SOYKO KULCHYSTSKY, L.L.C., N.K.A. HOUSE UNDER THE GREEN BOTTLE, L.L.C., APPELLANT, v. CUYAHOGA COUNTY BOARD OF REVISION ET AL., APPELLEES.
No. 2013-0547
Supreme Court of Ohio
October 14, 2014
2014-Ohio-4511 | 43
Submitted May 27, 2014
Bieser, Greer & Landis, L.L.P., and David P. Williamson, for respondent.
Per Curiam.
{1} In this real-property-valuation case, the taxpayer, Soyko Kulchystsky, L.L.C., now known as House Under the Green Bottle, L.L.C. (“Soyko“), filed a complaint for tax year 2011 after it had previously filed a complaint for tax year 2010. Those two tax years were part of the same “interim period” between the 2009 update and the 2012 reappraisal in Cuyahoga County.
{2} Soyko alleges that two of the exceptions apply:
{3} Because the analysis of this appeal calls for a careful consideration of the sequence and timing of events below, the best approach to reciting the factual background is to set forth a chronology. The record in this appeal is sparse, and in determining the factual background, we rely on the facts recited in the BTA‘s decisions that are uncontested here, as well as dispositional orders included as exhibits to Soyko‘s brief before the BTA and in the appendix to its brief before this court.
{4} February 4, 2011. The property at issue, an 18-unit apartment building, sold for $95,000.
{5} Sometime thereafter. Soyko filed a complaint for tax year 2010, asking for a reduction from the auditor‘s value of $234,000 to $110,000 (apparently based on the $95,000 sale price and $15,000 in improvements). That complaint also disclosed the February 4, 2011 sale for $95,000. Later in the proceedings, Soyko asserted that the value should be equal to the $95,000 sale price.
{6} February 24, 2012. The Cuyahoga County Board of Revision (“BOR“) held its first hearing on the complaint for tax year 2010.
{7} February 28, 2012. The BOR dismissed Soyko‘s complaint for tax year 2010 on the grounds that the filing of the complaint involved the unauthorized practice of law, see Sharon Village Ltd. v. Licking Cty. Bd. of Revision, 78 Ohio St.3d 479, 678 N.E.2d 932 (1997). Soyko later appealed the dismissal to the BTA.
{8} March 19, 2012. Soyko initiated the present case by filing a complaint challenging the valuation for tax year 2011, once again urging that the February 2011 sale price be adopted as the property value. Soyko explained in a motion before the BTA that it filed this complaint “in an abundance of caution,” given the dismissal of the tax-year-2010 complaint by the BOR. When Soyko filed this complaint, there had not yet been a ruling on the merits of the tax-year-2010 complaint because the tax-year-2010 case had been dismissed, and Soyko did not appeal from that dismissal until March 26, 2012.
{9} The complaint alleged two reasons why it was permitted as a second filing within the same three-year period. First, the tax-year-2010 complaint was dismissed because the filing amounted to the unauthorized practice of law, so the second filing was an allowed refiling under
{10} May 29, 2012. The BTA issued its decision reversing the BOR‘s dismissal of Soyko‘s tax-year-2010 complaint. BTA No. 2012-K-953, 2012 WL 2119861 (May 29, 2012).
{12} July 27, 2012. The BOR issued its merit decision for tax year 2010: it ordered no change in the valuation of the property, rejecting the $95,000 sale price from February 2011.
{13} December 28, 2012. The BOR dismissed Soyko‘s tax-year-2011 complaint as a second-filed complaint within the interim period.
{14} The BTA‘s proceedings below. On January 18, 2013, Soyko appealed the dismissal of the tax-year-2011 complaint to the BTA. On March 7, 2013, the BTA issued its decision affirming the dismissal of Soyko‘s tax-year-2011 complaint. Then, on April 5, 2013, Soyko appealed the BTA‘s March 7, 2013 ruling to this court. This is the appeal presently before us.
{15} The BTA‘s decision in the tax-year-2010 case. On January 15, 2014, the BTA issued its decision on the merits in the tax-year-2010 case. The BTA adopted the $95,000 sale price as the value of the property for tax year 2010, but specifically refrained from ruling on tax year 2011 because of the pendency of the present appeal. BTA No. 2012-2724, 2014 WL 351139 (Jan. 15, 2014). Soyko later submitted this decision as supplemental authority in the present appeal.
