[Cite as Global Knowledge Training, L.L.C. v. Levin, 127 Ohio St.3d 34, 2010-Ohio-4411.] 

GLOBAL KNOWLEDGE TRAINING, L.L.C., APPELLANT, v. LEVIN,

TAX COMMR., APPELLEE. 

[Cite as Global Knowledge Training, L.L.C. v. Levin, 

127 Ohio St.3d 34, 2010-Ohio-4411.] 

Taxation — Use tax on computer training — First Amendment, due process, and 

equal protection challenges were not properly raised — Record did not 

support taxing two courses — Decision affirmed in part and reversed in 

part. 

(No. 2009-1543 — Submitted May 11, 2010 — Decided September 23, 2010.) 

APPEAL from the Board of Tax Appeals, No. 2006-V-471. 

__________________ 

O’DONNELL, J. 

{¶ 1} Global Knowledge Training, L.L.C., a self-described “world leader 

in education in the areas of information technology, telecommunications, and 

broadband,” appeals from a decision of the Board of Tax Appeals (“BTA”), 

which affirmed a determination of the tax commissioner to impose a use tax on 34 

computer-related training courses that Global provides to employees of its 

corporate clients in Ohio based on the commissioner’s conclusion that the courses 

were actually taxable computer-services training. 

{¶ 2} On appeal, Global raises constitutional challenges, asserting that 

the taxing statutes violate free speech by taxing speech based on content and that 

they deny equal protection of law by taxing certain types of training courses and 

not others without a compelling reason for the distinction. Global further claims 

that the regulatory language is unconstitutionally void for vagueness, as it fails to 

clarify definitions such as “computer equipment” and “computer systems.” 

Global also challenges the tax imposed on training courses involving routers and 
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switches, which it asserts are not computer equipment; courses involving 

nontaxable application-software training as opposed to systems-software training; 

and beginning courses taught to employees who do not, in Global’s view, qualify 

as “computer programmers and operators.” The tax commissioner posits that the 

constitutional claims presented by Global are not properly raised in this court and 

that Global has not demonstrated that the decision of the BTA with respect to the 

other challenges is unreasonable or unlawful. 

{¶ 3} We lack jurisdiction over Global’s free speech and equal 

protection claims because Global failed to raise them in its notice of appeal to the 

BTA, and we lack jurisdiction over its void-for-vagueness claim because Global 

failed to specify it in its notice of appeal to this court. Regarding its 

nonconstitutional claims, Global has not demonstrated that the decision of the 

BTA was unreasonable or unlawful except with respect to two courses, which 

involved nontaxable application-software training, erroneously characterized as 

taxable by the commissioner. 

{¶ 4} Accordingly, except for its decision regarding tax assessed on two 

courses, the decision of the BTA is affirmed. 

Facts and Procedural History 

{¶ 5} According to its Senior Vice President for Product Management 

and Enterprise Solutions, Global “provide[s] training for courses on a variety of 

topics to corporate employees, funded by the corporation, [and] to professionals 

in that corporation employed by the corporation.” The tax commissioner 

performed an audit of Global as a vendor of such services for the period July 1, 

1997, through June 30, 2000, and determined that Global had improperly failed to 

collect and remit use tax on a number of courses taught in various business 

locations in Ohio during that period. The commissioner determined that the 

courses at issue constituted taxable “computer services” under the “training” 

provision of R.C. 5739.01(Y)(b). With preassessment interest and penalty, the 
January Term, 2010 

3 

assessment amounted to $103,269.45. In his final determination, the tax 

commissioner remitted the penalty, resulting in a final assessment of $91,872.15. 

{¶ 6} When purchased for use in business, computer services are subject 

to sales or use tax in Ohio. R.C. 5739.01(B)(3)(e), 5739.02, and 5741.02(A)(1) 

and (C)(2). The definition of “computer services” includes “training of computer 

programmers and operators” when the training is “provided in conjunction with 

and to support the sale, lease, or operation of taxable computer equipment or 

systems.” R.C. 5739.01(Y)(1)(b). 

