[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Mason Cos., Inc. v. Testa, Slip Opinion No. 2016-Ohio-7768.] 

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. 

SLIP OPINION NO. 2016-OHIO-7768

MASON COMPANIES, INC., APPELLANT AND CROSS-APPELLEE, v. TESTA, TAX 

COMMR., APPELLEE AND CROSS-APPELLANT. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Mason Cos., Inc. v. Testa, Slip Opinion No. 2016-Ohio-7768.] 

Commercial-activity tax—Commerce Clause—Physical presence of an interstate 

business within Ohio is not a necessary condition for imposing the 

obligations of the commercial-activity tax. 

(No. 2015-0794—Submitted May 3, 2016—Decided November 17, 2016.) 

APPEAL and CROSS-APPEAL from the Board of Tax Appeals, Nos. 2012-1169 and 

2012-2806. 

____________________ 

O’NEILL, J. 

{¶ 1} We decide this case as a companion case to Crutchfield Corp. v. Testa, 

__ Ohio St.3d __, 2016-Ohio-7760, __ N.E.3d __, with which this case was 

consolidated for purposes of oral argument. Appellant and cross-appellee, Mason 

Companies, Inc., is based in Wisconsin, and it appeals from the imposition of 
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Ohio’s commercial-activity tax (“CAT”) on revenue it has earned from its sales of 

goods through orders received via telephone, mail, and the Internet. Like 

Crutchfield, Mason Companies contests its CAT assessments because it operates 

outside Ohio, employs no personnel in Ohio, and maintains no facilities in Ohio. 

{¶ 2} The 24 assessments at issue here cover the period from July 1, 2005, 

through September 30, 2011. In determining that our holding in Crutchfield

requires us to affirm these assessments, we rely on Mason Companies’ decision to 

restrict its protest to the imposition of the tax, while not contesting the amounts of 

tax assessed, to conclude that Mason Companies satisfied the $500,000 salesreceipts threshold, triggering its CAT liability during that period. See R.C. 

5751.01(H)(3) and (I)(3). Mason Companies, however, asserts that Ohio’s CAT 

violates the Commerce Clause of the United States Constitution and that therefore 

Ohio had no authority to tax any of those receipts. 

{¶ 3} Just as in Crutchfield, we first confront a cross-appeal by the tax 

commissioner concerning whether Mason Companies properly raised and 

preserved its constitutional challenge. The circumstances of the present case being 

no different from those in Crutchfield, we resolve the cross-appeal against the tax 

commissioner’s position on the authority of Crutchfield. Similarly, we rely on 

Crutchfield to reject Mason Companies’ contentions that the CAT statutes should 

be construed to preclude the assessments at issue in this appeal. 

{¶ 4} In Crutchfield, we held that under the Commerce Clause, the physical 

presence of an interstate business within Ohio was not a necessary condition for 

imposing the obligations of the CAT law, given that the $500,000 sales-receipts 

threshold adequately assured that the taxpayer’s nexus with Ohio was substantial 

pursuant to R.C. 5751.01(H)(3) and (I)(3). Crutchfield Corp., __ Ohio St.3d __, 

2016-Ohio-7760, __ N.E.3d __, ¶ 3, 5. Applying that holding here resolves Mason 

Companies’ constitutional challenge under the Commerce Clause. It also makes 
January Term, 2016 

3

unnecessary consideration of whether Mason Companies’ Internet contacts with its 

Ohio customers constituted a physical presence for Commerce Clause purposes. 

{¶ 5} For the foregoing reasons, we affirm the decision of the BTA and 

uphold the CAT assessments against Mason Companies. 

Decision affirmed. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, and FRENCH, JJ., concur. 

LANZINGER and KENNEDY, JJ., dissent and would reverse the decision of 

the Board of Tax Appeals for the reasons stated in the dissenting opinion in 2015-

0386, Crutchfield v. Testa. 

_________________ 

 Brann & Isaacson, Martin I. Eisenstein, and David W. Berton; and Baker 

Hostetler and Edward J. Bernert, for appellant and cross-appellee. 

 Michael DeWine, Attorney General, and Daniel W. Fausey and Christine 

Mesirow, Assistant Attorneys General, for appellee and cross-appellant. 

 Macey, Wilenski & Hennings, L.L.C., and Peter G. Stathopoulos; and 

Robert Alt, urging reversal for amici curiae Buckeye Institute for Public Policy 

Solutions, Mackinac Center for Public Policy, NetChoice, and American Catalog 

Mailers Association, Inc. 

Fredrick Nicely and Nikki Dobay, urging reversal for amicus curiae Council 

on State Taxation. 

 Goldstein & Russell, P.C., Eric F. Citron, and Thomas C. Goldstein, urging 

affirmance for amici curiae National Governors Association, National Conference 

of State Legislatures, Council of State Governments, National Association of 

Counties, National League of Cities, U.S. Conference of Mayors, International 

City/County Management Association, International Municipal Lawyers 

Association, and Government Finance Officers Association. 
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 Bricker & Eckler, L.L.P., Mark A. Engel, and Anne Marie Sferra, urging 

affirmance for amici curiae Ohio Manufacturers’ Association, Ohio State Medical 

Association, Ohio Dental Association, and Ohio Chemistry Technology Council. 

 Bruce Fort, urging affirmance for amicus curiae Multistate Tax 

Commission.

_________________