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

Renacci v. Testa, Slip Opinion No. 2016-Ohio-3394.] 

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-3394

RENACCI ET AL., APPELLANTS AND CROSS-APPELLEES, v. TESTA, TAX COMMR.,

APPELLEE AND CROSS-APPELLANT. 

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

may be cited as Renacci v. Testa, Slip Opinion No. 2016-Ohio-3394.] 

Taxation—R.C. 5747.15—Taxpayers had reasonable cause to resist paying tax 

based on reasonable but mistaken interpretation of federal statutes—Tax 

commissioner abused his discretion in refusing to refund double-interest 

penalty. 

(No. 2014-1893—Submitted March 8, 2016—Decided June 15, 2016.) 

APPEAL and CROSS-APPEAL from the Board of Tax Appeals, No. 2012-1850. 

____________________ 

PFEIFER, J. 

{¶ 1} In this case, appellee and cross-appellant, the tax commissioner, first 

imposed, and then declined to remit, a double-interest income-tax penalty for delay 

of payment. The Board of Tax Appeals (“BTA”) affirmed. The income at issue 

was tax year 2000 pass-through distributive-share income from a Subchapter S 
SUPREME COURT OF OHIO

2

corporation whose shares were held by an “electing small business trust” (“ESBT”) 

under federal law. A Subchapter S corporation is often referred to as an “S 

corporation.” “Subchapter S of the Internal Revenue Code (Section 1361 et seq., 

Title 26, U.S.Code) permits the owners of qualifying corporations to elect a special 

tax status under which the corporation and its shareholders receive conduit-type 

taxation that is comparable to partnership taxation.” Ardire v. Tracy, 77 Ohio St.3d 

409, 674 N.E.2d 1155 (1996), fn. 1. “For tax purposes, a Subchapter S corporation 

differs significantly from a normal corporation in that the profits generated through 

the S corporation are taxed as personal income to the shareholders. The taxable 

income of an S corporation is computed essentially as if the corporation were an 

individual.” Id.

{¶ 2} The delay in payment resulted from a legal dispute concerning the 

taxability in Ohio of the income in question. Along with numerous other taxpayers 

and their advisors, appellants and cross-appellees, James B. and Tina D. Renacci, 

read the pertinent federal statutes as requiring the imposition of tax on the trust 

rather than on the individual shareholder. The tax department took the contrary 

position, which was ultimately vindicated through our decisions in Knust v. Wilkins, 

111 Ohio St.3d 331, 2006-Ohio-5791, 856 N.E.2d 243; Lovell v. Levin, 116 Ohio 

St.3d 200, 2007-Ohio-6054, 877 N.E.2d 667; and Brown v. Levin, 119 Ohio St.3d 

335, 2008-Ohio-4081, 894 N.E.2d 35. 

{¶ 3} The Renaccis ultimately made payment to the state and are pursuing 

a refund of the double-interest penalty. The tax commissioner has discretion in his 

decision whether to impose or remit the penalty, and in making that decision, he 

considers whether the delay in payment was based on “reasonable cause” or 

“willful neglect.” R.C. 5747.15(C). Although the statute vests broad discretion in 

the tax commissioner, we conclude that in this instance, he abused his discretion in 

denying the refund request. The tax commissioner appears to reject the Renaccis’ 

assertion that they acted in good-faith reliance on a reasonable interpretation of the 
January Term, 2016 

3

law. The tax commissioner unaccountably exalts the pronouncements of his 

information releases, which have no force of law, as though they impose binding 

obligations that no taxpayer should dare to question. 

{¶ 4} For these reasons, we find that the tax commissioner’s decisions to 

impose and retain the double-interest penalty were arbitrary and unconscionable. 

We therefore reverse the decision of the BTA and remand the cause to the tax 

commissioner with instructions that the penalty be refunded, along with any interest 

paid that was associated with that penalty. 

BACKGROUND 

{¶ 5} The issue in this case is whether the tax commissioner abused his 

discretion with regard to imposing a penalty. But that question is tied to an 

underlying dispute of substantive tax law that was resolved in two ways: a treasury 

regulation issued by the federal government, codified at 26 C.F.R. 1.641(c)-1(k), 

and decisions issued by this court in Knust, 111 Ohio St.3d 331, 2006-Ohio-5791, 

856 N.E.2d 243, Lovell, 116 Ohio St.3d 200, 2007-Ohio-6054, 877 N.E.2d 667, 

and Brown, 119 Ohio St.3d 335, 2008-Ohio-4081, 894 N.E.2d 35. That dispute 

can be summarized with the question, Should S-corporation income be taxed to an 

ESBT that holds the S-corporation shares or to the grantor of the trust? 

