpayer or the tax administrator to a court of common	166
pleas as otherwise provided by law. If the taxpayer or the tax	167
administrator elects to make an appeal to the board of tax appeals	168
or court of common pleas, and subject to section 5703.021 of the	169
Revised Code with respect to small claims proceedings, the appeal	170
shall be taken by the filing of a notice of appeal with the board	171
of tax appeals or court of common pleas, the municipal board of	172
appeal, and the opposing party. The notice of appeal shall be	173
filed within sixty days after the day the appellant receives	174
notice of the decision issued under section 718.11 of the Revised	175
Code. The notice of appeal may be filed in person or by certified	176
mail, express mail, orfacsimile transmission, electronic	177
transmission using electronic mail, by authorized delivery service	178
as provided in section 5703.056 of the Revised Code or, in the	179
case of an appeal filed with the board of tax appeals,	180
electronically through the Ohio business gateway. If the notice of	181
appeal is filed by certified mail, express mail, or authorized	182
delivery service as provided in section 5703.056 of the Revised	183
Code, the date of the United States postmark placed on the	184
sender's receipt by the postal service or the date of receipt	185
recorded by the authorized delivery service shall be treated as	186
the date of filing. If notice of appeal is filed by facsimile	187
transmission, electronic transmission using electronic mail, or	188
electronically through the Ohio business gateway, the date and	189
time of the transmission shall be treated as the date of filing.	190
The notice of appeal shall have attached thereto and incorporated	191
therein by reference a true copy of the decision issued under	192
section 718.11 of the Revised Code and shall specify the errors	193
therein complained of, but failure to attach a copy of such notice	194
and incorporate it by reference in the notice of appeal does not	195
invalidate the appeal.	196

(C) A notice of appeal for an appeal filed with the board of	197
tax appeals shall contain a short and plain statement of the	198
claimed error showing that the appellant is entitled to relief and	199
a demand for the relief to which the appellant claims to be	200
entitled. An appellant may amend the notice of appeal once as a	201
matter of course within sixty days after the appellant receives	202
notice of the certification of the transcript. Otherwise, an	203
appellant may amend the notice of appeal only after receiving	204
leave of the board or the written consent of each adverse party.	205
Leave of the board shall be freely given when justice so requires.	206

(D) Upon the filing of a notice of appeal with the board of	207
tax appeals, the municipal board of appeal shall certify to the	208
board of tax appeals a transcript of the record of the proceedings	209
before it, together with all evidence considered by it in	210
connection therewith. The secretary of the board of tax appeals,	211
by certified mail or electronic mail, shall notify all parties of	212
record of the filing of the transcript. Such appeals may be heard	213
by the board at its office in Columbus or in the county where the	214
appellant resides, or it may cause its examiners to conduct such	215
hearings and to report to it their findings for affirmation or	216
rejection. The board may order the appeal to be heard upon the	217
record and the evidence certified to it by the administrator, but	218
upon the application of any interested party the board shall order	219
the hearing of additional evidence, and the board may make such	220
investigation concerning the appeal as it considers proper. An	221
appeal may proceed pursuant to section 5703.021 of the Revised	222
Code in the small claims division if the appeals qualifies under	223
that section.	224

(D)(E) If an issue being appealed under this section is	225
addressed in a municipal corporation's ordinance or regulation,	226
the tax administrator, upon the request of the board of tax	227
appeals, shall provide a copy of the ordinance or regulation to	228
the board of tax appeals.	229

