Legislation has been introduced that would make some sweeping changes in the operations of the Ohio Board of Tax Appeals (BTA). The bill, House Bill 138, contains a mixture of older and newer proposals and serves as a response to long-running complaints regarding the operation of the BTA. Overall, the proposal would modernize many provisions.
Notices of Appeal
In addition to existing methods of filing,1 the bill authorizes parties to file notices of appeal with the BTA by facsimile or electronic mail. Certain appeals may also be filed through the Ohio Business Gateway. In both cases, the date of the electronic transmission is deemed to be the date of filing.2
Under existing law, notices of appeal to the BTA must also be filed with the various state officials whose actions are the subject of the appeal. The bill amends R.C. 5717.02(B) so that the notice of appeal would only need to be filed with the BTA. New R.C. 5717.02(D) requires the secretary of the BTA to notify the state official whose actions are the subject of the appeal by certified or electronic mail. However, appeals from the decision of a board of revision must still be filed with both the BTA and the board of revision, and appeals from a municipal board of review must still be filed with the BTA, the board of review and the opposing party.
The bill eliminates the requirement that the notice of appeal specify the complained errors. Instead, the notice “shall contain a short and plain statement of the claimed error” showing the appellant is entitled to relief, as well as a demand for the relief to which the appellant is entitled.3 In addition, the notice of appeal may be amended once as a matter of course within 60 days after the appellant receives notice that the statutory transcript has been filed. A notice may also be amended with leave of the BTA or with written consent of each adverse party.
The bill contains a number of procedural changes as well. R.C. 5703.02(D) is amended to authorize the BTA to adopt rules, which shall include a mediation program and a requirement that any statutory transcript involved in an appeal be filed electronically with the BTA. In addition, R.C. 5717.02(D) is amended to require the BTA to institute a case management system that includes the conduct of discovery.
New R.C. 5703.021 establishes a small claims division for the BTA. Similar to prior proposals, it generally applies to cases involving the value of residential real property, or where the amount in controversy does not exceed $10,000 exclusive of interest and penalty. The BTA may by rule, modify this threshold amount. Other cases may be assigned to the small claims division upon the written consent of all the parties. In addition, cases may be assigned to the regular docket when requested by a party or where the case presents a constitutional issue.
Decisions rendered by the small claims division are conclusive to the parties and may not be appealed. However, they also contain no value as precedent in other cases. The involvement of attorneys in the small claims division is permitted, but is not required.
Upon the filing of the statutory transcript, the secretary of the BTA is required to give notice to all parties by certified mail or electronic mail.
In a new provision, the BTA is empowered to rule on motions (including motions in limine) and to grant summary judgment if no issue of material fact exists and the moving party, or the party designated by the BTA, is entitled to judgment as a matter of law.4 In addition, a party may request that the party hearing an appeal make findings of fact and conclusions of law before the BTA issues a decision in a case. Copies of the findings or conclusions must be sent to the parties.
Finally, the party conducting a hearing must determine the credibility of each witness. If an examiner conducting a hearing determines the credibility of a witness, the BTA may not change that determination absent clear and convincing evidence that the determination is incorrect.
Uncodified Section 4 of the bill provides that, if enacted, the changes made by the bill will take effect January 1, 2015.
Many of the provisions relating to the operation of the BTA have not been reviewed or changed in decades. Discussions about updating those provisions have occurred among interested parties for several years. However, only in the past year has legislation been introduced that would address some of these issues. H.B. 138 is the most far-reaching effort to date. Its impact would modernize many of the procedures of the BTA and bring them into closer alignment with procedures in the state’s trial courts.