{¶ 6} For individuals, income tax in Ohio is imposed on Ohio adjusted gross 

income. R.C. 5747.02(A). That tax base is determined initially by reference to the 

taxpayer’s federal adjusted gross income; certain adjustments that convert federal 

adjusted gross income into Ohio adjusted gross income are then prescribed by R.C. 

Chapter 5747. See R.C. 5747.01(A). Under this scheme of taxation, if an item of 

income were properly omitted from federal adjusted gross income, then it would 

not appear in Ohio adjusted gross income unless Ohio law required that the amount 

be added back in (an “add-back”). 

{¶ 7} In this case, the taxpayers read a provision of federal law, enacted in 

1996, as requiring that the income be treated as income of the trust for income-tax 
SUPREME COURT OF OHIO

4

purposes. That provision is 26 U.S.C. 641(c), which provides that the “portion of 

any electing small business trust which consists of stock in 1 or more S corporations 

shall be treated as a separate trust,” and that portion is then subjected to special 

taxation rules by the statute as a trust. 

{¶ 8} The tax commissioner read other provisions of the Internal Revenue 

Code as superseding the requirement of separate-trust treatment when the trust at 

issue qualifies as a “grantor trust.” A “grantor trust” is one in which the grantor 

has retained control of the trust assets, such as the right to revoke the trust, see 26 

U.S.C. 676. The grantor of a grantor trust must report and be taxed on the trust 

income. 26 U.S.C. 671. 

{¶ 9} Here, the tax commissioner argued that the “grantor-trust rule” of 

treating trust income as income of the individual grantor would apply despite the 

ESBT statutory language indicating the possibility that the portion of the trust 

holding S-corporation shares should be subject to special rules of taxation. The tax 

commissioner advanced his view in two information releases, one in 2000 and one 

in 2002. 

{¶ 10} In 2002, the United States Treasury Department promulgated 26 

C.F.R. 1.641(c)-1, which states that “[t]he grantor portion of an ESBT is the portion 

of the trust that is treated as owned by the grantor or another person under subpart 

E [26 U.S.C. 671 et seq.],” which includes the grantor-trust provision. 26 C.F.R. 

1.641(c)-1(b)(1). The taxpayers’ interpretation of the federal law is precluded by 

the definition of the “S portion” of the ESBT, which is taxed to the trust. The S 

portion of the trust must satisfy not just one but two conditions: it must consist of 

S-corporation stock and it must not be “treated as owned by the grantor or another 

person under subpart E” (including 26 U.S.C. 671). 26 C.F.R. 1.641(c)-1(b). Thus, 

taxation as a separate trust occurs only when that portion of the trust is not a grantor 

trust. The regulation specifically states that a “grantor * * * who is treated as the 

owner of a portion of the ESBT includes in computing taxable income items of 
January Term, 2016 

5

income, deductions, and credits against tax attributable to that portion of the ESBT 

under [26 U.S.C.] 671.” 26 C.F.R. 1.641(c)-1(c). 

{¶ 11} There is an important limitation on the effect of the treasury 

regulation: it applies “generally” to taxable years of ESBTs “beginning on or after 

May 14, 2002.” 26 C.F.R. 1.641(c)-1(k). Certain parts of the regulation (those 

relevant here) are applicable only to “taxable years of ESBTs that end on and after 

December 29, 2000.” Id. In this case, the Renaccis presented evidence that the 

taxable year of the ESBT ended before December 29, 2000, with the result that their 

situation is not controlled by the regulation. 