Sec. 5717.02.  (A) Except as otherwise provided by law,	230
appeals from final determinations by the tax commissioner of any	231
preliminary, amended, or final tax assessments, reassessments,	232
valuations, determinations, findings, computations, or orders made	233
by the commissioner may be taken to the board of tax appeals by	234
the taxpayer, by the person to whom notice of the tax assessment,	235
reassessment, valuation, determination, finding, computation, or	236
order by the commissioner is required by law to be given, by the	237
director of budget and management if the revenues affected by that	238
decision would accrue primarily to the state treasury, or by the	239
county auditors of the counties to the undivided general tax funds	240
of which the revenues affected by that decision would primarily	241
accrue. Appeals from the redetermination by the director of	242
development services under division (B) of section 5709.64 or	243
division (A) of section 5709.66 of the Revised Code may be taken	244
to the board of tax appeals by the enterprise to which notice of	245
the redetermination is required by law to be given. Appeals from a	246
decision of the tax commissioner or county auditor concerning an	247
application for a property tax exemption may be taken to the board	248
of tax appeals by the applicant or by a school district that filed	249
a statement concerning that application under division (C) of	250
section 5715.27 of the Revised Code. Appeals from a	251
redetermination by the director of job and family services under	252
section 5733.42 of the Revised Code may be taken by the person to	253
which the notice of the redetermination is required by law to be	254
given under that section.	255

(B) The appeals shall be taken by the filing of a notice of	256
appeal with the board, and with the tax commissioner if the tax	257
commissioner's action is the subject of the appeal, with the	258
county auditor if the county auditor's action is the subject of	259
the appeal, with the director of development if that director's	260
action is the subject of the appeal, or with the director of job	261
and family services if that director's action is the subject of	262
the appeal. The notice of appeal shall be filed within sixty days	263
after service of the notice of the tax assessment, reassessment,	264
valuation, determination, finding, computation, or order by the	265
commissioner, property tax exemption determination by the	266
commissioner or the county auditor, or redetermination by the	267
director has been given as provided in section 5703.37, 5709.64,	268
5709.66, or 5733.42 of the Revised Code. The notice of appeal may	269
be filed in person or by certified mail, express mail, or	270
facsimile transmission, electronic transmission using electronic	271
mail, by authorized delivery service, or electronically through	272
the Ohio business gateway. If the notice of appeal is filed by	273
certified mail, express mail, or authorized delivery service as	274
provided in section 5703.056 of the Revised Code, the date of the	275
United States postmark placed on the sender's receipt by the	276
postal service or the date of receipt recorded by the authorized	277
delivery service shall be treated as the date of filing. If notice	278
of appeal is filed by facsimile transmission, electronic	279
transmission using electronic mail, or electronically through the	280
Ohio business gateway, the date and time of the transmission shall	281
be treated as the date of filing. The notice of appeal shall have	282
attached to it and incorporated in it by reference a true copy of	283
the notice sent by the commissioner, county auditor, or director	284
to the taxpayer, enterprise, or other person of the final	285
determination or redetermination complained of, and shall also	286
specify the errors therein complained of, but failure to attach a	287
copy of that notice and to incorporate it by reference in the	288
notice of appeal does not invalidate the appeal.	289

(C) A notice of appeal shall contain a short and plain	290
statement of the claimed error showing that the appellant is	291
entitled to relief and a demand for the relief to which the	292
appellant claims to be entitled. An appellant may amend the notice	293
of appeal once as a matter of course within sixty days after the	294
appellant receives notice of the certification of the transcript.	295
Otherwise, an appellant may amend the notice of appeal only after	296
receiving leave of the board or the written consent of each	297
adverse party. Leave of the board shall be freely given when	298
justice so requires.	299

(D) Upon the filing of a notice of appeal, the secretary of	300
the board of tax appeals, by certified mail or electronic mail,	301
shall provide notice of the filing of the appeal to the tax	302
commissioner, the director of development services, or the	303
director of job and family services if the commissioner's or	304
director's action is the subject of the appeal. The tax	305
commissioner, county auditor, or the director, as appropriate,	306
shall certify to the board a transcript of the record of the	307
proceedings before the commissioner, auditor, or director,	308
together with all evidence considered by the commissioner,	309
auditor, or director in connection with the proceedings. The	310
secretary of the board of tax appeals, by certified mail or	311
electronic mail, shall notify all parties of record of the filing	312
of the transcript. Those appeals or applications may be heard by	313
the board at its office in Columbus or in the county where the	314
appellant resides, or it may cause its examiners to conduct the	315
hearings and to report to it their findings for affirmation or	316
rejection. The board shall institute procedures to control and	317
manage appeals governed by this section. The procedures shall	318
include the conduct of discovery such that, upon the filing of the	319
statutory transcript in an appeal, the board, through its attorney	320
examiners, shall establish a case management schedule, subject to	321
section 5703.021 of the Revised Code.	322

