[ Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Colonial, Inc. v. McClain , Slip Opinion No. 202 2
- Ohio
- 1 1 4 9 .]

NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215 , of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 202 2
- O HIO - 1 1 4 9 C OLONIAL , I NC . , A PPELL ANT , v . M C C LAIN , T AX C OMMR . , A PPELLEE . [ Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Colonial, Inc. v. McClain , Slip Opinion No. 202 2
- Ohio
- 1 1 4 9 .] Taxation

—

R.C. 5739.101

—

Resort

- area taxes

—

A municipal corporation or township is not required to renew it s designation as a resort area after each decennial census for it to collect a previously enacted resort

- area tax under R.C. 5739.101

—

Decision affirmed. (No. 20 2 1

- 0 373

— Submitted December 7 , 2021

— Decided April 7 , 20 2 2 .) A PPEAL from the Board of Tax Appeal s , No . 20 20

- 94

.

__________________ Per Curiam. {¶ 1} Appellant, C olonial, Inc. , 1 which conducts business in the village of Put

- i n
- Bay, Ohio, challenges the decision of the Board of Tax Appeals (“BTA”) upholding appellee T ax C ommissioner Jeffrey McClain ’s denial of its application

1. The parties ’ stipulat ions and the tax commissioner’s final determination identify appellant as “The Colonial, Inc.” However, appellant identified itself as “Colonial, Inc.,” in its notice of appeal to this court

.S UPREME C OURT OF O HIO

2 for a tax refund . Colonial seeks to recover a locally imposed resort

- area gross
receipts excise tax (the “resort

- area tax”) , whic h Put

- in

- Bay originally enacted in 1995

. Colonial argues that under R.C. 5739.101, the village must reenact the resort

area tax after each decennial census because the village’s qualification to impose the tax depends on the result of each census. Becaus e the village did not reenact its
resort

- area tax after the 2010 census until July 2016, Colonial contends that it is entitled to a refund of $269,431.65 in resort

- area taxes that it paid from January 1, 2011 , through June 3 0, 2016. The tax commissioner and the BTA rejected Colonial’s interpretation of R.C. 5739.101 and denied the refund claim

. We affirm

. I. BACKGROUND {¶ 2} This case was submitted to the BTA on the following stipulated facts. T he village of Put

- in

- Bay enacted its resort

- area tax in 1995 by passing O rdinance 648

- 95 ; the ordinance declared the village to be a resort area under R.C. 5739.101 and impose d a 0.5 percent excise tax on the gross receipts of businesses subject to the tax. {¶ 3} Put

- in

- Bay passed further legislation regarding the tax on two occasions : (1) in 1999, through Ordinance 727

- 99, the village raised the tax rate from 0.5 percent to 1 percent and (2) in 2001, through Ordinance 796

- 01, the village raised the rate to 1.5 percent. N o further resort

- area tax legislation was enacted by the village until July 2016, at which time the village passed Ordinance 1138

- 16, renewing the resort

- area tax at the rate of 1.5 percent. The parties also stipulate that “ [t]he Village of Put

- in

- Bay meets the criteria set forth in R.C. 5739.101(A) to qualify as a ‘resort area.’ ” {¶ 4} Colonial filed its claim for a refund with the tax commissioner in February 2018, arguing that it did not owe the taxes it had paid from January 1, 2011 , t hrough June 30, 2016 , because Put

- in

- Bay did not reenact its resort

- area tax legislation after the 2010 census until the 2016 passage of Ordinance 1138

- 16. TheJanuary Term, 2022

3 tax commissioner denied the claim , find ing that R.C. 5739.101(D) “specifically states when the levy o f the tax shall take effect” but that it contains “no discussion of an end date or a requirement to reenact the tax levy every ten years

. ” The tax commissioner further found that “the language [of R.C. 5739.101(A)] was written to create a benchmark for th e initial declaration and enactment of a tax levy” (underlining sic.), and he conclud ed that Colonial’s interpretation of the statut e would lead to the absurd result of a lapse in the operation of the tax because of (1) the timing of census results and (2) the statutory 60

- day period between the enactment of the local tax and it s effect ive date

. See also R.C. 5739.101( D ). {¶ 5} In addition to addressing the merits of Colonial’s argument, the tax commissioner found that Colonia l’s claim for a refund of any resort

- area tax payments made prior to February 17, 2014 , was barred by the four

- year statute of limitations under R.C. 5739.104

. {¶ 6} Colonial appealed to the BTA. Focusing on the phrase “most recent decennial census” in R.C. 5739.101 (A) , the BTA described the issue as whether that phrase “ refers to the 1990 census or the 2010 census when applied to the facts of this case.” (Emphasis sic.) Colonial, Inc. v. McClain , BTA No. 2020