The tax commissioner’s information releases 

{¶ 12} Beginning with information release IT 2000-01 (issued Jan. 19, 

2000), available at http://www.tax.ohio.gov/ohio_individual/individual/ 

information_releases/it200001.aspx, the Ohio Department of Taxation took the 

position that the ESBT election did not change the obligation of the grantor of a 

grantor trust to include the S-corporation income on his or her own individual 

income tax return. The release states: 

Effective for individual and estate taxable years beginning 

after December 31, 1999, the Income Tax Audit Division will 

require certain individuals and estates to include in their federal 

adjusted gross income (“FAGI”) and Ohio taxable income all 

relevant pass-through items of income, gain or loss from S 

corporations when such items have been treated as reportable for 

federal income tax purposes on a trust’s fiduciary income tax return 

(Form 1041) because the trust has elected to be taxed as an Electing 

Small Business Trust (“ESBT”) under Internal Revenue Code 

(“IRC”) section 1361(e)(3). Specifically, if an individual or estate 

would be treated as the owner of all or a portion of a trust pursuant 
SUPREME COURT OF OHIO

6

to [26 U.S.C.] 671 et seq., then such individual or estate shall include 

in his, her or its FAGI or Ohio taxable income all relevant S 

corporation pass-through items as if the individual or estate were 

itself the actual owner of the S corporation stock owned by the trust. 

* * * 

For taxable years beginning after December 31, 1999, 

assessments for unpaid tax and all related failure-to-timely-pay and 

failure-to-timely-file charges will apply (i) to such individuals and 

estates who do not adjust their FAGI and Ohio taxable income (and 

timely pay tax and related estimated tax thereon) in accordance with 

this information release and (ii) to S corporations which do not 

timely pay the 5% withholding tax and the related estimated tax with 

respect to such S corporation distributive shares. 

(Footnote deleted.) 

{¶ 13} The discussion section states: 

The Internal Revenue Code does not contain any provisions 

which expressly state that an ESBT which also qualifies as and/or is 

described as a grantor trust is exempt from the grantor trust 

provisions. Neither does the “Blue Book” provide or address any 

such exemption. In fact, the principal advocate of the ESBT 

legislation has cautioned that the provisions of an ESBT’s governing 

instruments “* * * should be limited so that no power would result 

in the inclusion of trust assets or revenue in the trustee’s own estate 

or income.” Thus, even the principal advocate of the ESBT 

legislation implicitly recognizes that an ESBT which also qualifies 

as and/or is described as a grantor trust is, in fact, subject to the 
January Term, 2016 

7

grantor trust provisions for taxation rather than qualifying for the 

special rules for taxation of ESBT’s under IRC section 641(c). 

The Income Tax Audit Division recognizes that various tax 

practitioners have differing interpretations of how the ESBT 

provisions interplay with the grantor trust provisions of the Internal 

Revenue Code. Some have advocated that the ESBT provisions 

should take precedence over the grantor trust provisions, while 

others believe that a grantor trust cannot make the ESBT election. 

In light of the fact that neither the U.S. Treasury Department nor the 

Internal Revenue Service has issued any guidance in this area, and 

barring any change in the federal tax law or issuance of new U.S. 

Treasury regulations to the contrary, the Income Tax Audit 

Division’s position is that a grantor trust cannot make the ESBT 

election. 

(Footnotes deleted.) 

{¶ 14} In 2002, the tax department took an even more forceful position in 

PIT 2001-04 (issued July 3, 2002), available at 

http://www.tax.ohio.gov/ohio_individual/individual/information_releases/pit2002

04.aspx, stating: 

The Ohio Department of Taxation has initiated an audit 

program to identify and assess individuals who are not “adding 

back” to their federal adjusted gross income (“FAGI”) their 

distributive shares of S corporation profit which they receive via a 

trust qualifying as both an electing small business trust (“ESBT”) 

and a grantor trust. This audit initiative is based upon the 

Department’s January 19, 2000 information release directing 
SUPREME COURT OF OHIO

8

taxpayers to make the add-back to the extent taxpayers did not 

include such amounts in their FAGI. Effective for post-1999 taxable 

years, the information release provides detailed authority supporting 

the required add-back. 

Using computer programs and IRS-supplied databases, the 

Department will identify Ohio taxpayers who have not fully 

complied with the requirements of that information release. Upon 

identification of these taxpayers, the Department will issue 

assessments for tax, interest (8% for 2000, 9% for 2001, and 7% for 

2002), interest penalty (Ohio form IT-2210), and failure-to-pay 

penalty. 

The Renaccis’ 2000 return 

{¶ 15} The Renaccis filed their joint Ohio tax return for taxable year 2000 

without reporting and paying Ohio individual income tax on amounts earned by the 

“James B. Renacci Tr 1998.” That trust owned shares of three S corporations, 

whose combined corporate earnings in 2000, as reported on form FT 1120 S, were 

over $14 million. Although the Renaccis did not report the income on their joint 

return as individual taxpayers, they filed disclosures that showed that the S 

corporations were owned by the James B. Renacci trust. 

