NASCAR Holdings v. Testa: A Yellow Flag for Tax Practitioners and Taxpayers
In NASCAR Holdings, Inc. v. Testa, decided December 21, 2017, the Ohio Supreme Court held that the filing of a notice of appeal with the Ohio Board of Tax Appeals (“BTA”) by an attorney not licensed in Ohio did not deprive the BTA of jurisdiction over the appeal. The Court followed the plurality opinion in Jemo Assoc., Inc. v. Lindley, 64 Ohio St.2d 365 (1980), which reversed the BTA’s dismissal of the appeal because it was filed by a corporate accountant. Jemo stated that the proper inquiry in determining whether the notice of appeal invoked the BTA’s jurisdiction is whether the person who filed the notice of appeal was authorized by the taxpayer to file the appeal. In NASCAR, the BTA attempted to distinguish Jemo based on the fact that the NASCAR notice of appeal was filed by an attorney who was not licensed in Ohio, and thus engaged in the unauthorized practice of law. Of course, as the Court noted, the corporate accountant in Jemo was also not licensed to practice law in Ohio. The Court held that the unauthorized practice of law was a separate issue from the issue of jurisdiction. Based on R.C. 5717.02 and Jemo, the Court held that the notice of appeal filed by the non-Ohio attorney properly invoked the jurisdiction of the BTA and reversed the BTA’s dismissal of NASCAR’s appeal. The NASCAR decision resolves the jurisdictional issue that has been raised in numerous appeals where the notice of appeal was not filed by an Ohio-licensed attorney. A notice of appeal filed with the BTA by a person authorized by the taxpayer invokes the jurisdiction of the BTA to hear the appeal. It is critical, however, for a taxpayer to understand the narrow scope of the NASCAR opinion. It holds that a notice of appeal filed by a non-Ohio attorney authorized by the taxpayer properly invokes the jurisdiction of the BTA over the appeal. It does not hold that a taxpayer can be represented by a non-Ohio attorney in the proceedings before the BTA. That would clearly constitute the practice of law, which can be undertaken only by an Ohio-licensed attorney. Thus, if a taxpayer desires to pursue its appeal at the BTA through the various stages of the proceeding, such as discovery, hearing, and submission of legal arguments, the taxpayer must retain an Ohio-licensed attorney.