{¶ 7} The tax commissioner promulgated an administrative rule to 

clarify the statutory language. The version of the rule in effect during the audit 

period defined “computer services” as “[t]raining computer programmers and 

operators,” subject to the additional definitions for “programming” and “training.” 

Former Ohio Adm.Code 5703-9-46(A)(2), (5), and (6), 1992-1993 Ohio Monthly 

Record 824-825, effective March 21, 1993. 1 

{¶ 8} The rule defined “training” to mean “instructing computer 

programmers and operators in the use of computer equipment and its system 

software.” Id. at 825. The rule then defined “systems software” as “all 

programming that controls the basic operations of the computer, such as 

arithmetic, logic, compilation or similar functions whether it is an integral part of 

the computer hardware or is contained on magnetic media.” Id. Explicitly 

excluded from “training” was “instruction in the use of application software or 

other result-oriented procedures.” Id. Reinforcing the same point, the rule stated 

that “the service of writing, changing, or debugging of application software” was 

not included in “programming.” Id. Finally, the rule defined “application 

software” to include “programs that are intended to perform business functions or 

 

1. Revisions to Ohio Adm.Code 5703-9-46 occurred in 2004. 
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control or monitor processes.” Id. Thus, with respect to software training, the 

rule in effect during the audit period extended the tax to training on “systems 

software” but not to application software. Id. However, with respect to the types 

of equipment involved in the training or the persons attending the training, the 

rule relied more broadly upon the terms “computer equipment” and “computer 

programmers and operators.” Id. 

{¶ 9} Global appealed the tax commissioner’s final determination to the 

BTA, arguing that the services it provided did not qualify as “taxable computer 

services” because (1) it involved training on routers and switches, not “computer 

equipment,” (2) several classes involved nontaxable application software rather 

than taxable systems software, and (3) some of those attending courses often did 

not qualify as “computer programmers and operators” as required by statute. Its 

notice of appeal to the BTA, however, did not raise any constitutional challenges 

to R.C. 5739.01(Y)(1)(b). 

{¶ 10} In its hearing before the BTA, Global presented the testimony of 

Michael Kevin Fox, a vice-president of Global, and offered ten exhibits in support 

of its contentions. The BTA rejected Global’s claims, finding that routers and 

switches qualified as “computer equipment,” the courses challenged pertained to 

systems software, except with respect to two challenged courses, and the persons 

trained qualified as “computer programmers and operators” as used in R.C. 

5739.01(Y)(1)(b). 

{¶ 11} Global appealed the BTA’s decision to this court, challenging the 

constitutionality of R.C. 5739.01(Y)(1)(b) with respect to free speech and equal 

protection and urging that the statute as utilized with the tax commissioner’s rule 

is void for vagueness. Global also presents three propositions of law contesting 

matters raised before the BTA. 

Standard of Review 
January Term, 2010 

5 

{¶ 12} In Columbus City School Dist. Bd. of Edn. v. Zaino (2001), 90 

Ohio St.3d 496, 497, 739 N.E.2d 783, we reiterated that our standard of review 

from a decision of the BTA is whether it is “reasonable and lawful.” While we 

“will not hesitate to reverse a BTA decision that is based on an incorrect legal 

conclusion,” Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino (2001), 

93 Ohio St.3d 231, 232, 754 N.E.2d 789, we will affirm the BTA’s resolution of 

factual issues if the record contains reliable and probative evidence that supports 