{¶ 16} In 2003, the tax commissioner audited and assessed the Renaccis in 

relation to the unreported S-corporation income. The tax commissioner computed 

the tax owed by “adding back” $13,899,960 of S-corporation income to the 

Renaccis’ federal adjusted gross income. By the tax commissioner’s corrected 

computation, the Ohio taxable-income figure was $13,730,440. 

{¶ 17} The Renaccis filed a petition for reassessment, which was denied. 

BTA No. 2006-Z-780, 2007 WL 1515135 (May 18, 2007). The Renaccis appealed 
January Term, 2016 

9

to the Ninth District Court of Appeals. Subsequently, they dismissed that appeal, 

made payment, and pursued a refund of the double-interest penalty. 

From reassessment petition to refund claim 

{¶ 18} In 2007, the Renaccis ceased contesting their tax liability based on 

Knust, 111 Ohio St.3d 331, 2006-Ohio-5791, 856 N.E.2d 243, and Lovell, 116 Ohio 

St.3d 200, 2007-Ohio-6054, 877 N.E.2d 667. They also sought a settlement 

agreement with the tax commissioner, who transmitted an offer involving a 

reduction of penalty if the taxpayer could pay in full within two weeks. The deal 

fell apart when the Renaccis sought to pay on a longer schedule. The Renaccis then 

shifted procedural gears by paying all amounts demanded by the state and pursuing 

a refund claim for the penalty amount. (The details of the settlement discussions 

form one of the grounds for the Renaccis’ claim that the commissioner abused his 

discretion. Because we resolve this case in the Renaccis’ favor on other grounds, 

we need not delve into the full details here.) 

{¶ 19} In e-mail correspondence, the Renaccis sought assurance that they 

could pursue the penalty remission through a refund claim. A tax-department 

official expressed her belief that if a refund claim were filed, the tax commissioner 

would issue a final determination that could be appealed to the BTA and thereafter 

to the courts if the penalty was not abated. 

{¶ 20} The Renaccis tendered payments of $140,000 on April 27, 2007; 

$814,650 on August 29, 2007; $425,400 on December 20, 2007; and $359,822 on 

July 15, 2008. The Renaccis dismissed their appeal from the BTA decision 

addressing the reassessment petition and, on June 23, 2009, filed their refund claim, 

seeking $359,822, the amount of penalty paid plus post-assessment interest. The 

tax commissioner denied the refund claim on the sole ground that the Renaccis 

“willfully filed their return contrary to a clear Department position.” The Renaccis 

appealed to the BTA. 

 
SUPREME COURT OF OHIO

10 

Proceedings before the BTA 

{¶ 21} Before the BTA hearing, the Renaccis attempted to depose former 

and current tax-department personnel. Although their discovery efforts were not 

entirely successful, they did subpoena former tax commissioner Thomas Zaino and 

former income-tax counsel for the tax department Jeffrey Sherman to testify at the 

BTA hearing. 

{¶ 22} The hearing on March 3, 2014, was contentious, primarily because 

the tax commissioner’s counsel insisted that evidence regarding statements of 

department personnel was barred on the grounds that it was irrelevant or was 

protected by the deliberative-process privilege. The BTA examiner at certain 

points sustained the commissioner’s relevancy objection, and the Renaccis were 

hindered in the presentation of their argument that they had acted in good faith. But 

the Renaccis managed to adduce some evidence in support of their claim that they 

had had reasonable cause to resist paying the tax. The record establishes the 

following: 

 Former income-tax counsel for the tax department Jeffrey Sherman 

confirmed that he had stated at tax conferences that the tax 

department—prior to the January 2000 information release—was not 

taxing S-corporation pass-through income from grantor trusts that had 

made the ESBT election. 

 Former tax commissioner and tax-law practitioner Thomas Zaino 

confirmed that the ESBT election created a possible tax strategy for Scorporation shareholders to minimize Ohio individual income tax. 

Zaino also confirmed his understanding that after he became tax 

commissioner in 1999, the January 2000 information release reflected a 

policy “that on a go-forward basis folks had to come forward and treat 

the grantor trusts that chose to make an ESBT election as a grantor 

trust.” 
January Term, 2016 

11 

 The tax department’s deputy tax commissioner was quoted by 

Columbus Business First in 1998 as stating that there was “an 

opportunity * * * to use this mechanism [an ESBT election for a grantor 

trust] to avoid taxation.” 

