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Daily Court Reporter - News Christian school appeal continues despite effort by U.A., school board to dismiss

 

Christian school appeal continues despite effort by U.A., school board to dismiss

KEITH ARNOLD, Daily Reporter Staff Writer

The state high court recently delivered a setback to the city of Upper Arlington, which had sought to dismiss a Christian school's appeal of the tax commissioner's denial of a tax exempt status claim on multiple city parcels.

The Ohio Supreme Court determined that the legal maneuver employed by the Columbus suburb and its school board in Tree of Life Christian Ministries LLC's appeal of the Franklin County Board of Tax Appeals decision to deny the claim for tax-exempt status was misplaced.

Upper Arlington's motion to dismiss was based on an argument that Tree of Life failed to perfect the appeal by initiating service of notice of appeal within the required period, according to case summary.

On that basis, the city argued the dismissal should be granted for a lack of jurisdiction.

"As support for its motion to dismiss, Upper Arlington points to the requirement in RC 5717.04 that the "notice of the appeal shall be served upon all appellees by certified mail" and to case law from this court that addresses the failure of that service," the court wrote per curiam. "In Olympic Steel Inc. v. Cuyahoga Cty. Bd. of Revision, 110 Ohio St.3d 1242, 2006-Ohio-4091, 852 N.E.2d 178, we held that a failure to join the tax commissioner and serve the notice of appeal on that official, as required by R.C. 5717.04, requires dismissal of the appeal because the service requirement is jurisdictional.

"Not long after we issued the decision in Olympic Steel, we held in Berea City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 111 Ohio St.3d 1219, 2006-Ohio-5601, 857 N.E.2d 145, ¶ 2, that 'the certified-mail service required by R.C. 5717.04 must be initiated within the 30-day period prescribed by RC 5717.04 for the filing of an appeal.'"

The court rejected this argument.

"Olympic Steel and Berea were both real-property-valuation cases, and in that type of case, the tax commissioner is not a party before the boards of revision but, by statute, must be sent a copy of the board of tax appeals' decision and be joined as an appellee and served with a copy of the notice of appeal from the board of tax appeals to the court," justices noted. "In both Olympic Steel and Berea, the tax commissioner had not previously been a party to the case and the appellant had failed to initiate service of the appeal on the tax commissioner within the time required for filing the notice of appeal.

"The present appeal, however, is in a tax-exemption case, and the tax commissioner was already a party in the proceedings."

Justices reasoned that the court has never applied the Berea ruling in a tax-exemption case - only in real-property-valuation cases in which an appellant has failed to join and serve the tax commissioner.

"Moreover, the General Assembly recently amended RC 5717.04 to include the following sentence: 'If the commissioner is not a party to the appeal or application before the board, the supreme court or court of appeals, as applicable, shall not dismiss an appeal of the board's decision because of the failure to make the commissioner an appellee or to serve the notice of appeal to the commissioner as otherwise required under this section,'" the decision continued. "This sentence speaks directly to the situation addressed by the Berea rule and renders it no longer good law."

The high court noted that the city and school board presented no other basis for dismissal.

"Looking solely at the statute, RC 5717.04 does not state a timeline for the certified-mail service of the notice of appeal on the appellees," justices concluded. "And it is not disputed that the notice of appeal was served on Upper Arlington by certified mail.

The case is cited as Upper Arlington v. McClain, Slip Opinion No. 2019-Ohio-1726.

Date Published: June 3, 2019

 

Copyright © 2019 The Daily Reporter - All Rights Reserved

 

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