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 2014 Ohio Tax LEXIS 5061

State of Ohio -- Board of Tax Appeals

October 22, 2014, Entered

CASE NO(S). 2014-1340 (SALES TAX)



Mr. Williamson, Mr. Johrendt, and Mr. Harbarger concur.

The Board of Tax Appeals considers this matter pursuant to a notice of appeal filed by Brian P. Gillan from a final determination of the Tax Commissioner in which six previously issued assessments against the appellant were affirmed. The commissioner found that Mr. Gillan was a responsible party liable under R.C. 5739.33 for the unpaid sales tax of 99 Center, Inc. for the period of June 1, 2004 through March 31, 2005. The matter is submitted to the Board of Tax Appeals upon the notice of appeal and the statutory transcript ("ST.") certified to this board by the Tax Commissioner.

The findings of the Tax Commissioner are presumptively valid. Alcan Aluminum Corp. v. Limbach (1989), 42 Ohio St.3d 121, 537 N.E.2d 1302. It is incumbent upon a taxpayer challenging a decision of the Tax Commissioner to rebut the presumption and establish a clear right to the relief requested. Kern v. Tracy (1995), 72 Ohio St. 3d 347, 650 N.E.2d 428; Ball Corp. v. Limbach (1992), 62 Ohio St.3d 474, 584 N.E.2d 679; [*2]  Belgrade Gardens v. Kosydar (1974), 38 Ohio St.2d 135, 311 N.E.2d 1; Ohio Fast Freight v. Porterfield (1972), 29 Ohio St.2d 69, 278 N.E.2d 361; Natl. Tube v. Glander (1952), 157 Ohio St. 407, 105 N.E.2d 648. The burden is on the taxpayer to present credible evidence to support its claim that an assessment is in error. Kern, supra; May Co. v. Lindley (1982), 1 Ohio St.3d 6, 1 Ohio B. 32, 437 N.E.2d 295; Federated Dep't Stores, Inc., Rike-Kumler Div. v. Lindley (1983), 5 Ohio St. 3d 213, 5 Ohio B. 455, 450 N.E.2d 687. Where no competent and probative evidence is developed and presented to this board by the appellant to show that the Tax Commissioner's findings are incorrect, the Board of Tax Appeals must affirm the Tax Commissioner's findings. Kern, supra; Kroger Co. v. Limbach (1990), 53 Ohio St.3d 245, 560 N.E.2d 192; Alcan Aluminum Corp., supra.

When a corporation fails to make payment of sales tax due the state of Ohio, R.C. 5739.33 imposes personal liability on certain corporate officers and employees deemed "responsible." This liability is derivative in nature and arises from the corporation's primary liability previously found to exist. R.C. 5739.33 provides:

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 2014 Ohio Tax LEXIS 5061 *

BRIAN GILLAN, (et. al.), Appellant(s), vs. JOSEPH W. TESTA, TAX COMMISSIONER OF OHIO, (et. al.), Appellee(s).

Prior History:

Gillan v. Testa, 2014 Ohio Tax LEXIS 3269 (Ohio B.T.A., July 10, 2014)


responsible party, sales tax, notice of appeal, corporate officer