- 94, 2021 WL 1093673 , *1 (Mar. 15, 2021). The B TA concluded that the statutory language referred to the 1990 census, which was the most recent census at the time the village enacted its resort

- area tax, and it affirmed the tax commissioner’s denial of the claim for a refund. Id. at *7

. The BTA also a ffirmed the tax commissioner’s ruling on the statute of limitations

. Id

. at *6. {¶ 7} Finally, the BTA raised an additional issue that was not addressed by the parties . T he board faulted Colonial for failing to prov e that it had not billed its customers for the tax amounts under R.C. 5739.101(F) , and it found that failure to be “ an additional barrier to proving its refund claim.” BTA No. 2020

- 94, 2021 WL 1093673 , at *6. The tax commissioner noted his disagree ment with this ruling in his m erit brief to this court

.S UPREME C OURT OF O HIO

4 II. THE RESORT
- AREA TAX {¶ 8} T he General Assembly enacted the resort

- area tax in 1993

. Am.Sub.H.B. No. 327, 145 Ohio Laws, Part III, 5409, 5410

- 5411

. The resort

- area tax replaced an earlier “island tax” that this court had held to be unconstitutional

. See Put

- In

- Bay Island Taxing Dist. Auth. v . Colonial, Inc. , 65 Ohio St.3d 449, 605 N.E.2d 21 (1992 ). Under the current resort

- area tax, a municipality or township may declare itself to be a resort area and then impose the res ort

- area tax as a stated percentage of gross business receipts only if the following three criteria are satisfied:

(1) According to statistics published by the federal government based on data compiled during the most recent decennial census of the Unite d States, at least sixty

- two per cent of total housing units in the municipal corporation or township are classified as “for seasonal, recreational, or occasional use ”; (2) Entertainment and recreation facilities are provided within the municipal corporat ion or township that are primarily intended to provide seasonal leisure time activities for persons other than permanent residents of the municipal corporation or township ; (3) The municipal corporation or township experiences seasonal peaks of employment and demand for government services as a direct result of the seasonal population increase

.
R.C. 5739.101(A). If these criteria are met , a municipal corporation or township

“ may levy a n excise tax on vendors for the privilege of making sales in, or transporting persons or property to or from, the municipality or township.” Kelleys Island Caddy Shack, Inc. v. Zaino , 96 Ohio St.3d 375, 2002

- Ohio

- 4930, 775 N.E.2d 489, ¶ 1 ; see also R.C. 5 739.101(B)

.January Term, 2022

5 {¶ 9} R.C. 5739.101 through 5739.104 address administrative aspects of the
resort

- area tax, including (1) the filing of returns with the tax commissioner and the requirement that the state distribute the tax proceeds to the appropriate political subd ivisions , R.C. 5739.102 , and (2) the process for issuing refunds of tax es that

were paid illegally or erroneously or that were paid based on an illegal or erroneous
assessment , R.C. 5739.104

. III. ANALYSIS {¶ 10} “ In reviewing a decision of the BTA, we determine whether the decision is reasonable and lawful, deferring to factual determinations of the BTA but correcting legal errors. ” N.A.T. Transp., Inc. v. McClain , 1 65 Ohio St.3d 2 50 , 20 21

- Ohio

- 1374 , 178 N.E.3d 454 , ¶ 11

. Before turning to Colonial’s primary argument in this appeal, we consider the status of two additional issues that Colonial raise s in its merit brief

. First, Colonial challenge s the BTA’s ruling that the statute of limitations barred Colonial’s claim for a refund beyond the four

- year period immediately preceding its 2018 refund application

. Because Colonial’s notice of appeal failed to challenge the BTA’s ruling on this issue, we lack jurisdiction to grant Colonial relief from this aspect of the BTA’s decision. See Yanega v. Cuyahoga Cty. Bd. of Revision , 156 Ohio St.3d 203, 2018

- Ohio

- 5208, 124 N.E.3d 806. {¶ 11} Second, the BTA conclud ed that Colonial’s failure to prove that it did not bill its customers for amounts of resort

- area tax constituted “an additional barrier” to its r efund claim

. BTA No. 2020

- 94, 2021 WL 1093673 , at *6. The BTA took the position that billing the customers under R.C. 5739.101(F) would mean that Colonial itself did not (in a legal sense) “pay” the tax for purposes of claiming a refund. Both Colonial a nd the tax commissioner dis agree with this ruling by the BTA