the BTA’s findings. Am. Natl. Can Co. v. Tracy (1995), 72 Ohio St.3d 150, 152, 

648 N.E.2d 483; Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856, 856 

N.E.2d 954, ¶ 14. As we noted in Nusseibeh v. Zaino, 98 Ohio St.3d 292, 2003-

Ohio-855, 784 N.E.2d 93, ¶ 10, the tax commissioner’s findings “are 

presumptively valid, absent a demonstration that those findings are clearly 

unreasonable or unlawful.” Consequently, the taxpayer carries the burden “to 

show the manner and extent of the error in the Tax Commissioner’s final 

determination.” Stds. Testing Laboratories, Inc. v. Zaino, 100 Ohio St.3d 240, 

2003-Ohio-5804, 797 N.E.2d 1278, ¶ 30. Specifically, “when an assessment is 

contested, the taxpayer has the burden ‘ “to show in what manner and to what 

extent” ’ the commissioner’s investigation and audit, and the findings and 

assessments based thereon, were faulty and incorrect.” Maxxim Med., Inc. v. 

Tracy (1999), 87 Ohio St.3d 337, 339, 720 N.E.2d 911, quoting Federated Dept. 

Stores, Inc. v. Lindley (1983), 5 Ohio St.3d 213, 215, 5 OBR 455, 450 N.E.2d 

687, quoting Midwest Transfer Co. v. Porterfield (1968), 13 Ohio St.2d 138, 42 

O.O.2d 365, 235 N.E.2d 511, syllabus. 

Constitutional Claims 

{¶ 13} Global presents three propositions of law challenging R.C. 

5739.01(Y)(1)(b), asserting that it infringes on constitutionally protected speech, 

violates its constitutional right to equal protection, and is void for vagueness. The 

tax commissioner contends that these claims are jurisdictionally barred because 
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they either were not specified in the notice of appeal to the BTA or were not 

sufficiently specified in the notice of appeal to this court. 

Free Speech and Equal Protection Challenges 

{¶ 14} Global asserts that R.C. 5739.01(Y)(1)(b) violates the free-speech 

guarantees of the First Amendment to the United States Constitution and Section 

11, Article I of the Ohio Constitution because the definition of “training” 

provided in former Ohio Adm.Code 5703-9-46(A)(6), 1992-1993 Ohio Monthly 

Record 825, impermissibly distinguishes between training in systems software 

and application software based on the content of speech. Global also advances an 

equal-protection claim pursuant to the Fourteenth Amendment to the United 

States Constitution and Section 2, Article I of the Ohio Constitution, arguing that 

because otherwise similarly situated communicators are taxed or not taxed based 

on the content of their speech, the tax discriminates based on whether or not a 

person has exercised a fundamental right. In response, the tax commissioner 

contends that we lack jurisdiction to consider these claims because Global failed 

to raise them in its notice of appeal to the BTA. Relying on our decision in 

Cleveland Gear Co. v. Limbach (1988), 35 Ohio St.3d 229, 520 N.E.2d 188, 

Global urges that these constitutional challenges are properly presented to this 

court in the first instance. 

{¶ 15} R.C. 5717.02 provides that a notice of appeal to the BTA “shall * * 

* specify the errors therein complained of.” It is well settled that these 

requirements are jurisdictional prerequisites to the exercise of authority by the 

BTA or this court on appeal. See, e.g., Newman v. Levin, 120 Ohio St.3d 127, 

2008-Ohio-5202, 896 N.E.2d 995, ¶ 26 (jurisdiction of the BTA is “limited to 

errors specified in the notice of appeal”); Osborne Bros. Welding Supply, Inc. v. 

Limbach (1988), 40 Ohio St.3d 175, 178, 532 N.E.2d 739 (where error was not 

specified, the BTA and the court on appeal lack jurisdiction over it). 
January Term, 2010 

7 

{¶ 16} However, we recognized an exception to this rule in Cleveland 

Gear Co. v. Limbach (1988), 35 Ohio St.3d 229, 520 N.E.2d 188, in which we 

explained that “[t]he question of whether a tax statute is unconstitutional on its 

face may be raised initially in the Supreme Court or the courts of appeals, 

although not previously raised before the Board of Tax Appeals.” (Emphasis 

added.) Id. at paragraph two of the syllabus. A facial challenge may therefore be 

raised for the first time in this court because the “Board of Tax Appeals is an 

administrative agency, a creature of statute, and is without jurisdiction to 

determine the constitutional validity of a statute.” Id. at paragraph one of the 

syllabus. 

