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Right of direct appeal to Ohio Supreme Court from some Ohio Board of Tax Appeals decisions effective September 13, 2018
The Ohio General Assembly and Governor John Kasich should be applauded for re-instating the right for Ohio taxpayers to appeal some Ohio Board of Tax Appeals (“BTA”) decisions directly to the Ohio Supreme Court after that direct right of appeal had been temporarily removed in last year’s Ohio Budget Bill (Am. Sub. H.B. 49 of the 132nd Ohio General Assembly). The new version of the tax appeal law, enacted in Sub. House Bill 292 (“H.B. 292”), will also allow the Ohio Tax Commissioner, and in some instances county auditors, school districts, and municipal income tax administrators to appeal BTA decisions directly to the Ohio Supreme Court (“Supreme Court”).
The new version of the law takes effect on September 13, 2018. It is slightly different than the pre-Budget Bill law for appealing BTA decisions. Under the new law, the right of direct appeal to the Supreme Court will apply only with respect to BTA decisions issued on matters that were originally determined:
by the Ohio Tax Commissioner (for certain Ohio taxes such as sales and use tax, personal income tax, commercial activity tax, pass-through entity tax, several excise taxes administered by the tax commissioner, public utility personal property taxes, and real estate tax exemption cases, as some examples), and
Appeals from BTA decisions that were initially decided by county Boards of Revision (real estate tax valuation cases, real estate classification cases, CAUV cases, etc.) may not be appealed directly to the Supreme Court under the law that takes effect September 13, 2018.
Background on Budget Bill’s version of tax appeal law
The Budget Bill’s law, which was effective as of September 29, 2017, eliminated the longstanding right to make a direct appeal to the Supreme Court from all decisions of the BTA. Under the pre-Budget Bill law, taxpayers and taxing authorities could appeal all decisions of the BTA to either the Supreme Court or the local Court of Appeals in which the taxpayer resides, at their option. The Budget Bill version of law, during the time of its applicability (September 29, 2017 through September 12, 2018), forces taxpayers and taxing authorities to make appeals to one of the twelve local courts of appeal.
The Budget Bill’s version of law also allows any party to the appeal to file a petition with the Supreme Court to transfer jurisdiction over the appeal to the Supreme Court. The Supreme Court could approve the petition and order that the appeal be taken directly to the Supreme Court if the appeal involves a substantial constitutional question or a question of great general or public interest. However, the Supreme Court was not required to grant the petition of transfer. The potential transfer of jurisdiction is solely at the discretion of the Supreme Court.
H.B. 292 Version of tax appeal law
Beginning on September 13, 2018, the tax appeal law for two categories of cases is returned to how the law existed prior to the Budget Bill changes to the law. Decisions from the BTA on matters that were originally appealed to the BTA from Final Determinations of the Tax Commissioner and from decisions of Municipal Tax Boards will again have a right of direct appeal to the Supreme Court.
Decisions from the BTA on other matters that originated from appeals instituted at county Boards of Revision (real estate valuation cases and CAUV cases, for example) however are not permitted a right of direct appeal under the H.B. 292 version of law. Those matters are also not subject to the “petition to transfer venue” option that was allowed under the Budget Bill version of law. The taxpayer may nonetheless still choose to appeal to one of the twelve local courts of appeal, as was permitted under the law in effect prior to September 29, 2017.
The following chart summarizes the changes, but please note that all facts and circumstances should be reviewed by you and your attorney before taking any action. This chart is merely a guide and should not be relied upon in making decisions on potential appeals of BTA decisions.
*The asterisk denotes that the appellant can choose to file either with the Supreme Court or the local court of appeals.
If you have any questions on taxpayer appeal rights or other state and local tax matters, please contact Tom Zaino, Steve Hall, Rich Farrin, Deb McGraw, Adam Garn, or any other ZHF professional.