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Hillenmeyer v. Cleveland Bd. of Review

Supreme Court of Ohio

January 14, 2015, Submitted; April 30, 2015, Decided

No. 2014-0235


 [***1167]  [*166] Lanzinger, J.


 [**P1]  Appellant, Hunter T. Hillenmeyer, a former linebacker for the Chicago Bears of the National Football League ("NFL"), challenges the method by which Cleveland's municipal income tax was imposed on his earnings during tax years 2004, 2005, and 2006. In each of those seasons, the Bears played one game in Cleveland, for which Hillenmeyer was present in Cleveland two days. And for each of those years, the Bears withheld and then paid the municipal tax from his compensation according to Cleveland's allocation method known as "games played," under which the taxable portion of a professional athlete's [***1168]  income is based on the number of games the athlete played in Cleveland in relation to the total number of games played that year.

 [**P2]  As a nonresident of Cleveland, Hillenmeyer asserts that Cleveland has adopted an unlawful method of computing the amount of his compensation that is subject to its city income tax. The games-played method, he argues, dramatically overstates his Cleveland income, because his [****3]  compensation as an NFL player includes earnings not only for the games he played, but also for the training, practices, strategy sessions, and promotional activities he engaged in.

 [**P3]  On December 19, 2007, Hillenmeyer filed timely applications for refunds of income taxes paid to Cleveland for tax years 2004 through 2006. He appealed the denial of his applications for tax refunds to the city of Cleveland Board of Review, the Board of Tax Appeals ("BTA"), and now this court. The issues outstanding

 [**P4]  Both constitutional and nonconstitutional challenges are levied against the municipal tax: that former R.C. 718.011(B), Am.Sub.S.B. No. 287, 148 Ohio Laws, Part V, 11536,1 the "occasional entrants" statute, violates both the Ohio Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (proposition of law No. 4); that Cleveland's method of income-tax allocation is contrary to former R.C. 718.01(H), 2007 Am.Sub.H.B. No. 24, and former R.C. 718.03, Am.Sub.H.B. No. 95, 150 Ohio [*167]  Laws, Part I, 396, this court's decision in Hume v. Limbach, 61 Ohio St.3d 387, 575 N.E.2d 150 (1991), and Cleveland Codified Ordinances 191.0501(b)(1) (proposition of law No. 1); that the city's method of allocation violates the Due Process Clause of the United States Constitution (proposition of law No. 2); and that it violates the Commerce Clause of the United States Constitution (proposition of law No. 3).

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144 Ohio St. 3d 165 *; 2015-Ohio-1623 **; 41 N.E.3d 1164 ***; 2015 Ohio LEXIS 1166 ****


Subsequent History: Reconsideration denied by Hillenmeyer v. Cleveland Bd. of Rev, 143 Ohio St. 3d 1407, 2015-Ohio-2747, 2015 Ohio LEXIS 1796, 34 N.E.3d 134 (2015)

On remand at, Transferred by Hillenmeyer v. City of Cleveland Mun. Bd. of Review, 2015 Ohio Tax LEXIS 3100 (Ohio B.T.A., July 20, 2015)

Stay granted by Hillenmeyer v. Cleveland Bd. of Review, 143 Ohio St. 3d 1462, 2015-Ohio-3733, 2015 Ohio LEXIS 2409, 37 N.E.3d 1248 (2015)

US Supreme Court certiorari denied by City of Cleveland Bd. of Review v. Hillenmeyer, 136 S. Ct. 491, 193 L. Ed. 2d 352, 2015 U.S. LEXIS 7109 (U.S., 2015)

On remand at, Remanded by Hillenmeyer v. City of Cleveland Mun. Bd. of Review, 2016 Ohio Tax LEXIS 1692 (Ohio B.T.A., June 29, 2016)

Prior History:  [****1] APPEAL from the Board of Tax Appeals, No. 2009-3688.

Hillenmeyer v. Cleveland Bd. of Review, 2014 Ohio Tax LEXIS 206 (Ohio B.T.A., Jan. 14, 2014)

Disposition: Judgment reversed and cause remanded.


player, nonresident, games-played, athletes, municipal, Ordinances, season, preseason, taxation, refunds, entertainers, training, apportioned, salary, duty-days, football, bonuses, roster

Constitutional Law, Fundamental Rights, Procedural Due Process, Scope of Protection, Governments, Local Governments, Finance, Tax Law, Income Taxes, Individuals, Estates & Trusts, Imposition of Tax, Home Rule, Administrative Boards, State & Local Taxes, Administration & Procedure, Judicial Review, Equal Protection, Judicial Review, Standards of Review, Nature & Scope of Protection, General Overview, State & Territorial Governments, Legislatures, Substantive Due Process, Scope, Commerce Clause, Interstate Commerce, Tests