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NASCAR Holdings, Inc. v. Testa, Tax Commr.

Supreme Court of Ohio

December 21, 2017

NASCAR Holdings, Inc., Appellant,
v.
Testa, Tax Commr., Appellee.

          Submitted August 22, 2017

         Appeal from the Board of Tax Appeals, No. 2015-263.

          Frost Brown Todd, L.L.C., Matthew C. Blickensderfer, Jeremy A. Hayden, and Mark F. Sommer, for appellant.

          Michael DeWine, Attorney General, and Daniel W. Fausey and Raina Nahra Boulos, Assistant Attorneys General, for appellee.

          PER CURIAM.

         I. Summary

         {¶ 1} Appellant, NASCAR Holdings, Inc. ("NASCAR"), challenges the decision of the Board of Tax Appeals ("BTA") dismissing NASCAR's notice of appeal solely because it was filed by an attorney who was not licensed to practice law in Ohio. For the reasons that follow, we reverse the BTA's decision and remand for further proceedings.

         II. Facts and Procedural Background

         {¶ 2} The Department of Taxation conducted an audit and found that NASCAR had failed to file commercial-activity tax ("CAT") returns and to pay the CAT for more than five years, from July 1, 2005, to December 31, 2010. The department issued an assessment against NASCAR for $549, 520.

         {¶ 3} NASCAR filed a petition for reassessment with appellee, the tax commissioner. On January 5, 2015, the commissioner issued his final determination, rejecting NASCAR's arguments and affirming the assessment.

         {¶ 4} NASCAR then filed a notice of appeal to the Board of Tax Appeals, challenging the tax commissioner's final determination. The notice of appeal was signed by "Michael J. Bowen, POA." Bowen is a Florida-based attorney who is not licensed to practice law in Ohio.

         {¶ 5} On May 8, 2015, the tax commissioner filed a motion to dismiss. The commissioner argued that because Bowen had engaged in the unauthorized practice of law when he filed the notice of appeal on NASCAR's behalf, the BTA lacked jurisdiction over the appeal.

         {¶ 6} NASCAR conceded that Bowen was neither admitted to the Ohio bar nor registered for pro hac vice status when he filed the notice of appeal. [1] NASCAR, however, asserted that Bowen's lack of authority to practice law in Ohio was irrelevant to whether his filing of the notice of appeal properly invoked the BTA's jurisdiction.

         {¶ 7} On June 15, 2015, the BTA granted the motion and dismissed the appeal. The BTA found that Bowen had engaged in the unauthorized practice of law when he prepared and filed the notice of appeal with the BTA on NASCAR's behalf. The BTA further held that this rendered the notice of appeal void ab initio, thereby depriving the board of jurisdiction over NASCAR's appeal. NASCAR appealed to this court.

         III. ...


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