THE BTA‘S DECISION IN THIS CASE
{16} As indicated above, the BTA issued its decision for the 2011 tax year on March 7, 2013. The BTA noted the general prohibition of a second filing during the interim period pursuant to
{17} First, the BTA addressed the contention that
{18} Second, the BTA addressed Soyko‘s argument that the tax-year-2011 complaint was allowed under
{19} First, the BTA reasoned that if the BOR had determined that the sale was not at arm‘s length, and therefore had declined to rely on the sale price, then the sale price had been “taken into consideration” for the prior year and the complaint for the subsequent year would be barred. BTA No. 2013-L-251, 2013
BECAUSE AT THE TIME THE TAX-YEAR-2011 COMPLAINT WAS FILED THE SALE PRICE HAD NOT BEEN “TAKEN INTO CONSIDERATION,” THE TAX-YEAR-2011 COMPLAINT WAS VALID PER R.C. 5715.19(A)(2)(a)
{20}
{21} This court has held that a jurisdictional dismissal of the complaint for the earlier year does not lift the prohibition: the earlier complaint has been “filed,” even if it is subsequently dismissed. See Elkem Metals Co., Ltd. Partnership v. Washington Cty. Bd. of Revision, 81 Ohio St.3d 683, 686-687, 693 N.E.2d 276 (1998). In this case, the tax-year-2010 complaint was first dismissed by the BOR, then reinstated by the BTA, then decided on the merits by the BOR and the BTA.
{22}
(a) The property was sold in an arm‘s length transaction, as described in
section 5713.03 of the Revised Code .
{23} Thus, there are three elements to the exception in
{24} (1) The second-filed complaint must allege that the property value should be changed on account of the property‘s having been sold in an arm‘s-length transaction;
{25} (2) The sale must have occurred after the tax-lien date for the tax year for which the prior complaint was filed; and
{26} (3) The sale must not have been “taken into consideration with respect to the prior complaint.”
{27} Soyko‘s tax-year-2011 complaint plainly satisfies the first two of the three elements: the complaint alleges the February 2011 sale as the basis for a change in valuation, and the February 2011 sale took place after the tax-lien date for tax year 2010, which was January 1, 2010. As for the third element, the BTA determined that the (A)(2)(a) exception did not apply, because the BOR did take into consideration the February 2011 sale—it did so in its July 27, 2012 determination of property value, after the BTA itself had reversed the BOR‘s original dismissal and remanded for a merit review.
{28} Soyko faults the BTA for relying on the transcript in the appeal from the BOR‘s merit decision for tax year 2010. According to Soyko, the BTA should have confined itself to looking at the transcript in the first BTA appeal, which addressed the BOR‘s dismissal for unauthorized practice of law, but which did not address the merits. In essence, this argument relies on pure chronology: the BTA erred by looking at what the BOR did after the tax-year-2011 complaint was filed.
{29} Properly formulated, the crux of the matter is whether jurisdiction over the tax-year-2011 complaint should be determined as of the time the complaint was filed, or instead be determined in light of the entire course of proceedings on the earlier complaint—even events that occurred after the tax-year-2011 complaint was filed.1
{30} We hold that the applicability of
{31} First, determining jurisdiction at the time of filing most fully comports with the language of
{32} Thus, in the present case, Soyko would, on March 19, 2012, look at the fact that the tax-year-2010 complaint had been dismissed and determine that the exception in
{33} The second reason for using the date of filing as the point of reference is that doing so aids administrative efficiency. Under the BTA‘s decision, later events divest the boards of revision of jurisdiction on a retroactive basis: specifically, the July 2012 decision of the BOR, by taking the February 2011 sale into consideration, retroactively deprived the BOR of jurisdiction over the tax-year-2011 complaint. While the compressed timeline of the present case does not present much problem, in some cases, months or years could pass before jurisdiction could be ascertained. In the meantime, the later-filed complaint would either be held in abeyance, or proceedings might be conducted that would later be retroactively invalidated. Much better is the rule by which jurisdiction is determinable, once and for all, at the outset.
{34} Third, determining jurisdiction as of the time of filing is consistent with the statutorily prescribed schedule for deciding board-of-revision cases. Namely,
{35} In its brief, appellee Cleveland Municipal School District Board of Education relies on Akron Centre Plaza, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054, for the proposition that when the sale at issue has been found, with respect to a prior complaint, not to have been at arm‘s length, “the complainant
{36} When Soyko filed the tax-year-2011 complaint on March 19, 2012, the BOR had not yet addressed the merits of the tax-year-2010 complaint and therefore had not yet “taken into consideration” the sale in the context of the tax-year-2010 complaint. Therefore,
THE ISSUE OF EXCEPTION PER R.C. 5715.19(A)(3) Is Moot
{37}
{38} The BTA took a contrary view, consistent with its previous decisions. Quoting an earlier case, the BTA stated that “’
{39} We find this to be an intricate issue that it is neither necessary nor prudent for us to decide in this appeal. For one thing, the tax tribunals have definitively exercised their jurisdiction in determining value for tax year 2010, so
CONCLUSION
{40} For the foregoing reasons, we hold that the filing of Soyko‘s tax-year-2011 complaint came within the exception in
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
O‘DONNELL, J., concurs in judgment only and would hold that the tax complaint for 2010 is not at issue in this appeal.
Karen H. Bauernschmidt Co., L.P.A., Karen H. Bauernschmidt, and Stephen M. Nowak, for appellant.
Brindza, McIntyre & Seed, L.L.P., David H. Seed, and Jennifer A. Antoon, for appellee Cleveland Municipal School District Board of Education.