{¶ 17} Pursuant to Cleveland Gear, “the facial unconstitutionality of the 

legislation * * * is to be decided by considering the Act itself without regard to 

extrinsic facts.” Id. at 231, 520 N.E.2d 188; see also ComTech Sys., Inc. v. 

Limbach (1991), 59 Ohio St.3d 96, 100-101, 570 N.E.2d 1089 (a taxpayer’s 

constitutional challenge to the “one subject rule” involved facial attacks and could 

be considered by this court in the first instance because the court needed to review 

only the act and its history alone, without considering extrinsic facts). 

{¶ 18} While Global argues in its brief that its free speech and equal 

protection claims are facial challenges to R.C. 5739.01(Y)(1)(B), permitting it to 

raise them in the first instance in this court, the focus of Global’s challenge does 

not involve the text of R.C. 5739.01(Y)(1)(B), which merely defines “computer 

services”; rather, Global contends that the statute as construed by the 

administrative rule violates its rights to free speech and equal protection. 

Specifically, Global challenges the distinction made in former Ohio Adm.Code 

5703-9-46(A)(5), 1992-1993 Ohio Monthly Record at 825, between course 

content involving systems software and course content involving application 

software as exemplifying the content-based distinction that offends free-speech 

and equal-protection principles. However, unlike former Ohio Adm.Code 5703-
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9-46(A), R.C. 5739.01(Y)(1)(b) contains no explicit tax-related distinction 

between systems-software training and application-software training. While 

federal courts sometimes consider administrative practice when evaluating facial 

challenges to a statute, see Forsyth Cty., Georgia v. Nationalist Movement (1992), 

505 U.S. 123, 131, 112 S.Ct. 2395, 120 L.Ed.2d 101 (“In evaluating respondent’s 

facial challenge, we must consider the county’s authoritative constructions of the 

ordinance, including its own implementation and interpretation of it”), for 

purposes of the Cleveland Gear exception, only the text of the statute itself may 

be considered when evaluating a “facial” challenge. Cleveland Gear, 35 Ohio 

St.3d at 231, 520 N.E.2d 188. 

{¶ 19} To the extent that Global seeks to challenge the constitutionality of 

former Ohio Adm.Code 5703-9-46(A)(5), Global could have challenged the 

administrative rule before the BTA, which does have jurisdiction to invalidate an 

administrative rule, but did not do so. See R.C. 5703.14(C) (affected person may 

file an application for review with the BTA to determine the reasonableness of an 

administrative rule promulgated by the tax commissioner); see also Stone v. 

Limbach (June 30, 1988), BTA No. 1985-C-931, at 21 (invalidating tax rule, 

noting that “while O.A.C. Rule 5703-25-01 was properly promulgated, it is 

unreasonable as it conflicts with R.C. Section 5727.15”).2

 

{¶ 20} Based on the foregoing, Global’s free-speech and equal-protection 

claims are not facial challenges to R.C. 5739.01(Y)(1)(b) as contemplated by 

Cleveland Gear. Accordingly, we lack jurisdiction to consider them because they 

were never presented to the BTA. 

Vagueness Challenge 

 

2. In any event, Global failed to challenge the constitutionality of the administrative rule in the 

notice of appeal to this court, and we therefore lack jurisdiction to consider this claim. See 

Newman v. Levin, 120 Ohio St.3d 127, 2008-Ohio-5202, 896 N.E.2d 995, ¶ 26. 
January Term, 2010 

9 

{¶ 21} Global also argues that the terms “computer equipment” and 

“computer systems” (sic) in R.C. 5739.01(Y)(1)(b) are “impermissibly vague” 

and therefore violate the due process guarantees of the Ohio and United States 

Constitutions. The tax commissioner responds that Global failed to raise its 

vagueness claim in its notice of appeal filed in this court. 