 The General Assembly considered legislation in 1998 that would ensure 

that tax would be imposed on the S-corporation pass-through income as 

a matter of state law, regardless of the proper treatment under federal 

law. 

{¶ 23} The tax commissioner offered the following evidence: 

 An affidavit by Margaret Brewer, a tax-department employee, 

indicating that the Renaccis were treated the same as similar claimants 

who failed to comply with the 2000 information release or to settle their 

cases. 

 The two information releases quoted above. 

 The testimony of an auditor to show that the tax department was 

auditing the “grantor trust/ESBT device” even before the January 2000 

information release. On cross-examination, however, it was revealed 

that the auditor knew of only a single instance of an audit applying the 

tax commissioner’s theory to a year prior to 2000 and that the audit 

occurred after 2000. 

The BTA decision 

{¶ 24} The BTA rejected the tax commissioner’s argument that the BTA 

lacked jurisdiction under R.C. 5703.60(A)(3). R.C. 5703.60 addresses the 

procedure to be followed by the tax commissioner when a taxpayer files a petition 

for reassessment. And R.C. 5703.60(A)(3) “clearly contemplates that the filing and 

final adjudication of a petition for reassessment can be followed by the filing of an 

application for refund, subject to one caveat—that objections decided on the merits 
SUPREME COURT OF OHIO

12 

on appeal of the petition for reassessment may not be relitigated through an 

application for refund.” BTA No. 2012-1850, 2014 WL 5093565 *3 (Oct. 1, 2014). 

{¶ 25} Turning to the merits, the BTA noted that the final determination 

states that the Renaccis “ ‘willfully filed their return contrary to a clear Department 

position.’ ” Id. at *4. Because the tax commissioner “provided clear direction as 

to his change in policy regarding the taxation of income to grantors of ESBT trusts, 

[the Renaccis’] failure to follow the commissioner’s clear instructions was 

reasonably found by the commissioner to be willful neglect, and not action in good 

faith.” Id. at *5. Thus, the BTA held, reliance on the absence of an IRS regulation 

and the dissent in Knust did not suffice to establish good faith. The BTA affirmed 

the denial of penalty remission, and the Renaccis appealed to this court. The tax 

commissioner then filed a cross-appeal.

ANALYSIS 

The Renaccis had the right to seek a refund of penalty under 

the former version of R.C. 5747.11 

{¶ 26} As a protective cross-appeal, the tax commissioner asserts that he 

and the BTA lacked jurisdiction to grant the relief from penalty sought by the 

Renaccis in these proceedings. At the time the present refund claim was initiated, 

R.C. 5747.11(A) provided that the tax commissioner “shall refund to * * * 

taxpayers * * * (3) Amounts in excess of one dollar paid on an illegal, erroneous, 

or excessive assessment.” Am.Sub.H.B. No. 530, 151 Ohio Laws, Part IV, 6699. 

In 2013, R.C. 5747.11(A) was amended to require that the tax commissioner 

“refund to * * * taxpayers * * * the amount of any overpayment of such tax.” 2013 

Am.Sub.H.B. No. 59. Under the amended version of the statute, the tax 

commissioner has a strong argument for limiting the refund claim to the amount of 

overpayment of tax. But the version in effect when the refund claim was filed 

expressly authorizes a claim for refund of any payment on an “excessive” 

assessment. 
January Term, 2016 

13 

{¶ 27} We see no reason to conclude that the language of the former version 

does not authorize a penalty-only refund claim when, as in this case, the taxpayer 

submits that the assessment of the penalty is excessive. Indeed, “excessive” is an 

additional category that does not require that the amount assessed be illegal or 

erroneous. The former statute thereby opens the door to a claim challenging the 

penalty without challenging the tax. Because the wording of the statute appears to 

broaden the scope of the relief available, we are bound to extend the statute’s 

operation to its full breadth. See Phoenix Amusement Co. v. Glander, 148 Ohio St. 

592, 76 N.E.2d 605 (1947), paragraph one of the syllabus (“Statutory provisions 

for the refund of taxes illegally or erroneously paid or paid on an illegal or 

erroneous assessment should be liberally construed in favor of the taxpayer”). 

{¶ 28} The tax commissioner cites two decisions of this court that involve 

the corporate franchise tax rather than the individual income tax. Neither case 

addresses a claim of refund brought after full payment; instead, they both involve 

a challenge to a deficiency assessment. See Internatl. Business Machines Corp. v. 

