2017 Ohio 9118
Ohio2017Background
- The Ohio Department of Taxation audited NASCAR and assessed $549,520 for unpaid commercial activity tax for July 1, 2005–Dec. 31, 2010.
- NASCAR petitioned the tax commissioner; the commissioner issued a final determination affirming the assessment on Jan. 5, 2015.
- NASCAR appealed to the Board of Tax Appeals (BTA); the notice of appeal was signed by Michael J. Bowen, a Florida attorney not licensed in Ohio and not admitted pro hac vice at the time.
- The tax commissioner moved to dismiss, arguing Bowen’s unauthorized practice of law meant the BTA lacked jurisdiction.
- The BTA granted the motion and dismissed the appeal as void ab initio; NASCAR appealed to the Ohio Supreme Court.
- The Ohio Supreme Court reversed the BTA, holding Jemo governs and that an authorized agent’s status is a factual question that can invoke BTA jurisdiction even if the agent is not licensed in Ohio; the case was remanded for merits. Justice Fischer dissented.
Issues
| Issue | Plaintiff's Argument (NASCAR) | Defendant's Argument (Tax Commissioner) | Held |
|---|---|---|---|
| Whether filing a BTA notice of appeal by an attorney not licensed in Ohio deprives the BTA of jurisdiction | Any authorized agent may file under R.C. 5717.02; Bowen was NASCAR's authorized agent so jurisdiction was properly invoked (relying on Jemo) | Bowen engaged in unauthorized practice of law by filing; unauthorized practice deprives the BTA of jurisdiction and renders the filing void | The Court held Jemo controls: agent authority is a factual question; Bowen’s filing invoked BTA jurisdiction and dismissal for lack of jurisdiction was error |
| Whether Jemo (a plurality) is persuasive despite being nonbinding and despite subsequent authority on unauthorized practice | Jemo’s reasoning that R.C. 5717.02 places no categorical restriction on who may act for a taxpayer is persuasive and applicable | Jemo is nonbinding plurality and subsequent cases (Sharon Village line) treat unauthorized practice as jurisdictional; Ryan and Misch support that filing appeals can constitute unauthorized practice | The Court found Jemo persuasive and controlling for jurisdictional analysis here; unauthorized-practice cases do not resolve the jurisdictional question before the Court |
Key Cases Cited
- Jemo Assocs., Inc. v. Lindley, 64 Ohio St.2d 365, 415 N.E.2d 292 (1980) (plurality: R.C. 5717.02 imposes no categorical restriction that only officers or attorneys may sign a corporation’s notice of appeal; agent authority is a factual question)
- Sharon Village Ltd. v. Licking Cty. Bd. of Revision, 78 Ohio St.3d 479, 678 N.E.2d 932 (1997) (nonattorneys barred from filing valuation complaints for corporations absent statutory authorization; unauthorized practice can affect jurisdiction)
- Toledo Pub. Schools Bd. of Edn. v. Lucas Cty. Bd. of Revision, 124 Ohio St.3d 490, 924 N.E.2d 345 (2010) (discusses interplay of Jemo and Sharon Village; treats unauthorized-practice/jurisdiction issues cautiously)
- Cleveland Bar Assn. v. Misch, 82 Ohio St.3d 256, 695 N.E.2d 244 (1998) (preparing and filing a BTA notice may constitute the practice of law)
- Ohio State Bar Assn. v. Ryan, 138 Ohio St.3d 67, 3 N.E.3d 194 (2013) (unauthorized practice analysis affirming that certain filings can constitute the practice of law)