{¶ 22} R.C. 5717.04 provides that a notice of appeal from the BTA to the 

court “shall set forth the decision of the board appealed from and the errors 

therein complained of.” As this court stated in Newman v. Levin, 120 Ohio St.3d 

127, 2008-Ohio-5202, 896 N.E.2d 995, ¶ 28, quoting Norandex, Inc. v. Limbach

(1994), 69 Ohio St.3d 26, 31, 630 N.E.2d 329, fn. 1, “when a litigant fails to raise 

a particular argument in the notice of appeal to the court, the court ‘do[es] not 

have jurisdiction to consider the argument.’ ” See also Lawson Milk Co. v. 

Bowers (1961), 171 Ohio St. 418, 420, 14 O.O.2d 217, 171 N.E.2d 495 

(dismissing an appeal from the BTA because the notice did “not sufficiently set 

forth ‘the errors therein complained of’ ”). 

{¶ 23} In its notice of appeal to the court, Global argues that the BTA 

“erroneously and unjustifiably applied R.C. 5739.01(B)(3)(e) and R.C. 

5739.01(Y)[1](b) to Appellant’s training courses at issue based upon the content 

of and the pedagogical methods used in the courses in violation of Sections 2 and 

11 of Article I of the Ohio Constitution and the First and Fourteenth Amendments 

to the United States Constitution.” Notably, Global does not expressly allege that 

the statutory definitions of “computer equipment” and “computer systems” are 

unconstitutionally vague and therefore constitute a deprivation of due process. 

Nor does a reference to the Fourteenth Amendment itself sufficiently assert that 

these statutory provisions violate due process and are void for vagueness. 

Accordingly, Global’s notice of appeal does not adequately set forth a 

constitutional vagueness challenge, and we, therefore, lack jurisdiction to consider 

it. 
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Statutory Claims 

{¶ 24} Global does raise three separate claims pertaining to the 

application of R.C. 5739.01 and former Ohio Adm.Code 5703-9-46 to its training 

courses, arguing that the commissioner impermissibly assessed tax on several of 

its courses. In its brief, Global urges that 24 of its courses should not be taxed: 17 

that involved instruction in the use of routers and switches, six that involved 

nontaxable application software, and ten that Global claims involved introductory 

courses not attended by “computer programmers and operators.” The tax 

commissioner maintains that each of these courses is properly taxed as “computer 

services.” 

Routers and switches as “computer equipment” 

{¶ 25} Global argues that several courses effectuated training on routers 

and switches, not “computer equipment” as that term is used in R.C. 

5739.01(Y)(1)(b), and are therefore not taxable. Specifically, Global urges that 

training may be subject to the use tax only if the equipment involved in the 

training is a computer. The tax commissioner responds that training on routers 

and switches involves training on “computer equipment” or “computer systems” 

and is therefore taxable. 

{¶ 26} R.C. 5739.01(Y)(1)(b) does not limit taxation to courses involving 

training on computers. Rather, the statute levies the tax on instruction “provided 

in conjunction with and to support the * * * operation of taxable computer 

equipment or systems.” (Emphasis added.) The evidence presented to the BTA 

indicates that the instruction provided by Global in training employees on routers 

and switches would support the operation of computer systems. Significantly, 

Global’s vice president testified at the BTA hearing that “in today’s network, the 

routing and switching environment is used in a more complex way to attach 

telephones, computers and printers.” In addition, the course manual for 

“Understanding Network Fundamentals,” introduced at the BTA, shows that 
January Term, 2010 

11 

Global’s courses focus on “information technology” training and that such 

training includes instruction relating to routers and switches.3 

{¶ 27} Accordingly, the BTA reasonably and lawfully applied the law as 

to routers and switches, its findings are supported by reliable and probative 

evidence, and we affirm this part of its decision. See HIN, L.L.C. v. Cuyahoga 

Cty. Bd. of Revision, 124 Ohio St.3d 481, 2010-Ohio-687, 923 N.E.2d 1144, ¶ 13 

(a BTA decision is to be affirmed if it correctly applied the law). 