Zaino, 94 Ohio St.3d 152, 761 N.E.2d 20 (2002); Lancaster Colony Corp. v 

Lindley, 61 Ohio St.2d 268, 400 N.E.2d 905 (1980). Internatl. Business Machines 

states, “When the tax commissioner has made an assessment under R.C. 5733.11, 

the amount that may be contested and refunded under that statute is limited to the 

amount paid on the deficiency assessment.” Id. at syllabus. 

{¶ 29} The tax commissioner also cites sales-tax cases that were decided by 

the Board of Tax Appeals. Stevens v. Tracy, BTA No. 94-H-1166, 1995 Ohio Tax 

LEXIS 1265 (Oct. 20, 1995); Tenbrink v. Tracy, BTA No. 95-R-181, 1995 Ohio 

Tax LEXIS 1487 (Dec. 8, 1995); and Clarkson v. Tracy, BTA No. 97-S-135, 1997 

Ohio Tax LEXIS 1152 (Aug. 29, 1997). These cases provide no more guidance 

than the franchise-tax cases cited above. Each of these decisions involves sales-tax 

assessments during the 1990s against vendors who apparently failed to collect and 

remit sales taxes to the state. The vendors apparently paid the full assessments, 
SUPREME COURT OF OHIO

14 

then sought refunds of the penalty amounts. Those decisions have no bearing on 

this case because the sales-tax statutes of that time explicitly created separate 

procedures for tax refunds and penalty remissions and the vendors had followed the 

wrong procedures. See Clarkson at 6. 

Determining whether a taxpayer had reasonable cause to resist paying 

a tax requires considering whether the taxpayer acted in good-faith 

reliance on a reasonable interpretation of the law 

{¶ 30} The Renaccis’ first assignment of error is dispositive of this appeal 

in their favor, so we will not address their other four arguments. The Renaccis 

argue that the tax commissioner abused his discretion under R.C. 5747.15 by basing 

his finding of willful neglect solely on their failure to comply with the precise 

instructions of an information release. 

{¶ 31} R.C. 5747.15(A)(2) provides that “a penalty may be imposed not 

exceeding twice the applicable interest charged * * * for the delinquent payment.” 

R.C. 5747.15(C) authorizes the tax commissioner to abate a penalty imposed under 

R.C. 5747.15 “if the taxpayer * * * shows that the failure to comply with the 

provisions of [the income-tax law] is due to reasonable cause and not willful 

neglect.” The statute prescribes a standard for abating the penalty and entrusts the 

determination whether to impose or to abate the penalty to the tax commissioner’s 

ultimate discretion. The latter point is expressed by the statute’s use of the word 

“may,” which we have held in similar contexts to constitute a grant of discretionary 

authority. J.M. Smucker, L.L.C. v. Levin, 113 Ohio St.3d 337, 2007-Ohio-2073, 

865 N.E.2d 866, ¶ 14-15. 

{¶ 32} The discretionary nature of the tax commissioner’s determination 

means that both the BTA and this court must review the denial of remission here to 

determine whether the tax commissioner abused his discretion, not whether we 

would have reached a different conclusion. Id. at ¶ 16 (“Because the Tax 

Commissioner has discretion to grant or deny an abatement of a late-filing penalty, 
January Term, 2016 

15 

the BTA and the court must apply an abuse-of-discretion standard”). Abuse of 

discretion connotes an unreasonable, arbitrary, or unconscionable attitude. Id. 

The BTA erred by failing to acknowledge the taxpayers’ 

reasonable-cause argument 

{¶ 33} The tax commissioner’s final determination recites only one reason 

to support the finding of willful neglect, that “[t]he claimants willfully filed their 

[2000] return contrary to a clear Department position.” The claimants “failed to act 

in good faith,” according to the commissioner’s determination, because they were 

“made aware of the Department’s change in policy” through the 2000 information 

release and then failed to act in accordance with its terms. 

{¶ 34} In upholding this determination, the BTA stated that the Renaccis’ 

challenge relied only on “the absence of IRS regulation on the issue” of their tax 

obligation and on the dissenting opinion in Knust. (Emphasis sic.) 2014 WL 

5093565, *5. That is a gross misstatement. The Renaccis have consistently stated 

throughout these proceedings that they were relying on the interpretation of the 

federal statute that the tax commissioner had abandoned, i.e., the interpretation that 

the trust rather than the grantor was to report and pay tax on the distributive-share 

income. That the tax commissioner changed his view of the federal statute does 

not make the earlier reading unreasonable. 