(D)(E) The board may order the appeal to be heard upon the	323
record and the evidence certified to it by the commissioner,	324
county auditor, or director, but upon the application of any	325
interested party the board shall order the hearing of additional	326
evidence, and it may make an investigation concerning the appeal	327
that it considers proper. An appeal may proceed pursuant to	328
section 5703.021 of the Revised Code in the small claims division	329
if the appeal qualifies under that section.	330

(F) As used in this section, "Ohio business gateway" has the	331
same meaning as in section 718.051 of the Revised Code.	332

Sec. 5717.031.  (A) Upon the motion of any party to an appeal	333
commenced under section 5717.01, 5717.011, or 5717.02 of the	334
Revised Code, or upon motion by the board of tax appeals, the	335
board may grant summary judgment if the moving party shows or the	336
board finds that there exists no genuine issue of material fact	337
and the moving party or the party designated by the board is	338
entitled to judgment as a matter of law. The board may adopt rules	339
governing the use of motions for summary judgment.	340

(B)(1) The board of tax appeals may consider and decide	341
motions, including motions in limine, before the board makes a	342
decision on any matter.	343

(2) At the close of a hearing or within ten days thereafter,	344
a party may make a motion to require the board, if the board	345
conducted the hearing, or the examiner who conducted the hearing	346
to make findings of fact and conclusions of law before the board	347
decides an appeal or before the appeal is submitted to the board	348
of tax appeals for decision, respectively. The board or examiner	349
shall send a copy of the board's or examiner's findings of fact	350
and conclusions of law to the parties.	351

(3) The board, if the board conducts the hearing, or the	352
examiner who conducts a hearing shall determine the credibility of	353
each witness. If an examiner determines the credibility of a	354
witness, the board shall not change the examiner's determination	355
absent clear and convincing evidence that the examiner's	356
determination of the credibility of the witness is incorrect.	357

Sec. 5717.04. TheThis section does not apply to any	358
decision and order of the board made pursuant to section 5703.021	359
of the Revised Code. Any such decision and order shall be	360
conclusive upon all parties and may not be appealed.	361

The proceeding to obtain a reversal, vacation, or	362
modification of a decision of the board of tax appeals shall be by	363
appeal to the supreme court or the court of appeals for the county	364
in which the property taxed is situate or in which the taxpayer	365
resides. If the taxpayer is a corporation, then the proceeding to	366
obtain such reversal, vacation, or modification shall be by appeal	367
to the supreme court or to the court of appeals for the county in	368
which the property taxed is situate, or the county of residence of	369
the agent for service of process, tax notices, or demands, or the	370
county in which the corporation has its principal place of	371
business. In all other instances, the proceeding to obtain such	372
reversal, vacation, or modification shall be by appeal to the	373
court of appeals for Franklin county.	374

Appeals from decisions of the board determining appeals from	375
decisions of county boards of revision may be instituted by any of	376
the persons who were parties to the appeal before the board of tax	377
appeals, by the person in whose name the property involved in the	378
appeal is listed or sought to be listed, if such person was not a	379
party to the appeal before the board of tax appeals, or by the	380
county auditor of the county in which the property involved in the	381
appeal is located.	382