Application software v. systems software 

{¶ 28} Global also argues that six of its training courses involved training 

in nontaxable application software as opposed to taxable systems software: # 

6950 PERL Scripting, # 6980 PERL Scripting with CGI, # 8700 Nortel Hub 

Activity, # 8800 Router Installation & Basic Configuration, # 8900 Router 

Configuration & Management, and # 9300 Troubleshooting TCP/IP Networks. 

{¶ 29} With respect to the BTA’s tax determination involving # 6950 

PERL Scripting and # 6980 PERL Scripting with CGI, Global asserts that PERL 

and PERL with CGI are programming languages that are “used in web and 

network applications” and further argues that this instruction is not taxable, 

because the programming language is used to write programs in the nature of 

application software, not systems software. The tax commissioner, on the other 

hand, relies on testimony that “operating systems administrators” use the 

programming language. However, that testimony does not by itself establish 

whether these languages primarily involve systems software or application 

software. 

 

3. To the extent that Global argues that routers and switches might be used as part of 

telecommunications or cable networks, as distinct from computer networks or systems, Global has 

not shouldered its burden as the taxpayer to offer proof that any particular course that the tax 

commissioner assessed was not taxable because it pertained to telecommunications systems, as 

opposed to computer systems. See Maxxim Med., Inc. v. Tracy (1999), 87 Ohio St.3d 337, 339-

340, 720 N.E.2d 911. 
SUPREME COURT OF OHIO

12 

{¶ 30} In this case, the BTA determined that the PERL courses involved 

application software because “Mr. Fox testified that both courses cover systems 

software and that VMS stands for a software operation.” However, that testimony 

was relative to the course Open VMS Fundamentals, not the PERL courses. 

Contrary to the BTA’s determination, Fox did not provide any testimony as to 

whether the PERL courses related to systems software. Rather, Global 

characterized PERL and PERL with CGI as “used in web and network 

applications” before the commissioner and the BTA. Given the uncontroverted 

evidence that the courses at issue involve programming languages that are “used 

in web and network applications,” we note that the record simply does not support 

a finding that these courses qualify as taxable training. Therefore, we reverse the 

BTA’s determination with respect to these courses. See NFI Metro Ctr. II Assoc. 

v. Franklin Cty. Bd. of Revision (1997), 78 Ohio St.3d 105, 107, 676 N.E.2d 881 

(reversing a BTA decision that “reached the factual conclusions” that “the 

testimony and evidence [did] not support”), citing Gen. Motors Corp. v. 

Cuyahoga Cty. Bd. of Revision (1996), 74 Ohio St.3d 513, 516, 660 N.E.2d 440. 

{¶ 31} With respect to # 8700 Nortel Hub Activity, # 8800 Router 

Installation & Basic Configuration, # 8900 Router Configuration & Management, 

and # 9300 Troubleshooting TCP/IP Networks, Global failed to properly 

challenge these courses as systems software in the BTA,4 and therefore, they were 

not considered by the BTA. We decline to address the propriety of the tax 

assessed in conjunction with these courses in the first instance. Neil House Hotel 

Co. v. Franklin Cty. Bd. of Revision (1946), 147 Ohio St. 231, 34 O.O. 127, 70 

N.E.2d 646, paragraph one of the syllabus.

Individuals attending introductory level courses as 

 

4. In its decision and relying on an exhibit provided by Global to the BTA, the BTA noted that 

Global had challenged only four courses as involving nontaxable training in systems software. 

Global has not corrected the BTA’s characterization of its claims to the BTA. 
January Term, 2010 

13 

“computer programmers or operators” 

{¶ 32} Global next argues that the attendees of some of its courses were 

not “computer programmers and operators.” As noted previously, taxable 

“computer services” include “training of computer programmers and operators, 

provided in conjunction with and to support the sale, lease, or operation of taxable 

computer equipment or systems.” R.C. 5739.01(Y)(1)(b). 