{¶ 35} By failing to acknowledge that federal law constituted an element of 

the Renaccis’ reasonable-cause argument, the BTA acted unreasonably and 

unlawfully in its review of the commissioner’s determination. That failure blinded 

the BTA to the arbitrary nature of a determination that sustains a penalty without 

consideration of any factor other than that the taxpayer did not abide by the tax 

department’s information release. 

 
SUPREME COURT OF OHIO

16 

Equating a taxpayer’s good-faith insistence on its legal rights with willful 

neglect shows an arbitrary and unconscionable attitude 

{¶ 36} The tax commissioner’s insistence that any departure from his 

published instructions negates the taxpayer’s good faith is arbitrary. The 

reasonableness of the taxpayer’s interpretation of the federal statute is relevant to 

the determination whether the taxpayer had reasonable cause to resist the tax 

commissioner’s interpretation. Neither the commissioner nor the BTA even 

considered whether the statute could fairly be read in favor of the Renaccis’ 

position. Instead, the tax commissioner’s information releases were deemed to be 

fully dispositive. Moreover, it does not make sense to regard the mere publication 

by the tax commissioner of his interpretation of federal law as establishing that the 

taxpayer’s contrary view is unreasonable. 

{¶ 37} An information release does not create legal obligations by its own 

force—a fact that both the commissioner and the BTA ignore when they measure 

the Renaccis’ good faith solely in terms of their willingness to abide by demands 

set forth in the tax department’s pronouncements. We have repeatedly held that 

when the tax commissioner seeks to exercise administrative authority in a 

systematic way over a broad range of taxpayer claims, he must promulgate his 

pronouncement as an administrative rule. See Progressive Plastics, Inc. v. Testa, 

133 Ohio St.3d 490, 2012-Ohio-4759, 979 N.E.2d 280, ¶ 31 (tax commissioner 

“ ‘cannot confer the force of law on a requirement without promulgating it as a 

rule’ ”), quoting HealthSouth Corp. v. Testa, 132 Ohio St.3d 55, 2012-Ohio-1871, 

969 N.E.2d 232, ¶ 33, citing McLean Trucking Co. v. Lindley, 70 Ohio St.2d 106, 

114-116, 435 N.E.2d 414 (1982), and Condee v. Lindley, 12 Ohio St.3d 90, 92-92, 

465 N.E.2d 450 (1984). The ambivalence of the IRS with respect to periods not 

covered by the treasury regulation, coupled with the absence of Ohio statutory 

authority for an add-back of the distributive share, militates strongly in favor of 

requiring the tax commissioner to proceed by rulemaking in this context. 
January Term, 2016 

17 

{¶ 38} The tax commissioner also insists that the penalty is justified 

because the Renaccis presented an unusually intransigent case of taxpayer 

resistance to his demands. At oral argument, counsel for the tax commissioner 

stated that “everybody else,” or “virtually everybody,” paid up front. Even 

allowing some latitude for exaggeration, we find no support for this assertion. We 

have issued no fewer than three decisions that addressed the ESBT issue: Knust, 

111 Ohio St.3d 331, 2006-Ohio-5791, 856 N.E.2d 243; Lovell, 116 Ohio St.3d 200, 

2007-Ohio-6054, 877 N.E.2d 667; and Brown, 119 Ohio St.3d 335, 2008-Ohio4081, 894 N.E.2d 35. Those three appeals presented a total of seven taxpayer 

claims; of those, three sought refunds because the taxpayers had paid up front and 

four involved taxpayers who had not paid up front. We conclude that the range of 

taxpayer responses was much more divided than the tax commissioner 

acknowledged. 

{¶ 39} We hold that the BTA unreasonably and unlawfully permitted the 

tax commissioner to predicate the reasonable-cause determination exclusively on 

compliance with the tax department’s information releases that had no force of law. 

We therefore reverse the BTA’s conclusion that the tax commissioner acted within 

his discretionary authority in denying the claim for refund of the double-interest 

penalty. 

