OPINIONS OF THE SUPREME COURT OF OHIO 

 

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Ritchie Photographic, Appellant v. Limbach, Tax Commr., 

Appellee. 

[Cite as Ritchie Photographic v. Limbach (1994), Ohio 

St.3d .] 

Taxation -- Sales and use tax -- Sales of school children 

 photographs to students or parents are taxable. 

 (No. 93-1500 -- Submitted September 9, 1994 -- Decided 

December 30, 1994.) 

 Appeal from the Board of Tax Appeals, No. 90-D-780. 

 For the audit period October 1, 1984 through March 31, 

1988, the Tax Commissioner of Ohio assessed appellant, Ritchie 

Photographic ("Ritchie"), $42,123.80 plus fifteen percent 

penalty for sales and use taxes. Ritchie appealed to the Board 

of Tax Appeals ("BTA"), claiming exemption from taxation 

because it sold photographs to schools or school districts 

("schools"). An evidentiary hearing was conducted on May 16 

and 17, 1991 by a BTA attorney-examiner and, on June 25, 1993, 

the assessment was affirmed. Ritchie avers that the matter was 

transferred to another attorney examiner, before the BTA 

rendered its decision. 

 Ritchie is a sole proprietorship operated by John and 

Lavonne Ritchie out of Cincinnati, Ohio. Ritchie produces and 

sells photographs of school children . Ritchie responds to 

solicitations of bids from schools and enters into oral or 

written contracts with schools . The school selects the 

picture-taking dates and determines the commission to be paid 

to the school for participation in the program. As an example, 

Northwest Junior High School was paid a thirty-five percent 

commission, and members of the board of education's treasurer's 

office collected the price of photographs from the student or 

the parent at the time of the sitting. The school also 

determines which packages of pictures should be made available 

for purchase; however, the choice of a particular package and 

the selection of individual pictures is left to the student or 

the parent. Under a typical contract, Ritchie provides color 
photographs as requested by students or parents, and guarantees 

customer satisfaction. Ritchie also supplies free photographs 

of each student for use in the school security program required 

by R.C. 3319.322. 

The cause is now before the court upon an appeal as of right. 

 

 Thomas A. Simons, Jr.; Graydon, Head & Ritchey, Harry J. 

Finke,IV, and Susan J. Dlott , for appellant. 

 Lee Fisher, Attorney General, and Janyce C. Katz, 

Assistant Attorney General, for appellee. 

 Per Curiam. Ritchie alleges the BTA violated its right of 

due process of law and denied it the equal protection of the 

laws because the BTA changed attorney-examiners during the 

process of deciding the case. Also, Ritchie contends the BTA 

erred in its factual conclusion that Ritchie was selling 

photographs to students rather than to the schools, which would 

be exempt from paying tax. . 

 At oral argument, Ritchie renewed its motion to supplement 

the record, contending it had been denied due process of law 

because the BTA replaced the attorney-examiner who had 

conducted the evidentiary hearing with another 

attorney-examiner who worked from a "cold record" to decide 

that the Tax Commissioner's assessment was proper. That motion 

was denied prior to oral argument. 

 The instant decision is clearly the BTA's decision and not 

an attorney-examiner's. Ritchie presented no evidence 

concerning the details of the hearing to support its 

allegations; however, the alleged procedure does not violate 

any statutory right nor is it a constitutional denial of due 

process or equal protection of the laws. 

 R.C. 5703.02 authorizes the BTA to determine all appeals 

of questions of law and fact arising under our tax laws; 

R.C.5717.02 entitles the BTA to appoint attorney-examiners to 

conduct hearings and to report their findings to the BTA for 

affirmation or rejection; and R.C. 5703.13 provides that the 

majority of the BTA constitutes a quorum to transact business, 

and every order made by a member, when approved by the board, 

is deemed the order of the board. 

 In Laughlin v. Pub.Util. Comm. (1966), 6 Ohio St.2d 110, 

35 O.O.2d 132, 216 N.E.2d 60, an attorney-examiner conducted 

the hearing; another attorney-examiner made the report and 

recommendation. We rejected appellant's objection to the 

procedure as being "without merit." Id. at 112, 35 O.O.2d at 

133, 216 N.E.2d at 61. 

 Accordingly, Ritchie's motion to supplement the record is 

again denied. 

 As to the merits of the instant cause, we agree with the 

BTA. The transactions involving Ritchie's school photographs 

were sales in which the vendor was Ritchie and the consumer was 

the student. 

 R.C. 5739.03, as applicable, provides: 

 "* * * [T]he tax imposed by * * * 5739.02 * * * shall be 

paid by the consumer to the vendor, and each vendor shall 

collect from the consumer * * * the tax payable on each taxable 

sale * * *." 

 Ritchie applied for exemption under R.C. 5739.02(B)(1) 
which exempts "[s]ales to the state, or any of its political 

subdivisions. The taxpayer has the burden of showing to what 

extent and in what manner the determination of the Tax 

Commissioner is in error. Inland Refuse Transfer Co. v. 

Limbach (1990), 53 Ohio St.3d 10, 558 N.E.2d 42 ; Midwest 

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

365, 235 N.E.2d 511. 

 The record supports the BTA's findings that Ritchie 

responded to orders for photographs completed by the student or 

the parent, promising payment. There is no indication that 

orders were placed by schools or that schools purchased and 

then sold photographs to students or parents. 

 The commissioner contends that Ritchie did not introduce a 

single contract into evidence which would prove that a school 

purchased photographs from Ritchie in order to resell them in 

the same form to students. Although Ritchie disputes this, 

there is no evidence that any of the schools were vendors as 

defined by R.C. 5739.01(C), that the schools ordered Ritchie's 

pictures in quantities in order to sell the pictures to the 

students, or that the schools made retails sales. 

 Ritchie had the opportunity, but failed to submit 

contracts to support its contention that its sales were made to 

schools which then resold the photographs to students or their 

parents. Sales such as those involved in this appeal are 

presumed to be taxable unless the taxpayer establishes the 

contrary. R.C. 5739.02. Ritchie failed to present evidence to 

overcome that presumption, and thus, did not meet its burden of 

proof. 

 The BTA specifically found that the schools did not buy 

pictures, but merely provided Ritchie with an opportunity to 

sell pictures to students, and in return, Ritchie paid the 

schools a commission or an agreed amount per package sold. 

This finding is neither unreasonable or unlawful, and, 

therefore, the decision of the BTA is affirmed. 

 Decision affirmed. 

 Moyer, C.J., A.W. Sweeney, Wright, Resnick, F.E. Sweeney 

and Pfeifer, JJ., concur. 

 Douglas, J., dissents.