{¶ 33} Global argues that the introductory-level courses were so basic in 

their content that the people attending the training did not qualify as either 

“computer programmers” or “operators” as referenced in the statute. The tax 

commissioner believes that the training course attendees qualified, and therefore, 

the courses are taxable. 

{¶ 34} The dispute as to the scope of the term “operators” stems from a 

prior decision of the BTA, Mentor Technologies Ltd. Partnership v. Tracy (Aug. 

25, 1995), BTA No. 94-A-1058, 1995 WL 514159, which the BTA relied on in 

the instant case. In Mentor Technologies, the commissioner argued that 

“computer operators” means those individuals who “operated computers in the 

performance of their duties for their employers.” Id. at *2. The BTA rejected the 

commissioner’s position, holding that a “computer operator” must possess “a 

higher level of training and understanding of the computer.” Id. at *3. 

{¶ 35} We disagree. First, despite Global’s claim that beginners taking 

introductory courses cannot be “computer programmers and operators,” the 

General Assembly neither limited these terms to those with computer experience 

and knowledge nor further defined them. A plain reading of R.C. 

5739.01(Y)(1)(b) reveals that “computer services” includes training of individuals 

who are not yet computer programmers or operators and is not limited to those 

already trained. In fact, an “operator” is defined simply as “a worker who 

operates a * * * specified machine or device as his regular trade.” Webster’s 

Third New International Dictionary (1986) 1581. 
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14 

{¶ 36} Second, it was unnecessary for the General Assembly to further 

define these terms, as it expressly limited the scope of the tax in a manner that is 

relevant to the question of who may qualify as a “computer programmer or 

operator” by directing that computer services are subject to tax only when they 

are purchased “for use in business.” (Emphasis added.) R.C. 5739.01(B)(3)(e). 

In other words, training becomes subject to the tax when an employer purchases 

the training to enable its employees to operate computers in the context of their 

employment. See Compuserve, Inc. v. Limbach (1994), 93 Ohio App.3d 777, 

780, 639 N.E.2d 1227 (when R.C. 5739.01(B)(3)(e) was enacted, “the provision 

of computer services to business customers became a taxable transaction,” while 

the “provision of computer services to nonbusiness customers remained 

nontaxable”). The record in this case demonstrates that the commissioner 

assessed the tax with respect to employer-purchased training that enabled its 

employees to operate computers and computer systems in the course of their 

employment. Thus, the “for use in business” requirement of R.C. 

5739.01(B)(3)(e) assures that the persons being trained qualify as computer 

operators. 

{¶ 37} Accordingly, the BTA reasonably and lawfully applied the law as 

to the status of the trainees, its findings are supported by reliable and probative 

evidence, and we affirm this part of its decision. See HIN, L.L.C., 124 Ohio St.3d 

481, 2010-Ohio-687, 923 N.E.2d 1144, ¶ 13. 

Conclusion 

{¶ 38} Based on the foregoing, this court lacks jurisdiction to consider 

Global’s constitutional claims because they either were not properly presented to 

the BTA or were not incorporated into the notice of appeal filed in this court. 

With respect to its other claims, Global has not demonstrated that the 

determination made by the BTA in connection with routers and switches, 

application software, and the status of trainees was unreasonable or unlawful, and 
January Term, 2010 

15 

we therefore affirm the decision, except that we reverse with respect to the PERL 

and PERL with CGI courses, as they involve nontaxable training on application 

software. 

Judgment accordingly. 

 BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

LANZINGER, and CUPP, JJ., concur. 

__________________ 

 Buckingham, Doolitle & Burroughs, L.L.P., Steven A. Dimengo, and 

David Hilkert; and Ropes & Gray, L.L.P., William I. Sussman, and Michael P. 

Robotti, for appellant. 

 Richard Cordray, Attorney General, and Damion Clifford, Assistant 

Attorney General, for appellee. 

______________________