The Renaccis had reasonable cause to resist paying until our 

2007 decision in Lovell v. Levin

{¶ 40} The tax commissioner also contends that even if the Renaccis had 

reasonable cause to resist paying the tax when it was first assessed, reasonable 

cause evaporated with the announcement of Knust, 111 Ohio St.3d 331, 2006-Ohio5791, 856 N.E.2d 243, on November 22, 2006. This argument places emphasis on 

the delay of payment between that date and the Renaccis’ tender of payment in four 

increments: $140,000 on April 27, 2007; $814,650 on August 29, 2007; $425,400 

on December 20, 2007, and $359,822 on July 15, 2008. We find that the Renaccis 
SUPREME COURT OF OHIO

18 

had reasonable cause to resist paying the assessment until the announcement of 

Lovell, 116 Ohio St.3d 200, 2007-Ohio-6054, 877 N.E.2d 667, on November 20, 

2007, because the Renaccis argued that their situation was not controlled by the 

treasury regulation, as the claim in Knust was. Only in Lovell did we address and 

dispose of the claims of taxpayers who, like the Renaccis, claimed to be immune 

because the federal regulation did not apply. Compare Knust, ¶ 30, with Lovell, 

¶ 28. 

{¶ 41} To be sure, Lovell placed little significance on the federal regulation, 

citing Knust for the proposition that the regulation merely “amplifies” the statutory 

basis for ruling in favor of the state’s position. Lovell, ¶ 28. But that ruling in 

Lovell itself does not affect the claim of reasonable cause, because the claimants in 

Lovell had a substantial argument that their cases should be treated differently than 

those of the claimants in Knust. 

{¶ 42} As explained earlier in this opinion, federal adjusted gross income 

constitutes the starting point for determining Ohio adjusted gross income. 

Arguably, if federal authorities treated the income as properly reportable by and 

taxable to the trust instead of the grantor, the tax commissioner had no basis in Ohio 

law for ordering an “add-back” for Ohio income-tax purposes. This was an 

argument raised in Lovell. In this case, the tax commissioner has never contested 

the Renaccis’ assertion that their situation is not subject to the treasury regulation. 

Accordingly, we conclude that the Renaccis could reasonably have awaited the 

outcome of Lovell for potential relief from the tax assessment against them. 

Because Lovell was not decided until November 2007, when the Renaccis were 

already in the process of paying their assessment, we hold that their claim of 

reasonable cause extended into the time frame in which they were making payment. 

 
January Term, 2016 

19 

The taxpayers’ interpretation of the federal statutes was 

reasonable even though mistaken 

{¶ 43} The component of our analysis that is not yet explicit is the 

reasonableness of the Renaccis’ interpretation of the federal statutes. As our 

previous discussion indicates, we regard that interpretation as reasonable, even 

though it proved to be mistaken. In 1996, the ESBT provision was added to the 

Internal Revenue Code. Pub. L. No. 104-188, 110 Stat. 1755. Its terms prescribe 

how the S-corporation portion of an ESBT is to be taxed as a trust. Namely, 26 

U.S.C. 641(c) provides that the “portion of any electing small business trust which 

consists of stock in 1 or more S corporations shall be treated as a separate trust,” 

and that portion is then subjected to special taxation rules by the statute as a trust. 

An initial reading could reasonably construe an intent to make a specific 

dispensation with respect to ESBTs under subpart A (26 U.S.C. 641 et seq.) that 

would exempt them from the operation of the grantor-trust rule in subpart E (26 

U.S.C. 671 et seq.). In Knust, we held the contrary, construing the ESBT language 

as meaning that “when an income tax is imposed on a trust, that tax is to be 

calculated in a specified way.” Id., ¶ 25. 

{¶ 44} The taxpayers’ alternative reading is not unreasonable. We 

predicate our determination of reasonableness on our own reading of the federal 

statutes plus the inferences that we draw from the tax commissioner’s information 

releases when read in conjunction with our decisions in Knust, Lovell, and Brown.

CONCLUSION 

{¶ 45} For the foregoing reasons, we reverse the decision of the BTA and 

remand the cause to the tax commissioner with instructions that the double-interest 

penalty be refunded, along with any interest paid that was associated with that 

penalty. 

Decision reversed 

and cause remanded. 
SUPREME COURT OF OHIO

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O’DONNELL, LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ., concur. 

O’CONNOR, C.J., concurs in judgment only. 

_________________ 

 Buckingham, Doolittle & Burroughs, L.L.C., Steven A. Dimengo, and 

Matthew R. Duncan, for appellants and cross-appellees. 

 Michael DeWine, Attorney General, and Barton A. Hubbard, Assistant 

Attorney General, for appellee and cross-appellant. 

_________________