[Cite as Kormanik v. Dept. of Taxation, 2004-Ohio-7288.]
IN THE COURT OF CLAIMS OF OHIO
THEODORE KORMANIK
:
Plaintiff
:
v.
:
CASE NO. 2003-09475-AD
:
MEMORANDUM DECISION
DEPARTMENT OF TAXATION
Defendant
:
: : : : : : : : : : : : : : : : :
{¶ 1} Plaintiff, Theodore Kormanik, operated a retail-business
in Barberton, Ohio known as Kormanik’s Mens Wear.
Due to sparse
business sales, plaintiff directed his accountant to draft a letter
to the Treasure, State of Ohio, requesting Kormanik’s Mens Wear be
placed on a semi-annual sales tax collection schedule.
This letter
was sent to the Treasurer, State of Ohio on April 20, 1987.
Plaintiff stated he then began to remit sales tax from his business
on a semi-annual basis.
{¶ 2} On June 28, 1989, defendant, Department of Taxation,
assessed plaintiff late charges of $500.00 and a $75.00 penalty for
the
delinquent
filing
of
sales
tax
returns
representing
the
periods, January 1988 through May 1988 and July 1988 through
November 1988.
Defendant sent plaintiff notice of this assessment
to plaintiff’s retail business at 344 E. Tuscarawas Avenue in
Barberton, Ohio.
The assessment was not paid and defendant then
certified the unpaid assessment for collection with the Attorney
General, Revenue Recovery Section on January 29, 1990.
Recovery
Section
office
received
payment
in
full
The Revenue
of
the
assessment of $575.00, plus $24.00 interest on June 13, 1990.
tax
{¶ 3} On September 5, 2003, plaintiff filed a complaint in this
court alleging the delinquent tax assessment issued against him by
defendant was improper.
With his complaint, plaintiff submitted a
form document dated June 30, 1990.
The document was issued by
defendant and titled Application For Reimbursement of Additional
Charge For Late Filing of Tax Returns.
Plaintiff asserted he filed
this application for reimbursement of his delinquent tax assessment
with defendant.
However, plaintiff maintained he was unsuccessful
in his attempt at attaining any reimbursement.
Plaintiff did not
include any documents from defendant informing him of the actual
disposition of his application for reimbursement.
Plaintiff did
not submit any evidence to establish he pursued the reimbursement
matter
any
further
past
June
30,
1990,
until
he
filed
this
complaint on September 5, 2003, seeking to recover the total amount
of his tax assessment with penalties, $599.00.
Plaintiff also
submitted the requisite material filing fee.
{¶ 4} Initially, defendant contended plaintiff has failed to
state a claim cognizable in this court.
Furthermore, defendant
asserted plaintiff’s claim was untimely filed pursuant to R.C.
2743.16 (the two-year statute of limitations for filing claims in
this
court).
Defendant
denied
receiving,
“a
petition
for
reassessment or the filing of a refund claim” from plaintiff.
Defendant explained, “[a]t the time of this assessment, the only
method to claim abatement of additional charges and penalties was
through the administrative procedures associated with the petition
for
reassessment.”
Plaintiff
administrative remedies available.
did
not
pursue
any
of
these
Defendant essentially contended
plaintiff had administrative opportunities under R.C. 5739.13 to
dispute his tax assessment and did not pursue the matter by
invoking these procedures.
{¶ 5} Although it appears plaintiff is attempting to prosecute
this action under R.C. 5703.541, the court concludes the instant
claim is barred by the two year statute of limitations expressed in
R.C. 2743.162
Plaintiff’s cause of action accrued more than ten
1
R.C. 5703.54 states:
“5703.54 Action for damages by aggrieved taxpayer.
“(A) A taxpayer aggrieved by an action or omission of an officer or
employee of the department of taxation may bring an action for damages in the
court of claims pursuant to Chapter 2734 of the Revised Code, if all of the
following apply:
“(1) In the action or omission the officer or employee frivolously
disregards a provision of Chapter 5711., 5733., 5739., 5741., or 5747. of the
Revised Code or a rule of the tax commissioner adopted under authority of one
of those chapters;
“(2) The action or omission occurred with respect to an audit or
assessment and the review and collection proceedings connected with the audit
or assessment;
“(3) The officer or employee did not act manifestly outside the scope
of the officer’s or employee’s office or employment and did not act with
malicious purpose, in bad faith, or in a wanton or reckless manner.
“(B) In any action brought under division (A) of this section, upon a
finding of liability on the part of the state, the state shall be liable to
the taxpayer in an amount equal to the sum of the following:
“(1) Compensatory damages sustained by the taxpayer as a result of the
action or omission by the department’s officer or employee;
“(2) Reasonable costs of litigation and attorneys fees sustained by the
taxpayer.
“(C) In the awarding of damages under division (B) of this section, the
court shall take into account the negligent actions or omissions, if any, on
the part of the taxpayer that contributed to the damages, but shall not be
bound by the provisions of sections 2315.32 to 2315.36 of the Revised Code.
“(D) Whenever it appears to the court that a taxpayer’s conduct in the
proceedings brought under division (A) of this section is frivolous, the court
may impose a penalty against the taxpayer in an amount not to exceed ten
thousand dollars which shall be paid to the general revenue fund of the state.
“(E)(1) Division (A) of this section does not apply to advisory opinions
or other informational functions of an officer or employee of the department.
“(2) Division (A) of this section does not authorize a taxpayer to
bring an action for damages based on an action or omission of a county auditor
or an employee of a county auditor.
“(F) As used in this section, ‘frivolous’ means that the conduct of the
commissioner, or of the taxpayer or the taxpayer’s counsel of record satisfies
either of the following:
“(1) It obviously serves merely to harass or maliciously injure the
state or its employees or officers if referring to the conduct of a taxpayer,
or to harass or maliciously injure the taxpayer if referring to the conduct of
the tax commissioner;
“(2) It is not warranted under existing law and cannot be supported by
a good faith argument for an extension, modification, or reversal of exiting
law.”
2
R.C. 2743.16(A) states:
“2743.16 Statute of limitations; claimant must seek to have claim
compromised or satisfied by state’s insurance.
years
prior
to
the
filing
of
his
complaint
in
this
court.
Consequently, plaintiff’s claim is dismissed as untimely filed.
IN THE COURT OF CLAIMS OF OHIO
THEODORE KORMANIK
:
Plaintiff
:
v.
:
CASE NO. 2003-09475-AD
:
ENTRY OF ADMINISTRATIVE
DETERMINATION
DEPARTMENT OF TAXATION
Defendant
:
: : : : : : : : : : : : : : : : :
Having considered all the evidence in the claim file and, for
the reasons set forth in the memorandum decision filed concurrently
herewith, judgment is rendered in favor of defendant.
are assessed against plaintiff.
Court costs
The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the
journal.
________________________________
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Theodore Kormanik
344 E. Tuscarawas Avenue
Plaintiff, Pro se
“(A) Subject to division (B) of this section, civil actions against the
state permitted by sections 2743.01 to 2743.20 of the Revised Code shall be
commenced no later than two years after the date of accrual of the cause of
action or within any shorter period that is applicable to similar suits
between private parties.”
Barberton, Ohio
44203
Thomas M. Zaino
Deputy Tax Commissioner
30 E. Broad Street 22nd Floor
Columbus, Ohio 43215
DRB/RDK/laa
11/3
Filed 12/1/04
Sent to S.C. reporter 1/10/05
For Defendant