. {¶ 12} Notably, the statute providing for refunds of resort

- area tax, R.C. 5739.104, does not predicate a taxpayer’s entitlement to a refund on proof that theS UPREME C OURT OF O HIO

6 taxpayer did not charge to its customers t he tax that it paid to the state. Compare R.C. 5739.07(A) ( requiring the tax commissioner to refund sales tax to a vendor only if the vendor has refunded to the consumer the sales tax collected from that consumer or if the vendor billed the consumer for the tax but the consumer did not pay the tax). Accordingly, whatever i ts merit may be, the BTA’s determination of an “additional barrier” to Colonial’s refund claim does not involve a jurisdictional threshold to the consideration of Colonial’s refund application. See Novita Industries, L.L.C. v. Lorain Cty. Bd. of Revision, 153 Ohio St.3d 57, 2018

- Ohio

2023, 100 N.E.3d 387, ¶ 18 (“ We have held that a procedural error or omission ordinarily does not affect jurisdiction in a tax proceeding unless the error or omission constitutes a violation of a requirement set forth in the a pplicable
statutes ”). G iven that the tax commissioner disagrees with the BTA ’ s ruling on this point , we are free to address the primary i nterpretative issue and dispose of the appeal on that basis. And b ecause we resolve the main issue against Colonial, the BTA’s determination of an “additional barrier” to Colonial’s application for a refund is moot. {¶ 13} We now turn to the primary issue before us. In its proposition of law, Colonial contends that “ if a local ity has not declared itself to be a ‘resort area’ based on the most recent decennial census relative to the tax

- year at issue, no resort tax is owed.” We disagree. {¶ 14} In plain terms, R.C. 5739.101(A) states that “[t] he legislative authority of a municipal co rporation, by ordinance or resolution * * * may declare the municipal corporation * * * to be a resort area for the purposes of this section ,” if certain criteria are met, and R.C. 5739.101(B) states that “ the legislative authority of a municipal corporati on or township, in its ordinance or resolution declaring itself a resort area under this section, may levy a tax on the privilege of engaging in the business of * * * [making sales in the political subdivision or providing intrastate transportation of pers ons or property to or from the politicalJanuary Term, 2022

7 subdivision].” Notably absent from these provisions and from the other rel evant Revised Code sections is any language indicating that a previously enacted resort

area tax automatic ally “ sunset s” (i.e., ceases to be operative ) in light of a new decennial census . Nor do the relevant statute s state that the declaration of resort

area status and the imposition of a resort

- area tax must be renewed at ten

- year intervals

. {¶ 15} Colonial contends that the policy of tying the tax to resort

- area status under the census militates in favor of a re newed declaration of that status after each

census. A lthough it might have been reasonable for the General Assembly to take such an approach, the statute as enacted does not im pose that requirement , and the
statute ’s text controls. In the past, w e have declined to fashion deadlines not explicitly stated in a statute based on our view of the policy considerations. See Life Path Partners, Ltd. v. Cuyahoga Cty. Bd. of Revision , 152 Ohio St.3d 238, 2018

- Ohio

- 230, 94 N.E.3d 565 , ¶ 10 (reversing the di smissal of a “continuing complaint” for lack of timeliness under R.C. 5715.19(D) because “nothing in that provision authorizes the [board of revision] to dismiss a continuing complaint for lack of timeliness,” and stating that “[i]f the lack of deadline is a problem, it’s up to the General Assembly to make an easy fix”). See also State ex rel. Nimberger v. Bushnell , 95 Ohio St. 203, 116 N.E. 464 (1917), paragraph four of the syllabus (whe n the clear language of a statute “works an inconvenience or accompli shes a result not anticipated or desired,” the “consequence can be avoided only by a change of the law itself, which must be made by legislative enactment and not by judicial construction”). By the same logic , we reject Colonial’s argument here

. {¶ 16} We find n o ambiguity in the statutory language at issue and, apply ing the statute to the facts of this case , we conclude that t he BTA correctly affirmed the tax commissioner’s denial of Colonial’s application for refund

. IV. C ONCLUSION {¶ 17} For the foregoing reasons, we affirm the decision of the BTA

.S UPREME C OURT OF O HIO

8 Decision affirmed. O’C ONNOR , C.J., and K ENNEDY , F ISCHER , D E W INE , D ONNELLY , S TEWART , and B RUNNER , JJ. , concur.

_________________ Mayle , L.L.C. , Andrew R . Ma yle , Ronald J. Mayle, and Benjamin G. Padanilam, f

or appellant. Dave Yost , Attorney General, and Daniel G. Kim , Assistant Attorney General, for appellee.

_________________