Appeals from decisions of the board of tax appeals	383
determining appeals from final determinations by the tax	384
commissioner of any preliminary, amended, or final tax	385
assessments, reassessments, valuations, determinations, findings,	386
computations, or orders made by the commissioner may be instituted	387
by any of the persons who were parties to the appeal or	388
application before the board, by the person in whose name the	389
property is listed or sought to be listed, if the decision	390
appealed from determines the valuation or liability of property	391
for taxation and if any such person was not a party to the appeal	392
or application before the board, by the taxpayer or any other	393
person to whom the decision of the board appealed from was by law	394
required to be sent, by the director of budget and management if	395
the revenue affected by the decision of the board appealed from	396
would accrue primarily to the state treasury, by the county	397
auditor of the county to the undivided general tax funds of which	398
the revenues affected by the decision of the board appealed from	399
would primarily accrue, or by the tax commissioner.	400

Appeals from decisions of the board upon all other appeals or	401
applications filed with and determined by the board may be	402
instituted by any of the persons who were parties to such appeal	403
or application before the board, by any persons to whom the	404
decision of the board appealed from was by law required to be	405
sent, or by any other person to whom the board sent the decision	406
appealed from, as authorized by section 5717.03 of the Revised	407
Code.	408

Such appeals shall be taken within thirty days after the date	409
of the entry of the decision of the board on the journal of its	410
proceedings, as provided by such section, by the filing by	411
appellant of a notice of appeal with the court to which the appeal	412
is taken and the board. If a timely notice of appeal is filed by a	413
party, any other party may file a notice of appeal within ten days	414
of the date on which the first notice of appeal was filed or	415
within the time otherwise prescribed in this section, whichever is	416
later. A notice of appeal shall set forth the decision of the	417
board appealed from and the errors therein complained of. Proof of	418
the filing of such notice with the board shall be filed with the	419
court to which the appeal is being taken. The court in which	420
notice of appeal is first filed shall have exclusive jurisdiction	421
of the appeal.	422

In all such appeals the tax commissioner or all persons to	423
whom the decision of the board appealed from is required by such	424
section to be sent, other than the appellant, shall be made	425
appellees. Unless waived, notice of the appeal shall be served	426
upon all appellees by certified mail. The prosecuting attorney	427
shall represent the county auditor in any such appeal in which the	428
auditor is a party.	429

The board, upon written demand filed by an appellant, shall	430
within thirty days after the filing of such demand file with the	431
court to which the appeal is being taken a certified transcript of	432
the record of the proceedings of the board pertaining to the	433
decision complained of and the evidence considered by the board in	434
making such decision.	435

If upon hearing and consideration of such record and evidence	436
the court decides that the decision of the board appealed from is	437
reasonable and lawful it shall affirm the same, but if the court	438
decides that such decision of the board is unreasonable or	439
unlawful, the court shall reverse and vacate the decision or	440
modify it and enter final judgment in accordance with such	441
modification.	442

The clerk of the court shall certify the judgment of the	443
court to the board, which shall certify such judgment to such	444
public officials or take such other action in connection therewith	445
as is required to give effect to the decision. The "taxpayer"	446
includes any person required to return any property for taxation.	447

Any party to the appeal shall have the right to appeal from	448
the judgment of the court of appeals on questions of law, as in	449
other cases.	450

Section 2. That existing sections 5703.02, 5717.01, 5717.011,	451
5717.02, and 5717.04 of the Revised Code are hereby repealed.	452

Section 3. This section applies to any residential property	453
case that has been appealed from a board of revision and is	454
docketed before the Board of Tax Appeals. Upon the written consent	455
of the parties to have the case transferred to the Department of	456
Taxation, the Tax Commissioner may process such appeals and issue	457
a determination that is final for all parties. The Commissioner	458
shall establish a practice and procedure for processing such	459
cases. Any request by a party for transfer of a case to the	460
Department of Taxation under this section shall be made within two	461
years from the effective date of this section. This authority is	462
granted in conjunction with section 5703.021 of the Revised Code.	463

Section 4. The amendment by this act of division (D)(2) of	464
section 5703.02 of the Revised Code takes effect January 1, 2015.	465